20160126Application.pdf

ROCKY MOUNTAIN
ngtvHn,,,
1407 W. North Temple, Suite 330
Salt Lake city, utah 841l6
January 26,2016
VA OVERNIGHT DELIWRY
Idaho Public Service Commission
472 W . Washington Street
P.O. Box 83720
Boise, Idaho 83720-007 4
Boise,ldaho
Attention: Jean D. Jewell
Commission Secretary
RE: CASE NO. PAC-E-16-03,
IN THE MATTER OF THE APPLICATION OF ROCKY MOUNTAIN POWER
FOR AN ORDER EXTENDING THE SHORT.TERM DEBT AUTHORITIES
FIVE YEARS
Please find enclosed the original and seven (7) copies of Rocky Mountain Power's Application
for an order extending the short-term debt authorities granted to the Company in Case No. PAC-
E-11-09 for an additional five years, or through April 30, 2021, on the condition that the
Company's senior secured debt be rated at "investment grade" by both Standard & Poor's Rating
Service and Moody's lnvestor Services, [nc.
The Company respectfully requests that the Commission issue an order on or before March 29,
2016, extending the short-term debt authorities an additional five years. The Company also
requests twenty certified copies of any order issued in this matter. Notice of this Application will
be published within seven days as required by the Commission's Rules of Procedure. Please note
that the Company's Application Fee in the amount of $1,000 is being submitted under separate
cover.
Please contact Ted Weston directly at [phone] if you have any further questions.
Sincerely,
ldaho Public Utilities Commission
Oflice ol the SecretaryRECEIVED
JAN 2 6 20t6
J"#ylf, Lartt**/n,^,
Jeffrey K. Larsen
Vice President, Regulation
Enclosures
Daniel E. Solander (ISB# 8931)
Senior Counsel
1407 West North Temple, Suite 320
Salt Lake city uT 841I I
Telephone : (80 l) 220 -40 I 4
FAX: [phone]
Email : daniel.solander@paci fi corp.com
Attorneyfor Rocky Mountain Power
IN THE MATTER OF THE APPLICATION
OF ROCKY MOUNTAIN POWER FOR AN
ORDER EXTENDING THE SHORT.TERM
DEBT AUTHORITIES FIVE YEARS
BEFORE THE IDAIIO PUBLIC UTILITIES COMMISSION
)
)
)
)
)
CASE NO. PAC-E-16.03
APPLICATION
Rocky Mountain Power, a division of PacifiCorp (the "Company"), pursuant to Idaho
Code $$ 6l-901 through 6l-904 and Rules l4l through 147 of the Rules of Procedure of the
Idaho Public Utility Commission (the "Commission"), hereby respectfully makes application to
the Commission for an order on or before March 29, 2016, extending the short-term debt
authorities granted in Case No. PAC-E-I l-09 for an additional five years, or through April 30,
2021, on the condition that the Company's senior secured debt be rated at "investment grade" by
both Standard & Poor's Rating Service and Moody's Investor Services, Inc. In support of its
Application, the Company represents as follows:
INTRODUCTION
l. Rocky Mountain Power is an electrical corporation and public utility in
the state of Idaho, subject to the jurisdiction of the Commission with regard to its rates,
service and accounting practices, $ 6l-129 . Rocky Mountain Power also provides retail
electricity service in the states of California, Oregon, Utah, Washington, and Wyoming.
Rocky Mountain Power's address is 1407 West North Temple, Salt Lake City, Utah
84116.
COMMUNICATIONS
2. Notice of this Application will be published in the Post Register in Idaho Falls
which is in general circulation in the Company's service area in Idaho within seven (7)
days of the application.
3. Communications regarding this Application should be addressed to:
Ted Weston
Idaho State Manager
Rocky Mountain Power
1407 West North Temple, Suite 330
Salt Lake City, UT 84116
Telephone: [phone]
Facsimile: (801) 220- 4648
E-mail : Ted.Weston@Pac ifi Corp.com
Daniel ,"rr*
Senior Counsel
Rocky Mountain Power
1407 West North Temple, Suite 320
Salt Lake City UT 84116
Telephone: [phone]
Facsimile: [phone]
E-mail : Dani el.Solandert?,Pacifi Corp.com
In addition, Rocky Mountain Power respectfully requests that all data requests
regarding this matter be addressed to:
By e-mail (preferred):
By regular mail:
datareq u e st(r).p ac i fi corp. co m
Data Request Response Center
PacifiCorp
825 NE Multnomah, Suite 2000
Portland, OR 97232
State Manager [phone].Informal inquiries may be directed to Ted Weston,
BACKGROUND
4. On February 24,2006, PacifiCorp filed an Application requesting authorization to
borrow not more than $1.5 billion aggregate principal amount in short-term debt through
April 30, 2011. On March 14, 2006, the Commission granted the Company's
Application in Order No. 29999.
5. On March 9,2011, the Company requested that the authorities granted under Case
No. PAC-E-06-01 be extended for an additional five years, or through April 30, 2076, on
the condition that the Company's senior secured debt be rated at "investment grade" by
both Standard & Poor's Rating Service and Moody's Investor Services, Inc. On April 8,
201 I the Commission granted the Company's application in Order No. 32221.
REQUEST
The Company respectfully requests that the Commission extend these short term debt
authorities an additional five years through April 30,2021, by authorizing the Company to issue
from time to time its unsecured short-term promissory notes to and borrow from U.S. or foreign
commercial banks (or their affiliates) under the following facilities: (a) not more than $1.5
billion in aggregate principal amount outstanding at any one time under one or more revolving
credit agreements (Agreements); and (b) not more than $1.5 billion in aggregate principal
amount outstanding at any one time under other borrowing arrangements (Other Arrangements).
The Company also respectfully request authorization to issue and sell its commercial paper
(Paper) in the U.S. or overseas, from time to time through April 30, 2021, in aggregate principal
amounts not to exceed $1.5 billion outstanding at any one time; provided that the aggregate
principal amounts outstanding under the Agreements, Other Arrangements and Paper not exceed
$1.5 billion atany one time.
7. The Company currently has two revolving credit agreements totaling $1.2 billion, under
the terms of which the Company may borrow up to the full amount or have letters of credit
issued in an amount up to $400 million or a combination thereof. These credit agreements
currently have final termination dates of June28,2017 ($600 million of commitments presently)
and March 27,2018 ($600 million of commitments presently).
8. Without the Commission's extension of the authorities most recently granted in Order
No.32221, the Company will be unable to utilize the credit agreements after April 30, 2016, or
to arrange for the issuance of letter of credit pursuant to the credit agreements. For the
Commission's reference copies of these credit agreements are provided as an attachment to this
Application. Further, the Company will be significantly limited in its ability to issue commercial
paper after April 30, 2016, without the Commission's extension of the authorities previously
granted.
MODIFIED PROCEDURE
9. Rocky Mountain Power believes that consideration of the proposals contained in
this Application does not require an evidentiary proceeding, and accordingly the
Company requests that this Application be processed under RP 201 allowing for
consideration of issues under Modified Procedure, i.e., by written submissions rather than
by an evidentiary hearing.
WHEREFORE, Rocky Mountain Power respectfully requests that the
Commission issue an order on this matter on or before March 29,2016, extending the
short-term debt authorities described herein for an additional five years, or through April
30, 2021, on the condition that the Company's senior secured debt be rated at
"investment grade" by both Standard & Poor's Rating Service and Moody's Investor
Services, Inc. The Company also respectfully requests twenty (20) certified copies of the
Commission's final order in this matter.
DATED: January 26,2016
Daniel E. Solander
Attomey for Rocky Mountain Power
Respectfu lly submitted,
\2,;*rj,^
Attachment A
Credit Agreement Copies
VPacrnConp\ AMDAr,tcitc N Et{ERoYl{oumscoi,ltNY
July 16,2012
YIA OWRNIGHT DELIWRY
Idaho Public Utilities Commission
47 2 W est Washington Steet
Boise,Idaho 83720
Attrr: Ms. Jean Jewell
Commission SecretarY
Re: Case No. PAC-E-11-09
Order No.32221
Report of New Credit Agreement for Short-Term Debt
Dear Commissioners:
Pursuant to the referenced Order, PacifiCorp submits to the Commission one verified copy of
the $600,000,000 Credit Agreement, dated as of June 28,2012, among PacifiCorp, the Banks
party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.
This credit agreement replaces the $700,000,000 Credit Agreement dated as of October 23,
2007 which was terminated on Juue 28, 2012.
Because PacifiCorp has not made any new borrowings 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 documents, and
they are true, correct and complete.
Please contact me at [phone] if yot have any questions about this letter or the
enclosed documents.
Sincerely,
'(\^^'- $J UJ0"^-
Bruce N. Williams
Vice President and Treasurer
Enclosure
Terri Carlock
Ted Weston
Pacitic Forerl
Rocky Mountain Fowerl
hdfiCorp Energy
825 NE Multnomah, Suhe 1900 LCT
Pordand, Oregon 97732
Cc:
EXECUTION COPY
u.s. $600,000,000
CREDIT AGREEMENT
Dated as of June 28,2012
Among
PACIFICORP
as the Borrower
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
JPMORGAN CHASE BANK, N.A.
as Administrative Agent and Swingline Lender
and
THE LC ISSUING BANKS
PARTY HERETO FROM TIME TO TIME
as LC Issuing Banks
RBS SECURITIES INC.
Global Coordinator
RBS SECURITIES INC.
J.P: MORGAN SECTJRITIES LLC
UNION BANK N.A.
THE ROYAL BANK OF SCOTLAIID PLC
uNroN BANri N.A.
Syndication Agents
BARCLAYS BANKPLC
U.S. BANK NATIONAL ASSOCIATION
WELLS F'ARGO SECI]RITIES, LLC
Joint Lead Aruangers
BARCLAYS BAIIKPLC
U.S. BANK NATIONAL ASSOCIATION
WELLS FARGO BANK NATIONAL
ASSOCIATION
Documentation Agents
19095107
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.... ............1
SECTION 1.01. Certain Defined Terms. ...........1
SECTION 1.02. Computation of Time Periods. ................21
SECTION 1.03. Accounting Terms................ ...................21
SECTION 1.04. Classification of Loans and Borrowings........... ........22
ARTICLE II AMOUNTS AND TERMS OF THE EXTENSIONS OF CREDIT.................22
SECTION 2.01. The Revolving Loans. ...........22
SECTION 2.02.Making the Revolving Loans ..................22
SECTION 2.03. Swingline Loans. ...................24
SECTION 2.}4.Letters of Credit. ...................25
SECTION 2.05. Fees. ....................30
SECTION 2.06. Extension of the Termination Date. ........30
SECTION 2.07.Increase of the Commitments............ .......................31
SECTION 2.08. Termination or Reduction of the Commitments............. ............32
SECTION 2.09. Repayment of Loans. ........... ...................33
SECTION 2.10. Evidence of Indebtedness.... ....................34
SECTION 2.1l. [nterest on Loans ...................34
SECTION 2.72.Interest Rate Determination............ ........35
SECTION 2.13. Conversion of Revolving Loans. ............35
SECTION 2.l4.Optional Prepayments of Loans................ ................37
SECTION 2.ll.Increased Costs. ....................37
SECTION 2.l6.lllegality. ........... ....................38
SECTION 2.l7.Payments and Computations.............. .......................39
SECTION 2.18. Taxes ...................40
SECTION 2.19. Sharing of Payments, Etc. .....44
SECTION 2.20.Mitigation Obligations; Replacement of Lenders............... ........45
SECTION 2.21. Defaulting Lenders............... ...................46
SECTION 2.22. Cash Collateral. .....................49
ARTICLE III CONDITIONS PRECEDENT .50
SECTION 3.01. Conditions Precedent to Effectiveness............... .......50
SECTION 3.02. Conditions Precedent to each Extension of Credit.............. ........51
SECTION 3.03. Conditions Precedent to Issuance of Each Bond Letter of Credit.................52
ARTICLE IV REPRESENTATIONS AND WARRANTIES .............54
SECTION 4.01. Representations and Warranties ofthe Borrower. ......................54
ARTICLE V COVENANTS OF THE BORROWER
ARTICLE VI EVENTS OF DEFAULT .....................62
SECTION 6.01. Events of Default. ............... ....................62
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default................ .............64
ARTICLE VII THE ADMINISTRATIVE AGENT ...................65
SECTION 7.01. Appointment and Authority............. .......65
SECTION 7.02. Rights as a Lender............... ....................65
SECTION 7.03. Exculpatory Provisions. ........66
SECTION 7.04. Reliance by Administrative Agent........ ....................67
SECTION 7.05. Resignation of Administrative Agent. ......................67
SECTION 7.06. Non-Reliance on Administrative Agent and Other Lenders. ......68
SECTION 7.07. Indemnification. ....................69
SECTION 7.08. No Other Duties, etc............. ...................69
ARTICLE Vrrr MISCELLAT[EOUS............. ......................69
SECTION 8.01. Amendments, E1c............ ......69
SECTION 8.03. No Waiver; Remedies. ..........72
SECTION 8.04. Costs and Expenses; Indemnification. ......................72
SECTION 8.05. Right of Set-off. ....................74
SECTION 8.06. Binding Effect. ......................75
SECTION 8.07. Assignments and Participations. .............75
SECTION 8.08. Confidentiality. .....................79
SECTION 8.09. Goveming Law. ....................80
SECTION 8.10. Severability........... ................80
SECTION 8.1l. Execution in Counterparts................ .......80
SECTION 8.12. Jurisdiction, Etc............. ........80
SECTION 8.13. Waiver of Jury Trial.......... ......................81
SECTION 8.14. USA Patriot Act............ ........81
SECTION 8.15. No Fiduciary Duty. ...............82
SECTION 8.16. Waiver of Notice of Termination of Existing Credit Agreement. ................82
EXHIBITS AND SCHEDULES
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D-1
EXHIBIT D-2
EXHIBIT E
EXHIBIT F-I
Form ofNotice of Borrowing
Form ofRequest for Issuance
Form of Assignment and Assumption
Form of Opinion of ln-House Counsel for the Borrower
Form of Opinion of Special New York Counsel to the Borrower
Form of Opinion of Counsel for the Administrative Agent
Form of U.S. Tax Compliance Certificate (For Foreign Lenders
That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Participants
That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Participants
That Are Partnerships For U.S. Federal Income Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Lenders
That Are Partnerships For U.S. Federal Income Tax Purposes)
List of Commitment Amounts and Applicable Lending Offices
List of Fronting Commitments
List of Material Subsidiaries
EXHIBIT F-2 --------
EXHIBIT F-3
EXHIBIT F-4
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of June 28, 2012 (this "Agreemcnt"), among
PACIFICORP, an Oregon corporation (the"Bonower"), the banks, financial institutions and
other institutional lenders listed on the signatures pages hereof (the "Initial Lenders"),
JPMORGAN CHASE BANK, N.A. (*JPMCB"), as administrative agent (in such capacity, the
"Administrative Agenf') for the Lenders (as hereinafter defined) and as Swingline Lender (as
hereinafter defined), and the LC Issuing Banks (as hereinafter defined) party hereto from time to
time.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Deftned Terms.
As used in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the terms defined):
*Administrative Agent" has the meaning specified in the first paragraph of this
Agreement.
"Administrative Questionnoire" means an administrative questionnaire in a form
supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, controls or is controlled by or is under
common control with the Person specified. For purposes of this definition, the term
"control" (including the terms "controlled by" and "under common control with") of a
Person means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the ability to
exercise voting power, by contract or otherwise.
'oAgent Parties" has the meaning specified in Section 8.02(d)(ii).
"Agent's Account" means the account of the Administrative Agent designated
from time to time in a written notice to the Lenders and the Borrower as the account to
which the Lenders are to fund Borrowings and the Borrower is to make payments under
this Agreement.
*Applicable LAw" means (i) all applicable common law and principles of equity
and (ii) all applicable provisions of all (A) constitutions, statutes, rules, regulations and
orders of all Governmental Authorities, (B) Governmental Approvals and (C) orders,
decisions, judgments and decrees of all courts (whether at law or in equity or admiralty)
and arbitrators.
2
"Applicable Lending Office" means, with respect to each Lender, such Lender's
Domestic Lending Office in the case of a Base Rate Loan and such Lender's Eurodollar
Lending Office in the case of a Eurodollar Rate Revolving Loan.
"Applicable Margin" means, with respect to any Base Rate Loan and any
Eurodollar Rate Revolving Loan, at all times during which any Applicable Rating Level
set forth below is in effect, the rate per annum (except as provided below) for such Loan
set forth below next to such Applicable Rating Level:
Applicable
Rating Level
Applicable Margin
for Eurodollar
Rate
Revolvine Loans
Applicable Margin
for Base Rate
Loans
1.000%0.000%
2 1.12s%0.125%
aJ r.250%0.250%
4 1.500%0.500%
5 1.750%0.750%
provided, that the Applicable Margins set forth above shall be increased, for each
Applicable Rating Level, upon the occurrence and during the continuance of any Event of
Default by 2.00% per annum. Any change in the Applicable Margin resulting from a
change in the Applicable Rating Level shall become effective upon the date of
announcement of any change in the Moody's Rating or the S&P Rating that results in
such change in the Applicable Rating Level.
"Applicable Rating Levef' at any time shall be determined in accordance with the
then-applicable S&P Rating or the then-applicable Moody's Rating as follows:
The Applicable Rating Level for any day shall be determined based upon the higher of
the S&P Rating and the Moody's Rating in effect on such day. If the S&P Rating and the
Moody's Rating are not the same (i.e., a "split rating"), the higher of such ratings shall
control, unless the ratings differ by more than one level, in which case the rating one
level below the higher of the two ratings shall control.
S&P Ratinp/lVloodv's Ratins
Applicable Rating
Level
S&P Ratins A or hisher or Moodv's Ratins A2 or hisher I
S&P Ratins A- or Moodv's Ratins A.3 2
S&P Rat ns BBB+ or Moody's Rating Baal J
S&P Rat ns BBB or Moodv's Ratins Baa2 4
S&P Ratins BBB- or Moodv's Ratins Baa3 or below or unrated 5
J
"Approved Fund' means any Fund that is administered or managed by (i) a
Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.
o'Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an Eligible Assignee (with the consent of any party whose consent is
required by Section 8.07), and accepted by the Administrative Agent, in substantially the
form of Exhibit C or any other form approved by the Administrative Agent.
"Available Commitments" means, on any duy, the aggregate unused
Commitments, computed after giving effect to all Extensions of Credit made or to be
made on such day, the application of proceeds therefrom and all prepayments and
repayments of Revolving Loans made on such day.
"Bankruptcy Evenf'means, with respect to any Person, such Person becomes the
subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, custodian, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or assets (including the Federal
Deposit Insurance Corporation or any other Governmental Authority acting in a similar
capacity) appointed for it, provided that a Bankruptcy Event shall not result solely by
virtue of any ownership interest, or the acquisition of any ownership interest, in such
Person or a direct or indirect parent company of such Person by a Governmental
Authority if and for so long as such ownership interest does not result in or provide such
Person with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Person (or
such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or
agreements made with such Lender.
"Base Rale" means a fluctuating interest rate per annum in effect from time to
time, which rate per annum shall at all times be equal to the highest of:
(i) the rate of interest announced by JPMCB from time to time as JPMCB's
prime rate;
(ii) 112 of loh per annum above the Federal Funds Rate; and
(iii) the rate of interest per annum equal to BBA LIBOR, as published on
Bloomberg L.P.'s page BBAM (or another commercially available source
providing quotations of BBA LIBOR as designated by the Administrative
Agent from time to time) at approximately I l:00 a.m., London time, on
the date of determination for a term of one month (or if no such rates are
quoted on such day for any reason, the previous day for which quotations
are available) plus l%o; provided, ltowever, if more than one rate is
specified on such service, the applicable rate shall be the arithmetic mean
of all such rates plus lolo.
"Base Rate Loan" means a Loan that bears interest as provided in Section
2.1 l(a).
4
"Berkshire Hathaway" means Berkshire Hathaway Inc.
"Bond Event of Defaulf'has the meaning specified in Section 6.01.
"Bond Letter of Credif' means any standby or direct pay letter of credit issued by
an LC Issuing Bank pursuant to Section 2.04 to support certain obligations to pay the
principal of, interest on and/or purchase or redemption price of Bonds.
"Bonds" means pollution control revenue bonds or industrial development
revenue bonds (or similar obligations, however designated) issued pursuant to an
Indenture between the Trustee and the Issuer named therein.
'oBorrower" has the meaning specified in the first paragraph of this Agreement.
"Borrowing" means a borrowing by the Borrower consisting of (i) simultaneous
Revolving Loans of the same Type, having the same Interest Period and ratably made or
Converted on the same day by each of the Lenders pursuant to Section 2.02 or 2.13, as
the case may be or (ii) a Swingline Loan. All Revolving Loans to the Borrower of the
same Type, having the same Interest Period and made or Converted on the same day shall
be deemed a single Borrowing hereunder until repaid or next Converted.
"Botowing Date" means the date of any Borrowing.
"Business Doy" means a day of the year on which banks are not required or
authorized by law to close in New York City or Los Angeles and, if the applicable
Business Day relates to any Eurodollar Rate Revolving Loans, "Business Day" also
includes a day on which dealings are carried on in the London interbank market.
uCosh Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of one or more of the LC Issuing Banks and the
Lenders, as collateral for LC Outstandings and obligations of Lenders to fund
participations in respect of LC Outstandings, cash or deposit account balances or, if the
Administrative Agent and each applicable LC Issuing Bank shall agree in their sole
discretion, other credit support, in each case pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent and each applicable LC
Issuing Bank. "Cash Collateraf'shall have a meaning correlative to the foregoing and
shall include the proceeds ofsuch cash collateral and other credit support.
"Change in Law" means the occurrence, after the date of this Agreement, of any
of the following: (i) the adoption of any law, rule, regulation or treaty, (ii) any change in
any law, rule, regulation or treaty or in the administration, interpretation, implementation
or application thereof by any Governmental Authority or (iii) the making or issuance of
any request, rule, guideline or directive (whether or not having the force of law) by any
Governmental Authority; provided that notwithstanding anything herein to the contrary,
(x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines or directives (whether or not having the force of law) thereunder or
issued in connection therewith and (y) all requests, rules, guidelines or directives
(whether or not having the force of law) promulgated by the Bank for International
Settlements, the Basel Committee on Banking Supervision (or any successor or similar
authority) or the United States or foreign regulatory authorities, in each case pursuant to
Basel III, shall in each case be deemed to be a "Change in Law", regardless of the date
enacted, adopted or issued.
"Change of Controf'has the meaning specified in Section 6.01(h).
"CIM'means the Confidential Information Memorandum of the Borrower, dated
June 2012, as supplemented from time to time.
"Class", when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are Revolving Loans or Swingline
Loans.
"Commitmenf' means, for each Lender, the obligation of such Lender to make
Revolving Loans to the Borrower and to acquire participations in Swingline Loans
hereunder in an aggregate amount no greater than the amount set forth on Schedule I
hereto or, if such Lender has entered into any Assignment and Assumption, set forth for
such Lender in the Register maintained by the Administrative Agent pursuant to Section
8.07(c), in each such case as such amount may be from time to time increased pursuant to
Section 2.07 ot reduced pursuant to Section 2.08.
'oCommitment Fee Rote" means, at any time, the rate per annum set forth below
next to the Applicable Rating Level in effect at such time:
Applicable
Ratins Level
Commitment
tr'ee Rate
I 0.100%
2 0.12s%
J 0.t75%
4 0.22s%
5 0.27s%
A change in the Commitment Fee Rate resulting from a change in the Applicable Rating
Level shall become effective upon the date of public announcement of a change in the
Moody's Rating or the S&P Rating that results in a change in the Applicable Rating
Level.
"Commitment Percentage" means, as to any Lender as of any date of
determination, the percentage describing such Lender's pro rata share of the
Commitments set forth initially on Schedule I hereto or in the Register from time to time;
provided that in the case of Section 2.21 when a Defaulting Lender shall exist,
"Commitment Percentage" means the percentage of the total Commitments
(disregarding any Defaulting Lender's Commitment) represented by such Lender's
Commitment. If the Commitments have terminated or expired, the Commitment
Percentages shall be determined based upon the Commitments most recently in effect,
6
giving effect to any assignments and to any Lender's status as a Defaulting Lender at the
time of determination.
"Commilmenls" means the aggregate of each Lender's Commitment hereunder.
"Communicalions" has the meaning specified in Section 8.O2(dxii).
"Conlidential Information" means information that the Borrower furnishes to the
Administrative Agent, the Global Coordinator, the Joint Lead Arrangers or any Lender in
a writing designated as confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes available to the
Administrative Agent, the Global Coordinator, the Joint Lead Arrangers or such Lender
from a source other than the Borrower that has no obligation to maintain the
confidentiality of such information.
"Consolidated Assets" means, on any date of determination, the total of all assets
(including revaluations thereof as a result of commercial appraisals, price level
restatement or otherwise) appearing on the consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries most recently delivered to the Lenders pursuant to
Section 5.01(h) as of such date of determination.
"Consolidated Capilal" means the sum (without duplication) of (i) Consolidated
Debt of the Borrower (without giving effect to the proviso in the definition of
Consolidated Debt) and (ii) consolidated equity of all classes (whether common,
preferred, mandatorily convertible preferred or preference) of the Borrower.
"Consolidated Debt" of the Borrower means the total principal amount of all Debt
of the Borrower and its Consolidated Subsidiaries; providedthat Guaranties of Debt shall
not be included in such total principal amount.
"Consolidated SubsidiaFy" means, with respect to any Person at any time, any
Subsidiary or other Person the accounts of which would be consolidated with those of
such first Person in its consolidated financial statements in accordance with GAAP.
"Converf', "Conversion" and "Converted' each refers to a conversion of
Revolving Loans of one Type into Revolving Loans of the other Type, or the selection of
a new, or the renewal of the same, Interest Period for Eurodollar Rate Revolving Loans,
pursuant to Section 2.12 or 2.13.
"Credit Party" means the Administrative Agent, the Swingline Lender, any LC
Issuing Bank or any Lender.
"Custodian" means, for any series of Bonds, any Person acting as bailee and
agent for the Administrative Agent (on behalf of the applicable LC Issuing Bank and the
Lenders) under any Pledge Agreement relating to such Bonds.
"Debt" of any Person means, at any date, without duplication, (i) all indebtedness
of such Person for borrowed money, (ii) all obligations of such Person for the deferred
purchase price ofproperty or services (other than trade payables incurred in the ordinary
course of such Person's business), (iii) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (iv) all obligations of such Person as
lessee under leases that have been, in accordance with GAAP, recorded as capital leases,
(v) all obligations of such Person in respect of reimbursement agreements with respect to
acceptances, letters of credit (other than trade letters of credit) or similar extensions of
credit, and (vi) all Guaranties. Solely for the purpose of calculating compliance with the
covenant in Section 5.03, Debt shall not include Debt of the Borrower or its Consolidated
Subsidiaries arising from the qualification of an arrangement as a lease due to that
arrangement conveying the right to use or to control the use of property, plant or
equipment under the application of the Financial Accounting Standards Board's
Accounting Standards Codification Topic 840 - Leases paragraph 840-10-15-6, nor shall
Debt include Debt of any variable interest entity consolidated by PacifiCorp under the
requirements of Topic 810 - Consolidation.
"Debtor Relief Lows" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief laws of the United States or other applicable jurisdictions from
time to time in effect.
*Declining Lendef'has the meaning specified in Section 2.06(b).
"Default" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or both.
"Defoulting Lender" means, subject to Section 2.21(b), any Lender that (i) has
failed, within two Business Days after the date required to be funded or paid, to (A) fund
all or any portion of its Loans, (B) fund any portion of its participations in Letters of
Credit or Swingline Loans or (C) pay over to any Credit Party any other amount required
to be paid by it under this Agreement, unless, in the case of clause (A) above, such failure
is the result of such Lender's good faith determination that one or more conditions
precedent to funding (each of which conditions precedent, together with any applicable
default, shall be specifically identified in writing) has not been satisfied, as notified by
such Lender to the Administrative Agent and the Borrower in such writing, (ii) has
notified the Borrower or any Credit Party in writing that it does not intend to comply with
any of its funding obligations under this Agreement or has made a public statement to the
effect that it does not intend to comply with its funding obligations under this Agreement
(unless such writing or public statement relates to such Lender's obligation to fund a
Loan hereunder and such position is based on such Lender's good faith determination
that a condition precedent (which condition precedent, together with any applicable
default, shall be specifically identified in such writing or public statement) to funding a
Loan under this Agreement cannot be satisfied), (iii) has failed, within three Business
Days after written request by the Administrative Agent, the Swingline Lender, any LC
Issuing Bank or the Borrower, acting in good faith, to confirm in writing to such
requesting party that it will comply with its obligations to fund prospective Loans and
participations in then outstanding Letters of Credit and Swingline Loans under this
8
Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to
clause (iii) upon such requesting party's receipt of such written confirmation in form and
substance satisfactory to it and the Administrative Agent, or (iv) has become the subject
of a Bankruptcy Event. Any determination by the Administrative Agent that a Lender is
a Defaulting Lender under any one or more of clauses (i) through (iv) above shall be
conclusive and binding absent manifest error, and such Lender shall be deemed to be a
Defaulting Lender (subject to Section 2.21(b)) upon delivery of written notice of such
determination to the Borrower, each LC Issuing Bank, the Swingline Lender and each
Lender.
"Designated Lender" has the meaning specified in Section 2.07(a).
"Dollors" and the symbol "$" mean lawful currency of the United States of
America.
"Domestic Lending OfJice" means, with respect to any Lender, the office of such
Lender specified as its "Domestic Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Assumption pursuant to which it became a Lender, or
such other office of such Lender as such Lender may from time to time specifr in writing
to the Borrower and the Administrative Agent.
"Eligible Assignee" means any Person that meets the requirements to be an
assignee under Section 8.07(b)(iii), (v) and (vi) (subject to such consents, if any, as may
be required under Section 8.07(bxiii)).
"Environmental Action" means any action, suit, demand, demand letter, claim,
notice of non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the environment, including, without
limitation, (i) by any Governmental Authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (ii) by any Governmental Authorityor any third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute, law,
ordinance, rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or discharge of Hazardous
Materials.
"Environmcntal Permif' means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
9
"ERISA Affiliate" means, with respect to any Person, each trade or business
(whether or not incorporated) that is considered to be a single employer with such entity
within the meaning of Section 414(b), (c), (m) or (o) of the Internal Revenue Code.
"ERISA Event" means (i) any "reportable event," as defined in Section 4043 of
ERISA with respect to a Pension Plan (other than an event as to which the PBGC has
waived the requirement of Section a0a3@) of ERISA that it be notified of such event);
(ii) the failure to make a required contribution to any Pension Plan that would result in
the imposition of a lien or other encumbrance or the provision of security under Section
430 of the Internal Revenue Code or Section 303 or 4068 of ERISA, or there being or
arising any "unpaid minimum required contribution" or "accumulated funding
deficiency" (as defined or otherwise set forth in Section 4971 of the Internal Revenue
Code or Part 3 of Subtitle B of Title I of ERISA), whether or not waived, or the filing of
any request for or receipt of a minimum funding waiver under Section 412 of the Internal
Revenue Code with respect to any Pension Plan or Multiemployer Plan, or a
determination that any Pension Plan is, or is reasonably expected to be, in at-risk status
under Title IV of ERISA; (iii) the filing of a notice of intent to terminate any Pension
Plan, if such termination would require material additional contributions in order to be
considered a standard termination within the meaning of Section 4041(b) of ERISA, the
filing under Section 4041(c) of ERISA of a notice of intent to terminate any Pension
Plan, or the termination of any Pension Plan under Section a0al(c) of ERISA; (iv) the
institution of proceedings, or the occurrence of an event or condition that would
reasonably be expected to constitute grounds for the institution of proceedings by the
PBGC, under Section 4042 of ERISA, for the termination of, or the appointment of a
trustee to administer, any Pension Plan; (v) the complete or partial withdrawal of the
Borrower or any of its ERISA Affiliates from a Multiemployer Plan, the reorganization
or insolvency under Title IV of ERISA of any Multiemployer Plan, or the receipt by the
Borrower or any of its ERISA Affiliates of any notice that a Multiemployer Plan is in
endangered or critical status under Section 305 of ERISA; (vi) the failure by the
Borrower or any of its ERISA Affiliates to comply with ERISA or the related provisions
of the Internal Revenue Code with respect to any Pension Plan; (vii) the Borrower or any
of its ERISA Affiliates incurring any liability under Title IV of ERISA with respect to
any Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA); or (viii) the failure by the Borrower or any of its Subsidiaries to comply with
Applicable Law with respect to any Foreign Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Ofrice" means, with respect to any Lender, the office of
such Lender specified as its "Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Assumption pursuant to which it became a Lender (or, if
no such office is specified, its Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time speciff in writing to the Borrower and the
Administrative Agent.
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"Eurodollar Rate" means, for any Interest Period for each Eurodollar Rate
Revolving Loan comprising part of the same Borrowing, an interest rate per annum equal
to BBA LIBOR, as published on Bloomberg L.P.'s page BBAM (or another
commercially available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately I l:00 a.m. London time, two
Business Days prior to the commencement of such Interest Period, for dollar deposits (for
delivery on the first day of such Interest Period) 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 term'oEurodollar Rate" means an interest rate per annum equal to the rate of
interest per annum (rounded upwards, if necessary, to the next l/l00th of l%) at which
dollar deposits (for delivery on the first day of such Interest Period) of comparable
amount to such Eurodollar Rate Revolving Loan being made or Converted by JPMCB
and comparable maturity to such Interest Period are offered by the principal London
office of the Administrative Agent (or its principal London banking Affiliate) in
immediately available funds in the London interbank market at approximately I l:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period.
"Eurodollar Rate Revolving Loan" means a Revolving Loan that bears interest as
provided in Section 2.1 1(b).
"Eurodollar Rate Reserve Percentage" of any Lender for any Interest Period for
each Eurodollar Rate Revolving Loan means the reserve percentage applicable to such
Lender during such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such Interest Period
during which any such percentage shall be so applicable) under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) then applicable to such
Lender with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurodollar Rate Revolving Loans is determined)
having a terrn equal to such Interest Period.
"Evenls of Default" has the meaning specified in Section 6.01.
"Excluded Toxes" means any of the following Taxes imposed on or with respect
to a Recipient or required to be withheld or deducted from a payment to a Recipient, (i)
Taxes imposed on or measured by net income (however denominated), franchise Taxes,
and branch profits Taxes, in each case, (A) imposed as a result of such Recipient being
organized under the laws of, or having its principal office or, in the case of any Lender,
its Applicable Lending Office located in, the jurisdiction imposing such Tax (or any
political subdivision thereof) or (B) that are Other Connection Taxes, (ii) in the case of a
Lender, withholding Taxes imposed on amounts payable to or for the account of such
Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law
in effect on the date on which (A) such Lender acquires such interest in the Loan or
Commitment (other than pursuant to an assignment request by the Borrower under
Section 2.20(b)) or (B) such Lender changes its Applicable Lending Office, except in
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each case to the extent that, pursuant to Section 2.18, amounts with respect to such Taxes
were payable either to such Lender's assignor immediately before such Lender became a
party hereto or to such Lender immediately before it changed its Applicable Lending
Office, (iii) Taxes attributable to such Recipient's failure to comply with Section 2.18(g)
and (iv) any Taxes imposed under FATCA.
"Existing Credit Agreemenf' means the Credit Agreement, dated as of October
23,2007, as amended, among the Borrower, Union Bank, N.A., as administrative agent,
and certain other financial institutions named therein.
"Extension Effective Date" has the meaning specified in Section 2.06(c).
"Extension of Credif' means the making of a Borrowing, the issuance of a Letter
of Credit or the amendment of any Letter of Credit having the effect of extending the
stated termination date thereof or increasing the maximum amount available to be drawn
thereunder. For purposes of this Agreement, a Conversion shall not constitute an
Extension of Credit.
"FATCA" means Sections l47l through 1474 of the Internal Revenue Code, as of
the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with) and any current or future
regulation s or offi c ial interpretati ons thereof.
"Fee Letters" means (i) the letter agreement, dated as of June 1,2012, between
the Borrower and JPMCB, (ii) the letter agreement, dated as of June 1,2012, between the
Borrower and RBS Securities Inc., (iii) the letter agreement, dated as of June 1,2012,
among the Borrower, The Royal Bank of Scotland plc, RBS Securities Inc., JPMCB, J.P.
Morgan Securities LLC and Union Bank, N.A., (iv) the letter agreement, dated as of June
4, 2012, among the Borrower, Barclays Bank PLC, Wells Fargo Bank, National
Association and Wells Fargo Securities, LLC, (v) the letter agreement, dated as of June 4,
2012, between the Borrower and U.S. Bank National Association, and (iv) each LC
Issuing Bank Fee Letter, in each case, as amended, modified or supplemented from time
to time.
"Federal Funds Rale" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day, the average
of the quotations for such day on such transactions received by the Administrative Agent
from three Federal funds brokers ofrecognized standing selected by it.
"FERC'means the Federal Energy Regulatory Commission.
"Foreign Lendef'means a Lender that is not a U.S. Person.
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"Foreign Plan" means any pension, profit-sharing, deferred compensation, or
other employee benefit plan, program or arrangement (other than a Pension Plan or a
Multiemployer Plan) maintained by any Subsidiary of the Borrower that, under
applicable local foreign law, is required to be funded through a trust or other funding
vehicle.
"Fronting Commitmenf' means, with respect to any LC Issuing Bank, the
aggregate stated amount of all Letters of Credit that such LC Issuing Bank agrees to issue
(subject to the LC Commitment Amount), as modified from time to time pursuant to an
agreement signed by such LC Issuing Bank. With respect to each Lender that is an LC
Issuing Bank on the date hereof, such LC Issuing Bank's Fronting Commitment is listed
on Schedule II, and (ii) with respect to any Lender that becomes an LC Issuing Bank after
the date hereof such Lender's Fronting Commitment will be the amount agreed between
the Borrower and such Lender at the time that such Lender becomes an LC Issuing Bank,
in each case, as such Fronting Commitment may be modified in accordance with the
terms of this Agreement.
"Fronting Exposure" means, at any time there is a Defaulting Lender, (i) with
respect to any LC Issuing Bank, such Defaulting Lender's Commitment Percentage of the
LC Outstandings with respect to Letters of Credit issued by such LC Issuing Bank other
than LC Outstandings as to which such Defaulting Lender's participation obligation has
been reallocated to other Lenders or Cash Collateralized in accordance with the terms
hereof, and (ii) with respect to the Swingline Lender, such Defaulting Lender's
Commitment Percentage of Swingline Outstandings other than Swingline Loans as to
which such Defaulting Lender's participation obligation has been reallocated to other
Lenders.
"Funt' 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 activities.
"GAAP' has the meaning specified in Section 1.03.
" Global Coordinatoy'' means RBS Securities Inc.
"Governmental Approvaf' means any authorization, consent, approval, license or
exemption of registration or filing with, or report or notice to, any Governmental
Authority.
"Governmental Authority" means the government of the United States of
America or any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government (including any supra-national bodies
such as the European Union or the European Central Bank).
"Guoranty" of any Person means (i) any obligation, contingent or otherwise, of
such Person to pay any Debt of any other Person and (ii) all reasonably quantifiable
l3
obligations of such Person under indemnities or under support or capital contribution
agreements, and other reasonably quantifiable obligations (contingent or otherwise) to
purchase or otherwise to assure a creditor against loss in respect of, or to assure an
obligee against loss in respect of, any Debt of any other Person guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by
such Person through an agreement (A) to pay or purchase such Debt or to advance or
supply funds for the payment or purchase of such Debt, (B) to purchase, sell or lease (as
lessee or lessor) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Debt or to assure the holder of such Debt
against loss, (C) to supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of whether such property is
received or such services are rendered) or (D) otherwise to assure a creditor against loss;
provided that the term "Guaranty" shall not include endorsements for collection or
deposit in the ordinary course of business or the grant of a Lien in connection with
Project Finance Debt.
"Hazardous Moterials" means (i) petroleum and petroleum products, byproducts
or breakdown products, radioactive materials, asbestos-containing materials,
polychlorinated biphenyls and radon gas and (ii) any other chemicals, materials or
substances designated, classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
o'IndemniJied Party" has the meaning specified in Section 8.04(b).
"Indemnilied Toxes" means (i) Taxes, other than Excluded Taxes, imposed on or
with respect to any payment made by or on account of any obligation of the Borrower
under any Loan Document and (ii) to the extent not otherwise described in (i), Other
Taxes.
"Indenture" means, for any series of Bonds, the indenture pursuant to which such
Bonds are issued and any supplement thereto relating to such Bonds.
*Initial Lenders" has the meaning specifred in the first paragraph of this
Agreement.
"Interest Periot'means, for each Eurodollar Rate Revolving Loan comprising
part of the same Borrowing, the period commencing on the date of such Eurodollar Rate
Revolving Loan or the date of the Conversion of any Base Rate Revolving Loan into
such Eurodollar Rate Revolving Loan and ending on the last day of the period selected by
the Borrower pursuant to the provisions below and, thereafter, with respect to Eurodollar
Rate Revolving Loans, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the period selected
by the Borrower pursuant to the provisions below. The duration of each such Interest
Period shall be one, twoo three or six months or such other period acceptable to all the
Lenders, as the Borrower may, upon notice received by the Administrative Agent not
later than 12:00 noon on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that;
t4
(i) the Borrower may not select any Interest Period that ends after the latest
Termination Date in effect at such time;
(ii) Interest Periods commencing on the same date for Eurodollar Rate
Revolving Loans comprising part of the same Borrowing shall be of the
same duration;
(iii) whenever the last day of any Interest Period would otherwise occur on a
day other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day, provided,
however, that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a day of an initial
calendar month for which there is no numerically corresponding day in the
calendar month that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such succeeding
calendar month.
"fnfurnal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.
"fnvestmenf in any Person means (i) any direct or indirect loan, advance or other
extension of credit made to such Person (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business), (ii) any
capital contribution to such Person, (iii) any purchase of an ownership interest in such
Person, (iv) any purchase of all or substantially all of the assets of such Person or (v) any
purchase of assets constituting a business unit of such Person. For purposes of this
definition, the Dollar value of any Investment made by any Person shall be the amount of
capital invested by such Person in such Investment.
"IRS'means the United States Internal Revenue Service.
o'fssuef' means, for any series of Bonds, the issuer of such Bonds under the
applicable Indenture.
"fssuer Agreemenf' means, for any series of Bonds, the agreement between the
applicable Issuer and the Borrower pursuant to which (i) the proceeds of such Bonds are
loaned by such Issuer to the Borrower, together with any promissory note or other
instrument evidencing the Indebtedness of the Borrower under such agreement, or (ii) the
Borrower agrees to pay the purchase price of, or rent with respect to, the facilities
financed or refinanced with the proceeds of such Bonds.
*Joint Lead Aruangers" means RBS Securities Inc., J.P. Morgan Securities LLC,
Union Bank, N.A., Barclays Bank PLC, Wells Fargo Securities, LLC and U.S. Bank
National Association.
l5
"JPMCB" has the meaning specified in the recital of parties to this Agreement.
"LC Collateral Accounl" has the meaning specified in Section 6.02.
"LC Commitment Amount" means $600,000,000 as the same may be reduced
permanently from time to time pursuant to Section 2.08.
"LC Fee" has the meaning specified in Section 2.05(c).
"LC Issuing Bank" means each Lender identified as an "LC Issuing Bank" on
Schedule II and any other Lender or Affiliate of a Lender that shall agree to issue a Letter
of Credit pursuant to Section 2.04.
"LC Issuing Bank Fee Lettef' means (i) the letter agreement, dated as of June
15,2012, among the Borrower, The Royal Bank of Scotland plc, JPMCB, Union Bank,
N.A. and Barclays Bank PLC, and (ii) any other agreement between the Borrower and an
LC Issuing Bank, in form and substance satisfactory to such LC Issuing Bank,
conceming fees payable by the Borrower to such LC Issuing Bank for its own account.
*LC Outstandings" means, on any date of determination, the sum of (i) the
undrawn stated amounts of all Letters of Credit that are outstanding on such date plus (ii)
the aggregate principal amount of all unpaid reimbursement obligations of the Borrower
on such date with respect to payments made by any LC Issuing Bank under any Letter of
Credit (excluding reimbursement obligations that have been repaid with the proceeds of
any Borrowing). The LC Outstandings with respect to any Lender at any time shall be its
Commitment Percentage of the total LC Outstandings at such time.
"LC Payment Notice" has the meaning specified in Section 2.04(e).
"Lenders" means the Initial Lenders and each Person that shall become party
hereto pursuant to an Assignment and Assumption, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the
context otherwise requires, the term "Lenders" includes the Swingline Lender.
"Letler of Credit" means a standby letter of credit issued by an LC Issuing Bank
pursuant to Section 2.04 or a Bond Letter of Credit, in each case, as amended, modified
or extended in accordance with the terms of this Agreement.
"Lien" means any lien, security interest or other charge or encumbrance of any
kind, or any other type of preferential arrangement, including, without limitation, the lien
or retained security title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property.
"Loan Documents" means, collectively, (i) this Agreement, (ii) the Fee Letters
and (iii) any promissory note issued pursuant to Section 2.10(d).
"Loans" means the loans made by the Lenders to the Borrower pursuant this
Agreement.
16
*Margin Regulation$" means Regulations T, U and X of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
"Margin Stock" has the meaning specified in the Margin Regulations.
*Material Adverse Effecf'means a material adverse effect on (i) on the business,
operations, properties, financial condition, assets or liabilities (including, without
limitation, contingent liabilities) of the Borrower and its Subsidiaries, taken as a whole,
(ii) the ability of the Borrower to perform its obligations under the Loan Documents or
(iii) the ability of the Administrative Agent, the Swingline Lender, any LC Issuing Bank
or any Lender to enforce its rights under the Loan Documents.
*Moterial Subsidiaries" means any Subsidiary of the Borrower with respect to
which (x) the Borrower's percentage ownership interest in such Subsidiary multiplied by
(y) the book value of the Consolidated Assets of such Subsidiary represents at least 15%
of the Consolidated Assets of the Borrower as reflected in the latest financial statements
of the Borrower delivered pursuant to clause (i) or (ii) of Section 5.01(h).
"Minimum Collateral Amount" means, at any time, (i) with respect to Cash
Collateral consisting of cash or deposit account balances, an amount equal to 103 % of
the Fronting Exposure of all LC Issuing Banks with respect to Letters of Credit issued
and outstanding at such time and (ii) otherwise, an amount determined by the
Administrative Agent and the LC Issuing Banks in their sole discretion.
'oMoody's" means Moody's Investors Service, Inc.
"Moody's Rating!' means, on any date of determination, the rating most recently
announced by Moody's with respect to any senior unsecured, non-credit enhanced Debt
of the Borrower.
"Mulliemployer PlAn" means any "multiemployer plan" (as such term is defined
in Section a00l(a)(3) of ERISA), which is contributed to by (or to which there is or may
be an obligation to contribute of) the Borrower or any of its EzuSA Affiliates or with
respect to which the Borrower or any of its ERISA Affiliates has, or could reasonably be
expected to have, any liability.
"Non-Consenting Lender" means any Lender that does not approve any consent,
waiver or amendment that (i) requires the approval of all affected Lenders in accordance
with the terms of Section 8.01 and (ii) has been approved by the Required Lenders.
"Non-Defaulting Lender" means, at the time of determination, a Lender that is
not a Defaulting Lender.
"non-performing Lender" has the meaning specified in Section 2.04(f).
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
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"OfJiciol Slatement" means, for any series of Bonds, the official statement,
reoffering circular or similar disclosure document (however designated) relating to such
Bonds and the applicable LC Issuing Bank, as amended and supplemented from time to
time, and all documents incorporated therein (or in any such supplement or amendment)
by reference.
"Other Connection Toxes" means, with respect to any Recipient, Taxes imposed
as a result of a present or former connection between such Recipient and the jurisdiction
imposing such Tax (other than connections arising solely from such Recipient having
executed, delivered, become a party to, performed its obligations under, received
payments under, received or perfected a security interest under, engaged in any other
transaction pursuant to or enforced any Loan Document).
"Other Taxes" means all present or future stamp, court or documentary,
intangible, recording, filing or similar Taxes that arise from any payment made under,
from the execution, delivery, performance, enforcement or registration of, from the
receipt or perfection of a security interest under, or otherwise with respect to, any Loan
Document, except any such Taxes imposed with respect to an assignment (other than an
assignment made pursuant to Section 2.20).
"Outstanding Credits" means, on any date of determination, the sum of (i) the
aggregate principal amount of all Loans outstanding on such date plus (ii) the LC
Outstandings on such date. The Outstanding Credits with respect to any Lender at any
time shall be its Commitment Percentage of the total Outstanding Credits at such time.
"Participanl'has the meaning assigned to such term in Section 8.07(d).
"Participant Register" has the meaning specified in Section 8.07(d).
"Patriot Acf'has the meaning specified in Section 8.14.
*PBGC'means the Pension Benefit Guaranty Corporation (or any successor).
"Pension Plon" means any "employee pension benefit plan" (as defined in
Section 3(2) of ERISA) (other than a Multiemployer Plan), subject to the provisions of
Title IV of ERISA or Section 412 of the Internal Revenue Code or Section 302 of
ERISA, maintained or contributed to by the Borrower or any of its ERISA Affiliates or to
which the Borrower or any of its ERISA Affiliates has or may have an obligation to
contribute (or is deemed under Section 4069 of ERISA to have maintained or contributed
to or to have had an obligation to contribute to, or otherwise to have liability with respect
to) such plan.
"Permitted Liens" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced: (i)
Liens for taxes, assessments and governmental charges or levies to the extent not required
to be paid under Section 5.01(a) hereof; (ii) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens, and other
similar Liens arising in the ordinary course of business; (iii) Liens incurred or deposits
l8
made to secure obligations under workers' compensation laws or similar legislation or to
secure public or statutory obligations; (iv) easements, rights of way and other
encumbrances on title to real property that do not render title to the property encumbered
thereby unmarketable, including zoning and landmarking restrictions; (v) any judgment
Lien, unless an Event of Default under Section 6.01(e) shall have occurred and be
continuing with respect thereto; (vi) any Lien on any asset of any Person existing at the
time such Person is merged or consolidated with or into the Borrower or any Material
Subsidiary and not created in contemplation of such event; (vii) pledges and deposits
made in the ordinary course of business to secure the performance of bids, trade contracts
(other than for Debt), operating leases and surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of business; (viii)
Liens upon or in any real property or equipment acquired, constructed, improved or held
by the Borrower or any Subsidiary in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt incurred solely for the
purpose of financing the acquisition, construction or improvement of such property or
equipment, or Liens existing on such property or equipment at the time of its acquisition
(other than any such Liens created in contemplation of such acquisition that were not
incurred to finance the acquisition of such properg), (ix) Liens securing Project Finance
Debt, (x) any Lien on the Borrower's or any Material Subsidiary's interest in Bonds or
cash or cash equivalents securing (A) the obligation of the Borrower or any Material
Subsidiary to reimburse the issuer of a letter of credit supporting payments to be made in
respect of such Bonds (including any Bond Leffer of Credit) for a drawing on such letter
of credit for the purpose of purchasing Bonds or (B) the obligation of the Borrower or
any Material Subsidiary to reimburse or repay amounts advanced under any facility
entered into to provide liquidity or credit support for any issue of Bonds; and (xi)
extensions, renewals or replacements of any Lien described in clause (vi), (vii), (viii), (ix)
or (x) for the same or a lesser amount, provided, however, that no such Lien shall extend
to or cover any properties (other than after-acquired property already within the scope of
the relevant Lien grant) not theretofore subject to the Lien being extended, renewed or
replaced.
"PeFSon" means any natural Person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
"Platform" has the meaning specified in Section 8.02(d)(i).
*Pledge Agreement" means, for any series of Bonds, the pledge agreement or
custodian agreement (or similar agreement, however designated), among the
Administrative Agent, the Borrower and the applicable Custodian with respect to such
Bonds, setting forth certain terms relating to the pledge and/or ownership of any such
Bonds pending the remarketing thereof pursuant to the applicable Remarketing
Agreement.
"Project Finance Debf'means Debt of any Subsidiary of the Borrower (i) that is
(A) not recourse to the Borrower other than with respect to Liens granted by the
Borrower on direct or indirect equity interests in such Subsidiary to secure such Debt and
limited Guaranties of, or equity commitments with respect to, such Debt by the Borrower,
l9
which Liens, limited Guaranties and equity commitments are of a type consistent with
other limited recourse project financings, and other than customary contractual carve-outs
to the non-recourse nature of such Debt consistent with other limited recourse project
financings, and (B) incurred in connection with the acquisition, development,
construction or improvement of any project, single purpose or other fixed assets of such
Subsidiary, including Debt assumed in connection with the acquisition of such assets, or
(ii) that represents an extension, renewal, replacement or refinancing of the foregoing,
provided that, in the case of a replacement or refinancing, the principal amount of such
new Debt shall not exceed the principal amount of the Debt being replaced or refinanced
plus l0% of such principal amount.
"Rating Decline" means the occurrence of the following on, or within 90 days
after, the earlier of (i) the occurrence of a Change of Control and (ii) the earlier of (x) the
date of public notice of the occurrence of a Change of Control and (y) the date of the
public notice of the Borrower's (or its direct or indirect parent company's) intention to
effect a Change of Control, which 90-day period will be extended so long as the S&P
Rating or Moody's Rating is under publicly announced consideration for possible
downgrading by S&P or Moody's, as applicable: the S&P Rating is reduced below
BBB+ or the Moody's Rating is reduced below Baal.
"Recipienf'means (i) the Administrative Agent, (ii) any Lender and (iii) any LC
Issuing Bank, as applicable.
"Register" has the meaning specified in Section 8.07(c).
"Reimbursement Amount" hasthe meaning specified in Section 2.04(d).
"Related Documents" means, for any series of Bonds, such Bonds and the
Indenture, the lssuer Agreement, any Remarketing Agreement and any Pledge Agreement
relating to such Bonds.
*Related Parties" means, with respect to any Person, such Person's Affiliates and
the partners, directors, officers, employees, agents, trustees, administrators, managers,
advisors and representatives of such Person and of such Person's Affiliates.
"Remarketing Agent" means, for any series of Bonds, any Person acting in the
capacity of remarketing agent for such Bonds pursuant to a Remarketing Agreement
relating to such Bonds.
"Remarketing Agreemenf' means, for any series of Bonds, any agreement or
other arrangement pursuant to which the applicable Remarketing Agent has agreed to act
in such capacity with respect to such Bonds tendered for purchase pursuant to the
applicable Indenture.
o'Removal Effective Date" has the meaning specified in Section 7.05(b).
"Request for Issuance" means a request made pursuant to Section 2.04 in the
form of Exhibit B.
20
"Required Lenders" means at any time Lenders owed in excess of 50%o of the
then aggregate unpaid principal amount of the Revolving Loans and participation
obligations with respect to the LC Outstandings and Swingline Outstandings, or, if there
are no Outstanding Credits, Lenders having in excess of 50Yo in interest of the
Commitments (without giving effect to any termination in whole of the Commitments
pursuant to Section 6.01). The Commitments, outstanding Loans and participation
obligations with respect to the LC Outstandings and Swingline Outstandings for any
Defaulting Lender shall be disregarded in determining Required Lenders at any time.
*Resignation Effective Date" has the meaning specified in Section 7.05(a).
"Revolving Loan" means a Loan by a Lender to the Borrower pursuant to Section
2.02 as part of a Borrowing and refers to a Base Rate Revolving Loan or a Eurodollar
Rate Revolving Loan.
*SEC" means the United States Securities and Exchange Commission.
uS&P" means Standard & Poor's Ratings Group, a division of The McGraw-Hill
Companies,lnc.
*S&P Rating!' means, on any date of determination, the rating most recently
announced by S&P with respect to any senior unsecured, non-credit enhanced Debt of the
Borrower.
"Subsidiary" of any Person means any corporation, partnership, joint venture,
limited liability company, trust or estate of which (or in which) more than 50o/o of (i) the
issued and outstanding capital stock having ordinary voting power to elect a majority of
the board of directors of such corporation (irrespective of whether at the time capital
stock of any other class or classes of such corporation shall or might have voting power
upon the occurrence of any contingency), (ii) the interest in the capital or profits of such
limited liability company, partnership or joint venture or (iii) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or more of
such Person's other Subsidiaries.
"Swingline Lender" means JPMCB, in its capacity as lender of Swingline Loans
hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.03.
"Swingline Outstandings" means, at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Outstandings with respect
to any Lender at any time shall be its Commitment Percentage of the total Swingline
Outstandings at such time.
"Taxes" means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed
21
by any Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
o'Termination Date" means the earlier to occur of (i) June 28,2017, or such later
date that may be established for any Lender from time to time pursuant to Section 2.06
hereof, and (ii) the date of termination in whole of the Commitments available to the
Borrower pursuant to Section 2.08 or 6.01.
"Trustee" means, for any series of Bonds, the Person acting in the capacity of
trustee for the holders of such Bonds under the Indenture pursuant to which such Bonds
were issued.
"Type" refers to the distinction between Loans bearing interest at the Base Rate
and Loans bearing interest at the Eurodollar Rate.
"U.5. Person" means any Person that is a "United States Person" as defined in
Section 7701(a)(30) of the Intemal Revenue Code.
"U.5. Tax Compliance CertiJicate" has the meaning assigned to such term in
Section 2.18(gxiii).
"Withholding Agenf'means the Borrower and the Administrative Agent.
SECTION 1.02. Computation of Time Periods.
In this Agreement in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1,03. Accounting Terms.
All accounting terms not specifically defined herein shall be construed in accordance
with generally accepted accounting principles as in effect from time to time (*GAAP'). If any
"Accounting Change" (as defined below) shall occur and such change results in a change in the
calculation of financial covenants, standards or terms in this Agreement, and either the Borrower
or the Required Lenders (through the Administrative Agent) shall request the same to the other
parties hereto in writing, the Borrower and the Administrative Agent shall enter into negotiations
to amend the affected provisions of this Agreement with the desired result that the criteria for
evaluating the Borrower's consolidated financial condition and results of operations shall be
substantially the same after such Accounting Change as if such Accounting Change had not been
made. Once such request has been made, until such time as such an amendment shall have been
executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all
financial covenants, standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Change had not occurred. 'oAccounling Change" means a
change in accounting principles required by the promulgation of any final rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants or, if applicable, the SEC (or successors thereto or
agencies with similar functions).
SECTION 1.04. Classiftcation of Loans and Borrowings,
For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.9., a "Eurodollar Rate Loan") or by Class and Type (e.g., a
"Eurodollar Rate Revolving Loan"). Borrowings also may be classified and referred to by Class
(e.9., a "Revolving Borrowing") or by Type (e.g., a "Eurodollar Rate Borrowing") or by Class
and Type (e.9., a "Eurodollar Rate Revolving Borrowing").
SECTION 1.05. Other Interpretive Provisions.
As used herein, except as otherwise specified herein, (i) references to any Person include
its successors and assigns and, in the case of any Governmental Authority, any Person
succeeding to its functions and capacities; (ii) references to any Applicable Law include
amendments, supplements and successors thereto; (iii) references to specific sections, articles,
annexes, schedules and exhibits are to this Agreement; (iv) words importing any gender include
the other gender; (v) the singular includes the plural and the plural includes the singular; (vi) the
words "including", "include" and "includes" shall be deemed to be followed by the words
"without limitation"; (vii) captions and headings are for ease of reference only and shall not
affect the construction hereof; and (viii) references to any time of day shall be to New York City
time unless otherwise specified.
ARTICLE II
AMOUNTS AND TERMS OF THE EXTENSIONS OF CREDIT
SECTION 2.01. The Revolving Loan*
(a) Each Lender severally agrees, on the terms and conditions hereinafter set forth, to
make Revolving Loans to the Borrower from time to time on any Business Day during the period
from the date hereof until the Termination Date applicable to such Lender in an aggregate
outstanding amount not to exceed at any time such Lender's Available Commitment at such
time. Within the limits of each Lender's Commitment and as hereinabove and hereinafter
provided, including without limitation Section 2.01(b), the Borrower may request Revolving
Borrowings hereunder, and repay or prepay Revolving Loans pursuant to Section 2.14 and utilize
the resulting increase in the Available Commitments for further Extensions of Credit in
accordance with the terms hereof.
(b) In no event shall the Borrower be entitled to request or receive any Revolving
Borrowing that (i) would exceed the Available Commitments or (ii) would cause the Outstanding
Credits to exceed the Commitments.
SECTION 2.02. Making the Revolving Loans.
(a) Each Revolving Borrowing shall be in an amount not less than $1,000,000 (or, if
less, the Available Commitments at such time) or an integral multiple of $100,000 in excess
thereof and shall consist of Revolving Loans of the same Type made on the same day by the
Lenders ratably according to their respective Commitment Percentages. Each Revolving
Borrowing shall be made on notice, given not later than 12:00 noon on the third Business Day
23
prior to the date of the proposed Revolving Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Revolving Loans, or not later than 12:00 noon on the date of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Revolving Loans, by the Borrower
to the Administrative Agent, which shall give to each Lender prompt written notice thereof.
Each such notice of a Revolving Borrowing (a *Notice of Boruowing!') shall be by telephone,
confirmed immediately in writing or facsimile in substantially the form of Exhibit A hereto,
speciffing therein the requested (i) Borrowing Date for such Borrowing, (ii) Type of Revolving
Loans comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the
case of a Borrowing consisting of Eurodollar Rate Revolving Loans, the initial Interest Period
for each such Revolving Loan. Each Lender shall, before 2:00 P.M. on the applicable Borrowing
Date, make available for the account of its Applicable Lending Office to the Administrative
Agent at the Agent's Account, in same day funds, such Lender's ratable portion of the
Borrowing to be made on such Borrowing Date; provided, however, that Swingline Loans shall
be made as provided in Section 2.03. After the Administrative Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent
will promptly make such funds available to the Borrower in such manner as the Borrower shall
have specified in the applicable Notice of Borrowing.
(b) Anything in subsection (a) above to the contrary notwithstanding, (i) the
Borrower may not select Eurodollar Rate Revolving Loans for any Borrowing if the aggregate
amount of such Borrowing is less than $1,000,000 or if the obligation of the Lenders to make
Eurodollar Rate Revolving Loans shall then be suspended pursuant to Section 2.12(b),2.13 or
2.16, and (ii) Borrowings of more than one Type and Class may be outstanding at the same time;
provided, however, there shall be not more than l0 Borrowings at any one time outstanding.
(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In
the case of any Borrowing that the related Notice of Borrowing specifies is to comprise
Eurodollar Rate Revolving Loans, the Borrower shall indemnify each Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Revolving Loan to be made by such Lender as part of such
Borrowing when such Revolving Loan, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received written notice from a Lender
prior to any Borrowing Date or, in the case of a Base Rate Loan, prior to the time of Borrowing,
that such Lender will not make available to the Administrative Agent such Lender's Loan as part
of the Borrowing to be made on such Borrowing Date, the Administrative Agent may, but shall
not be required to, assume that such Lender has made such portion available to the
Administrative Agent on such Borrowing Date in accordance with subsection (a) of this Section
2.02, and the Administrative Agent may (but it shall not be required to), in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such Loan available to the Administrative Agent,
such Lender 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
24
Administrative Agent, at (i) in the case of the Borrower, the interest rate applicable at the time to
Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay to the Administrative Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Loan to be made by it as part of any
Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan
on the date of such Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Swingline Loans.
(a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees
to make Swingline Loans to the Borrower from time to time on any Business Day during the
period from the date hereof until the Termination Date applicable to the Lender that is the
Swingline Lender, in an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding $50,000,000, or (ii)
the Outstanding Credits exceeding the Commitments; provided that the Swingline Lender shall
not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within
the limits as hereinabove and hereinafter provided, the Borrower may request Swingline
Borrowings hereunder, and repay or prepay Swingline Loans pursuant to Section 2.14 and utilize
the resulting increase in the Available Commitments for further Extensions of Credit in
accordance with the terms hereof. Each Swingline Loan shall be a Base Rate Loan and shall be
in an amount that is an integral multiple of $500,000 and not less than $1,000,000.
(b) To request a Swingline Loan, the Borrower shall notiff the Administrative Agent
of such request by telephone (confirmed by telecopy), not later than 2:00 P.M. on the day of a
proposed Swingline Loan. Each such notice shall be irrevocable and shall speciff the requested
date (which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received
from the Borrower. The Swingline Lender shall make each Swingline Loan available to the
Borrower by means of a credit to the general deposit account of the Borrower with the Swingline
Lender by 4:00 P.M. on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent
not later than l:00 P.M. on any Business Day require the Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall
speciff the aggregate amount of Swingline Loans in which the Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lender's Commitment Percentage of such Swingline
Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account of the Swingline
Lender, such Lender's Commitment Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this subsection is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default or reduction or
25
termination of the Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Swingline Loan shall utilize the
Commitment of each Lender by an amount equal to the amount of such participation. Each
Lender shall comply with its obligation under this subsection by wire transfer of immediately
available funds, in the same manner as provided in Section 2.02(a) with respect to Loans made
by such Lender (and Section 2.02 shall apply, mutatis mutandis, to the payment obligations of
the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall notiff the Borrower
of any participations in any Swingline Loan acquired pursuant to this subsection, and thereafter
payments in respect of such Swingline Loan shall be made to the Administrative Agent and not
to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or
other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to
the Administrative Agent; any such amounts received by the Administrative Agent shall be
promptly remitted by the Administrative Agent to the Lenders that shall have made their
payments pursuant to this subsection (to the extent of each applicable Lender's participation) and
to the Swingline Lender to the extent of its retained interest; provided that any such payment so
remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if
and to the extent such payment is required to be refunded to the Borrower for any reason. The
purchase of participations in a Swingline Loan pursuant to this subsection shall not relieve the
Borrower of any default in the payment thereof.
SECTION 2.04. Letters of Credit.
(a) Subject to the terms and conditions hereof, each LC Issuing Bank agrees to issue
Letters of Credit from time to time for the account of the Borrower (or to extend the stated
maturity thereof or to amend or modify the terms thereof), in an aggregate stated amount not
exceeding such LC Issuing Bank's Fronting Commitment, up to a maximum aggregate stated
amount for all Letters of Credit at any one time outstanding equal to the LC Commitment
Amount, on not less than two Business Days' prior notice thereof by delivery of (x) a Request
for Issuance to the Administrative Agent and (y) such LC Issuing Bank's standard form of Letter
of Credit application for the requested Letter of Credit (including, for direct pay Letters of
Credit, any reimbursement agreement or other standard form required by such LC Issuing Bank)
to the letter of credit department of such LC Issuing Bank for the account of the Borrower. Each
Letter of Credit shall be issued in a form acceptable to the applicable LC Issuing Bank. Each
Request for Issuance shall speciff (i) the identity of the applicable LC Issuing Bank, (ii) the date
(which shall be a Business Day) of issuance of such Letter of Credit (or the date of effectiveness
of such extension, modification or amendment) and the stated expiry date thereof (which shall be
no later than the earlier of (x) the date occurring one year after the date of issuance of such Letter
of Credit and (y) the fifth Business Day preceding the Termination Date applicable to the Lender
that is the LC Issuing Bank issuing such Letter of Credit), (iii) the proposed stated amount of
such Letter of Credit (which amount (A) shall not be less than $100,000 and (B) may be subject
to any automatic increase and reinstatement provisions), (iv) the name and address of the
beneficiary of such Letter of Credit and (v) a statement of drawing conditions applicable to such
Letter of Credit, and if such Request for Issuance relates to an amendment or modification of a
Letter of Credit, it shall be accompanied by the consent of the beneficiary of the Letter of Credit
thereto. If so requested by the Borrower, a Letter of Credit may provide that it is automatically
renewable for additional one-year periods if subject to an ability of the applicable LC Issuing
Bank to not renew by giving notice of the same to the beneficiary of such Letter of Credit. Each
Request for Issuance shall be irrevocable unless modified or rescinded by the Borrower prior to
the issuance by the applicable LC Issuing Bank of the requested Letter of Credit or prior to the
effectiveness of the requested extension, modification or amendment to a Letter of Credit, as
applicable. Upon fulfillment of the applicable conditions precedent and the other requirements
set forth herein, the relevant LC Issuing Bank shall issue (or extend, amend or modify) such
Letter of Credit and provide notice and a copy thereof to the Administrative Agent, which shall
promptly furnish copies thereof to the Lenders that shall so request; providedthat the LC Issuing
Bank shall not issue or amend any Letter of Credit if such LC Issuing Bank has received notice
from the Administrative Agent that the applicable conditions precedent have not been satisfied.
Upon each issuance of a Letter of Credit by any LC Issuing Bank, each Lender shall be deemed,
without further action by any party hereto, to have irrevocably and unconditionally purchased
from such LC Issuing Bank without recourse a participation in such Letter of Credit equal to
such Lender's Commitment Percentage of the aggregate amount available to be drawn under
such Letter of Credit. Upon each modification of a Letter of Credit by any LC Issuing Bank
which modifies the aggregate amount available to be drawn under such Letter of Credit, such LC
Issuing Bank and the Lenders shall be deemed, without further action by any party hereto, to
have purchased or sold, as appropriate, participations in such Letter of Credit such that each
Lender's participation in such Letter of Credit shall equal such Lender's Commitment
Percentage of such modified aggregate amount available to be drawn under such Letter of Credit.
Each Letter of Credit shall utilize the Commitment of each Lender by an amount equal to the
amount of such participation. Without limiting the foregoing, any LC Issuing Bank that issues a
Bond Letter of Credit agrees that (i) all Bonds pledged to such LC Issuing Bank pursuant to any
applicable Pledge Agreement or otherwise registered in the name of such LC Issuing Bank
pursuant to the other Related Document will be held for the benefit of such LC Issuing Bank and
the Lenders and (ii) to apply and/or remit all proceeds from the sale or remarketing of such
Bonds in accordance with Section 2.17(t).
(b) The Borrower may from time to time appoint one or more additional Lenders
(with the consent of any such Lender, which consent may be withheld in the sole discretion of
each Lender) to act, either directly or through an Affiliate of such Lender, as an LC Issuing Bank
hereunder. Any such appointment and the terms thereof shall be evidenced in a separate written
agreement executed by the Borrower and the relevant LC Issuing Bank, a copy of which
agreement shall be delivered by the Borower to the Administrative Agent. The Administrative
Agent shall give prompt notice of any such appointment to the other Lenders. Upon such
appointment, if and for so long as such Lender shall have any obligation to issue any Letter of
Credit hereunder or any Letter of Credit issued by such Lender shall remain outstanding, such
Lender shall be deemed to be, and shall have all the rights and obligations of, an "LC Issuing
Bank" under this Agreement.
(c) No Letter of Credit shall be requested, issued or modified hereunder if, after the
issuance or modification thereof, (i) the Outstanding Credits would exceed the Commitments
then scheduled to be in effect until the latest Termination Date, (ii) that portion of the LC
Outstandings arising from Letters of Credit issued by an LC Issuing Bank would exceed the
amount of such LC Issuing Bank's Fronting Commitment or (iii) the LC Outstandings would
exceed the LC Commitment Amount. No LC Issuing Bank shall be under any obligation to issue
27
any Letter of Credit if any order, judgment or decree of any Governmental Authority shall by its
terms purport to enjoin or restrain such LC Issuing Bank from issuing such Letter of Credit, or
any law applicable to such LC Issuing Bank or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over such LC Issuing Bank
shall prohibit, or request that the LC Issuing Bank refrain from, the issuance of leffers of credit
generally or such Letter of Credit in particular or shall impose upon the LC Issuing Bank with
respect to such Letter of Credit any restriction, reserve or capital requirement (for which the LC
Issuing Bank is not otherwise compensated or required to be compensated hereunder), which
restriction, reserve or capital requirement was not in effect on the date hereof, or shall impose
upon the LC Issuing Bank any loss, cost or expense (not reimbursed or required to be
reimbursed) that was not applicable on the date hereof and that the LC Issuing Bank in good
faith deems materialto it. RBS shall not be obligated to issue any direct pay Letters of Credit.
(d) The Borrower hereby agrees to pay to the Administrative Agent for the account of
each LC Issuing Bank and each Lender that has funded its participation in the reimbursement
obligations of the Borrower pursuant to subsection (e) below, on demand made by such LC
Issuing Bank to the Borrower, on and after each date on which such LC Issuing Bank shall pay
any amount under any Letter of Credit issued by such LC Issuing Bank, a sum equal to the
amount so paid (the "Reimbursement Amount"). Any Reimbursement Amount shall bear
interest, payable on demand, from the date so paid by such LC Issuing Bank until repayment to
such LC Issuing Bank in full at a fluctuating interest rate per annum equal to the interest rate
applicable to Base Rate Loans plus, if any amount paid by such LC Issuing Bank under a Letter
of Credit is not reimbursed by the Borrower within three Business Days, 2Yo. The Borrower may
satisff its obligation hereunder to repay the Reimbursement Amount by requesting a Borrowing
under Section 2.02 (and which Borrowing shall be subject to the conditions in Section 2.02) in
the amount of such Reimbursement Amount, and the proceeds of such Borrowing may be
applied to satisfr the Borrower's obligations to such LC Issuing Bank or the Lenders, as the case
may be.
(e) If any LC Issuing Bank shall not have been reimbursed in full for any
Reimbursement Amount in respect of a Letter of Credit issued by such LC Issuing Bank on the
date of such payment, such LC Issuing Bank shall give the Administrative Agent and each
Lender prompt notice thereof (an "LC Poyment Notice") no later than 12:00 noon on the
Business Day immediately succeeding the date of such payment by such LC Issuing Bank. Each
Lender shall fund the participation that such Lender purchased pursuant to Section 2.0a@) by
paying to the Administrative Agent for the account of such LC Issuing Bank an amount equal to
such Lender's Commitment Percentage of such Reimbursement Amount paid by such LC
Issuing Bank, plus interest on such amount at a rate per annum equal to the Federal Funds Rate,
for the first three days from the date of the payment by such LC Issuing Bank, and, thereafter,
until the date of payment to such LC Issuing Bank by such Lender, at a rate of interest equal to
the rate applicable to Base Rate Loans. Each such payment by a Lender shall be made not later
than 3:00 P.M. on the later to occur of (i) the Business Day immediately following the date of
such payment by such LC Issuing Bank and (ii) the Business Day on which such Lender shall
have received an LC Payment Notice from such LC Issuing Bank. Each Lender's obligation to
make each such payment to the Administrative Agent for the account of such LC Issuing Bank
shall be several and shall not be affected by the occurrence or continuance of a Default or the
failure of any other Lender to make any payment under this Section 2.04(e). Each Lender further
28
agrees that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(0 The failure of any Lender to make any payment to the Administrative Agent for
the account of any LC Issuing Bank in accordance with subsection (e) above shall not relieve any
other Lender of its obligation to make payment, but no Lender shall be responsible for the failure
of any other Lender. If any Lender (a"non-performing Lender") shall fail to make any payment
to the Administrative Agent for the account of any LC Issuing Bank in accordance with
subsection (e) above, then for so long as such failure shall continue, such LC Issuing Bank shall
be deemed, for purposes of Sections 6.01 and 8.01 hereof, to be a Lender owed a Borrowing in
an amount equal to the outstanding principal amount due and payable by such non-performing
Lender to the Administrative Agent for the account of such LC Issuing Bank pursuant to
subsection (e) above. Any non-performing Lender and the Borrower (without waiving any claim
against such non-performing Lender for such non-performing Lender's failure to fund its
participation in the reimbursement obligations of the Borrower under subsection (e) above)
severally agree to pay to the Administrative Agent for the account of such LC Issuing Bank
forthwith on demand such amount, together with interest thereon for each day from the date such
non-performing Lender would have funded its participation had it complied with the
requirements of subsection (e) above until the date such amount is paid to the Administrative
Agent at (i) in the case of the Borrower, the interest rate applicable at the time to Base Rate
Loans plus, if any amount paid by such LC Issuing Bank under a Letter of Credit is not
reimbursed by the Borrower within three Business Days, 2o/o, in accordance with Section
2.04(d), and (ii) in the case of such non-performing Lender, the Federal Funds Rate, for the first
three days and, thereafter, at a rate of interest equal to the rate applicable to Base Rate Loans.
(g) The payment obligations of each Lender under Section 2.0a@) and of the
Borrower under this Agreement in respect of any payment under any Letter of Credit shall be
absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any other
agreement or instrument relating thereto or to such Letter of Credit;
(ii) any amendment or waiver of, or any consent to departure from, the terms
of this Agreement or such Letter of Credit;
(iii) the existence of any claim, set-off, defense or other right that the Borrower
may have at any time against any beneficiary, or any transferee, of such Letter of Credit
(or any Persons for whom any such beneficiary or any such transferee may be acting),
any LC Issuing Bank, or any other Person, whether in connection with this Agreement,
the transactions contemplated hereby, thereby or by such Letter of Credit, or any
unrelated transaction;
(iv) any statement or any other document presented under such Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
29
(v) payment in good faith by any LC Issuing Bank under the Letter of Credit
issued by such LC Issuing Bank against presentation of a draft or certificate that does not
comply with the terms of such Letter of Credit;
(vi) the use that may be made of any Letter of Credit by, or any act or
omission of, the beneficiary of any Letter of Credit (or any Person for which the
beneficiary may be acting); or
(vii) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing.
(h) Without limiting any other provision of this Section 2.04, for purposes of this
Section 2.04 any LC Issuing Bank may rely upon any oral, telephonic, telegraphic, facsimile,
electronic, written or other communication believed in good faith to have been authorized by the
Borrower, whether or not given or signed by an authorized Person of the Borrower.
(i) The Borrower assumes all risks of the acts and omissions of any beneficiary or
transferee of any Letter of Credit. Neither any LC Issuing Bank, the Lenders nor any of their
respective officers, directors, employees, agents or Affiliates shall be liable or responsible for,
and the Borrower's reimbursement obligation in respect of any Letter of Credit shall not be
affected by, (i) the use that may be made of such Letter of Credit or any acts or omissions of any
beneficiary or transferee thereof in connection therewith; (ii) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents should prove
to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by any LC
Issuing Bank against presentation of documents that do not comply with the terms of such Letter
of Credit, including failure of any documents to bear any reference or adequate reference to such
Letter of Credit; (iv) any dispute between or among the Borrower, any of its Affiliates, the
beneficiary of any Letter of Credit or any financing institution or other party to whom any Letter
of Credit may be transferred or any claims or defenses whatsoever of the Borrower or of its
Affiliates against the beneficiary of any Letter of Credit or any such transferee; (v) any elror,
omission, interruption or delay in transmission, dispatch or delivery of any message or advice,
however transmitted, in connection with any Letter of Credit; or (vi) any other circumstances
whatsoever in making or failing to make payment under such Letter of Credit, except that the
Borrower and each Lender shall have the right to bring suit against each LC Issuing Bank, and
each LC [ssuing Bank shall be liable to the Borrower and any Lender, to the extent of any direct,
as opposed to consequential, damages suffered by the Borrower or such Lender that the
Borrower or such Lender proves, in a court of competent jurisdiction by final and nonappealable
judgment, were caused by such LC Issuing Bank's willful misconduct or gross negligence. In
furtherance and not in limitation of the foregoing, each LC Issuing Bank may accept sight drafts
and accompanying certificates presented under the Letter of Credit issued by such LC Issuing
Bank that appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and payment against such documents
shall not constitute willful misconduct or gross negligence by such LC Issuing Bank.
Notwithstanding the foregoing, no Lender shall be obligated to indemnify the Borrower for
damages caused by any LC Issuing Bank's willful misconduct or gross negligence.
30
0) In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, an LC Issuing Bank relating to any Letter of
Credit issued by such LC Issuing Bank, the terms and conditions of this Agreement shall control.
(k) Any LC Issuing Bank may resign at any time by giving written notice thereof to
the Administrative Agent, Lenders, the other LC Issuing Banks (if any) and the Borrower,
provided that (i) there is no LC Outstandings with respect to such LC Issuing Bank at such time
and (ii) unless the Borrower shall have agreed otherwise, another Lender or Affiliate thereof
reasonably acceptable to the Borrower has agreed to serve as an LC Issuing Bank and commits in
writing to issue a Letter of Credit in an amount at least equal to that of the resigning LC Issuing
Bank. Upon any such resignation, the resigning LC Issuing Bank shall be discharged from its
duties and obligations as anLC Issuing Bank under this Agreement.
SECTION 2.05. Fees.
(a) The Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee on the aggregate unused amount of such Lender's Commitment from
the date hereof in the case of each Initial Lender and from the effective date specified in the
Assignment and Assumption pursuant to which it became a Lender in the case of each other
Lender until the latest Termination Date applicable to such Lender, payable quarterly in arrears
on the last day of each March, June, September and December, commencing June 30,2012, and
ending on such Termination Date. The commitment fee for any period will be equal to the
Commitment Fee Rate in effect from time to time during such period, times an amount equal to
the Commitments minus the aggregate principal amount of Loans outstanding during such
period; provided, that for purposes of calculating the commitment fee, Swingline Loans shall not
be considered outstanding Loans.
(b) The Borrower agrees to pay the fees payable by the Borrower in such amounts
and on such terms as set forth in the Fee Letters.
(c) The Borrower agrees to pay to the Administrative Agent for the account of each
Lender a fee (the "LC Fee") on the average daily aggregate principal amount of each such
Lender's Commitment Percentage of the LC Outstandings from the date hereof until the later to
occur of the Termination Date applicable to such Lender and the date on which no Letters of
Credit are outstanding, payable on the last day of each March, June, September and December
(commencing on June 30, 2012), and on such later date, at a rate equal at all times to the
Applicable Margin in effect from time to time for Eurodollar Rate Revolving Loans.
SECTION 2.06. Extension of the Terminotion Date
(a) Not earlier than 60 days prior to, nor later than 30 days prior to each anniversary
of the date hereof, the Borrower may request by written notice made to the Administrative Agent
(which shall promptly notiff the Lenders thereofl a one-year extension of the Termination Date
applicable to each Lender. Each Lender shall notifu the Administrative Agent by the date
specified by the Administrative Agent (which date shall be a Business Day and shall not be less
than 15 days prior to, nor more than 30 days prior to, the Extension Effective Date) that either
3l
(A) such Lender declines to consent to extending the Termination Date or (B) such Lender
consents to extending the Termination Date. Any Lender not responding within the above time
period shall be deemed to have declined to extend the Termination Date. The consent of a
Lender to any such extension shall be in the sole discretion of such Lender. The Administrative
Agent shall, after receiving the notifications from all of the Lenders or the expiration of such
period, whichever is earlier, notiff the Borrower and the Lenders of the results thereof. The
Borrower may request no more than two extensions pursuant to this Section.
(b) If any Lender declines, or is deemed to have declined, to consent to such request
for extension (each a "Declining Lendet''), the Borrower shall have the right to replace such
Declining Lender in accordance with Section 2.20(b). Any Lender replacing a Declining Lender
shall be deemed to have consented to such request for extension (regardless of when such
replacement is effective) and shall not be deemed to be a Declining Lender.
(c) If the Required Lenders have consented to the extension of the Termination Date,
the Termination Date of each Lender that consented to the extension shall be extended to the date
that is one year after such Lender's then-effective Termination Date, effective as of the date to be
determined by the Administrative Agent and the Borrower (the "Extension Effective Date"). On
or prior to the Extension Effective Date, the Borrower shall deliver to the Administrative Agent,
in form and substance reasonably satisfactory to the Administrative Agent (i) the resolutions of
the Borrower authorizing such extension and all Governmental Approvals (if any) required in
connection with such extension, certified as being in effect as of the Extension Effective Date
and the related incumbency certificate of the Borrower, (ii) a favorable opinion of counsel for the
Borrower as to such matters as any Lender through the Administrative Agent may reasonably
request and (iii) a certificate of the Borrower stating that on and as of such Extension Effective
Date, and after giving effect to the extension to be effective on such date, all conditions
precedent to an Extension of Credit under Section 3.02 are satisfied. On each Extension
Effective Date, the Borrower shall pay to the Administrative Agent, for the account of each
applicable Declining Lender, the principal amount of all Loans outstanding owing to such
Declining Lender and all interest thereon and all fees and other amounts (including, without
limitation, any amounts payable pursuant to Section 8.04(c)) payable to such Declining Lender
accrued through such Extension Effective Date. Promptly following such Extension Effective
Date, the Administrative Agent shall distribute an amended Schedule I to this Agreement (which
shall thereafter be incorporated into this Agreement) to reflect any changes in the Lenders, the
Commitments and each Lender's Commitment Percentage as of such Extension Effective Date.
(d) The Swingline Lender and each LC Issuing Bank may, in its sole discretion, elect
notto serve in such capacity following any extension of the Termination Date; provided that (i)
the Borrower and the Administrative Agent may appoint a replacement for any such resigning
Swingline Lender and LC Issuing Bank, and (ii) the extension of the Termination Date may
become effective without regard to whether such replacement is found.
SECTION 2.07. Increase of the Commitments.
(a) The Borrower may, from time to time, request by written notice to the
Administrative Agent to increase the Commitments by a maximum aggregate amount for all
such increases of up to $200,000,000, by designating one or more Lenders or other financial
32
institutions (that will become Lenders), in each case, reasonably acceptable to the Administrative
Agent and acceptable to the Swingline Lender and each LC Issuing Bank, in their respective sole
discretion, that agree to accept all or a portion of such additional Commitments (each a
"Designated Lendef').
(b) The $dministrative Agent shall promptly notiff the Designated Lenders of the
Borrower's request pursuant to subsection (a) above. Each Designated Lender shall noti$ the
Administrative Agent by the date specified by the Administrative Agent (which date shall be a
Business Day) that either (A) such Designated Lender declines to accept its additional
Commitments or (B) such Designated Lender consents to accept the offered Commitments. Any
Designated Lender not responding on or prior to the date specified by the Administrative Agent
shall be deemed to have declined to accept the offered Commitments. The Administrative Agent
shall, after receiving the notifications from all of the Designated Lenders or following the date
specified in the notice to such Designated Lenders, whichever is earlier, notiff the Borrower and
the Lenders of the results thereof and the effective date of any additional Commitments. The
effectiveness of such additional Commitments shall be subject to the condition precedent that the
Borrower shall have delivered to the Administrative Agent (i) the resolutions of the Borrower
authorizing such additional Commitments and all Governmental Approvals (if any) required in
connection with such additional Commitments, certified as being in effect as of the effective date
of such additional Commitments, (ii) a favorable opinion of counsel for the Borrower as to such
maffers as any Lender through the Administrative Agent may reasonably request and (iii) a
certificate signed by a duly authorized officer of the Borrower, dated as of the effective date of
such additional Commitments, stating that all conditions precedent to an Extension of Credit
have been satisfied on and as ofsuch effective date.
(c) Promptly following the effective date of any Commitment increase pursuant to
this Section 2.07, (i) the Administrative Agent shall distribute an amended Schedule I to this
Agreement (which shall thereafter be incorporated into this Agreement) to reflect any changes in
Lenders, the Commitments and each Lender's Commitment Percentage as of such effective date
and (ii) the Borrower shall prepay the outstanding Revolving Borrowings (if any) in full, and
shall simultaneously make new Revolving Borrowings hereunder in an amount equal to such
prepayment, so that, after giving effect thereto, the Revolving Borrowings are held ratably by the
Lenders in accordance with their respective Commitments (after giving effect to such
Commitment increase). Prepayments made under this clause (c) shall not be subject to the notice
requirements of Section 2.14.
(d) Notwithstanding any provision contained herein to the contrary, from and after
the date of any Commitment increase and the making of any Loans on such date pursuant to
clause (cXii) above, all calculations and payments of fees and of interest on the Loans shall take
into account the actual Commitment of each Lender and the principal amount outstanding of
each Loan made by such Lender during the relevant period of time.
SECTION 2.08. Termination or Reduction of the Commitments.
(a) The Borrower shall have the right, upon at least three Business Days' notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the Available
Commitments, provided that (i) each partial reduction shall be in the aggregate amount of
33
$10,000,000 or an integral multiple of $5,000,000 in excess thereof and (ii) no such termination
or reduction shall be made that would reduce the aggregate Commitments to an amount less than
the Outstanding Credits on the date of such termination or reduction. Subject to the foregoing,
any reduction of the Commitments to an amount below $600,000,000 shall also result in a
reduction of the LC Commitment Amount to the extent of such deficit (and if such reduction
would cause the LC Commitment Amount to be less than the aggregate Fronting Commitments,
with automatic reductions in the amount of each Fronting Commitment ratably in proportion to
the amount of such reduction of the LC Commitment Amount unless, in the case of any LC
Issuing Bank, such LC Issuing Bank consents otherwise). Each such notice of termination or
reduction shall be irrevocable; provided, however, that a notice of termination delivered pursuant
to this Section 2.08 may state that such notice is conditioned upon the effectiveness of other
credit facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the effective date specified in the notice of termination) if
such condition is not satisfied.
(b) The Borrower may terminate the unused amount of the Commitment of any
Lender that is a Defaulting Lender upon not less than three Business Days' prior notice to the
Administrative Agent (which shall promptly notit, the Lenders thereof), and in such event the
provisions of Section 2.21(a)(ii) will apply to all amounts thereafter paid by the Borrower for the
account of such Defaulting Lender under this Agreement (whether on account of principal,
interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have
occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or
release of any claim the Borrower, the Administrative Agent, any LC Issuing Bank, the
Swingline Lender or any Lender may have against such Defaulting Lender.
(c) The Commitments shall automatically be terminated on the latest Termination
Date.
(d) Once terminated, a Commitment or any portion thereof may not be reinstated.
SECTION 2.09. Repayment of Loans.
(a) The Borrower shall repay to (i) the Administrative Agent for the account of each
Lender on the Termination Date applicable to such Lender the aggregate principal amount of the
Revolving Loans made to the Borrower by such Lender then outstanding and (ii) to the
Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the
latest Termination Date (or such earlier Termination Date beyond which the Swingline Lender
has elected, pursuant to Section 2.06(d), not to act in such capacity), and the tenth Business Day
after such Swingline Loan is made; provided that on each date that a Revolving Borrowing is
made, the Borrower shall repay all Swingline Loans then outstanding. Without limiting the
foregoing, the Borrower shall also repay (to the Administrative Agent for the account of the
Lenders) Revolving Loans and (to the Swingline Lender) Swingline Loans, in each ease, to the
extent and at the time required pursuant to the terms of any applicable Governmental Approval
relating to the Borrower's ability to incur Debt.
(b)If at any time the aggregate principal amount of Outstanding Credits exceeds the
Commitments, the Borrower shall pay or prepay so much of the Borrowings and/or Cash
34
Collateralize the LC Outstandings as shall be necessary in order that the Outstanding Credits
minus the principal amount of Cash Collateral securing the LC OutStandings will not exceed the
Commitments.
SECTION 2.10. Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and interest payable and paid to
such Lender from time to time under this Agreement.
(b) The Administrative Agent shall maintain accounts in which it will record (i) the
amount of each Loan made hereunder, the Class and Type of each Loan made and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(c) The entries made in the accounts maintained pursuant to subsections (a) and (b) of
this Section 2.10 shall, to the extent permitted by Applicable Law, be prima facie evidence of the
existence and amounts of the obligations therein recorded; provided,Itowever, that the failure of
any Lender or the Administrative Agent to maintain such accounts or any error therein shall not
in any manner affect the obligations of the Borrower to repay the Loans and interest thereon in
accordance with their terms.
(d) Any Lender may request that any Loans made by it be evidenced by one or more
promissory notes. In such event, the Borrower shall prepare, execute and deliver to such Lender
one or more promissory notes payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its assignees) and in a form reasonably satisfactory to the
Administrative Agent. Thereafter, the Loans evidenced by such promissory notes and interest
thereon shall at all times (including after assignment pursuant to Section 8.07) be represented by
one or more promissory notes in such form payable to the order of the payee named therein.
SECTION 2,11. Interest on Loans.
The Borrower shall pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount shall be paid in full, at the following rates per
annum:
(a) Bose Rate Loans. During such periods as such Loan is a Base Rate Revolving
Loan or a Swingline Loan, a rate per annum equal at all times to the sum of (x) the Base Rate
plus (y) the Applicable Margin for Base Rate Loans in effect from time to time, payable (A) in
the case of Base Rate Revolving Loans, in arrears quarterly on the last day of each March, June,
September and December during such periods and on the date such Base Rate Loan shall be
Converted or paid in full, and (B) in the case of Swingline Loans, on the date such Swingline
Loan is required to be paid in full as provided in Section 2.09.
35
(b) Eurodollor Rate Revolving Loans. During such periods as such Revolving Loan
is a Eurodollar Rate Revolving Loan, a rate per annum equal at all times during each Interest
Period for such Revolving Loan to the sum of (x) the Eurodollar Rate for such Interest Period for
such Revolving Loan plus (y) the Applicable Margin for Eurodollar Rate Revolving Loans in
effect from time to time, payable in arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest Period and on the date such
Eurodollar Rate Revolving Loan shall be Converted or paid in full.
(c) Additional Interest on Eurodollar Rate Revolving Loans. The Borrower shall
pay to each Lender, so long as such Lender shall be required under regulations of the Board of
Governors of the Federal Reserve System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, additional interest on the unpaid principal
amount of each Eurodollar Rate Revolving Loan of such Lender, from the date of such
Revolving Loan until such principal amount is paid in full, at an interest rate per onnum equal at
all times to the remainder obtained by subtracting (i) the Eurodollar Rate for the Interest Period
for such Revolving Loan from (ii) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for such
Interest Period, payable on each date on which interest is payable on such Revolving Loan. Such
additional interest shall be determined by such Lender and notified to the Borrower through the
Administrative Agent.
SECTION 2.12. Interest Rate Determination.
(a) The Administrative Agent shall give prompt notice to the Borrower and the
Lenders of the applicable interest rate determined by the Administrative Agent for purposes of
Section z.ll(a) or (b), and, if applicable, the rate for the purpose of determining the applicable
interest rate under Section 2.11(c).
(b) If, with respect to any Eurodollar Rate Revolving Loans, (i) the Required Lenders
notiff the Administrative Agent that the Eurodollar Rate for any Interest Period for such
Revolving Loans will not adequately reflect the cost to such Required Lenders of making,
funding or maintaining their respective Eurodollar Rate Revolving Loans for such Interest
Period, or (ii) the Administrative Agent determines that adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar
Rate, the Administrative Agent shall forthwith so notify the Borrower and the Lenders,
whereupon (A) each Eurodollar Rate Revolving Loan will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Revolving Loan, and (B) the
obligation of the Lenders to make, or to Convert Revolving Loans into, Eurodollar Rate
Revolving Loans shall be suspended until the Administrative Agent shall notifu the Borrower
and the Lenders that the circumstances causing such suspension no longer exist.
SECTION 2,13, Conversion of Revolving Loans.
(a) Voluntary. The Borrower may on any Business Day, upon notice given to the
Administrative Agent not later than l2:00 noon on the third Business Day prior to the date of the
proposed Conversion and subject to the provisions of Sections 2.12 and2.16, Convert all or any
36
part of Revolving Loans of one Type comprising the same Borrowing into Revolving Loans of
the other Type or of the same Type but having a new Interest Period; provided, however, that any
Conversion of Eurodollar Rate Revolving Loans into Base Rate Revolving Loans shall be made
only on the last day of an Interest Period for such Eurodollar Rate Revolving Loans, any
Conversion of Base Rate Revolving Loans into Eurodollar Rate Revolving Loans shall be in an
amount not less than the minimum amount specified in Section 2.02(b) and no Conversion of any
Revolving Loans shall result in more separate Borrowings than permitted under Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions specified above, speciff (i) the
date of such Conversion, (ii) the Revolving Loans to be Converted, and (iii) if such Conversion
is into Eurodollar Rate Revolving Loans, the duration of the initial Interest Period for each such
Revolving Loan. Each notice of Conversion shall be irrevocable and binding on the Borrower.
This Section shall not apply to Swingline Loans, which may not be Converted.
(b) Mandatory.
(i) If the Borrower shall fail to select the Type of any Revolving Loan or the
duration of any Interest Period for any Borrowing comprising Eurodollar Rate Revolving
Loans in accordance with the provisions contained in the definition of "Interest Period"
in Section l.0l and Section 2.13(a), or if any proposed Conversion of a Borrowing that is
to comprise Eurodollar Rate Revolving Loans upon Conversion shall not occur as a result
of the circumstances described in subsection (c) below, or if an Event of Default has
occurred and is continuing and Eurodollar Rate Revolving Loans are outstanding, the
Administrative Agent will forthwith so notiff the Borrower and the Lenders, and (i) such
Revolving Loans will automatically, on the last day of the then existing Interest Period
therefor, Convert into Base Rate Loans and (ii) the obligation of the Lenders to make, or
to Convert Revolving Loans into, Eurodollar Rate Revolving Loans shall be suspended.
(ii) On the date on which the aggregate unpaid principal amount of Eurodollar
Rate Revolving Loans comprising any Borrowing shall be reduced, by payment or
prepayment or otherwise, to less than $10,000,000, such Revolving Loans shall
automatically Convert into Base Rate Revolving Loans.
(c) Foilure to Convert. Each notice of Conversion given pursuant to subsection (a)
above shall be irrevocable and binding on the Borrower. In the case of any Borrowing that is to
comprise Eurodollar Rate Revolving Loans upon Conversion, the Borrower agrees to indemniff
each Lender against any loss, cost or expense incurred by such Lender if, as a result of the failure
of the Borrower to satisff any condition to such Conversion (including, without limitation, the
occurrence of any Default), such Conversion does not occur. The Borrower's obligations under
this subsection (c) shall survive the repayment of all other amounts owing to the Lenders and the
Administrative Agent under this Agreement and the termination of the Commitments.
(d) Limitation on Certain Conversions. Notwithstanding any other provision of this
Agreement to the contrary, the Borrower may not borrow Revolving Loans at the Eurodollar
Rate or Convert Revolving Loans resulting in Eurodollar Rate Revolving Loans at any time an
Event of Default has occurred and is continuing.
37
SECTION 2.14. Optional Prepayments of Loans.
The Borrower may, (i) upon at least two Business Days' notice, in the case of Eurodollar
Rate Revolving Loans, and (ii) upon notice not later than 12:00 noon on the date of prepayment,
in the case of Base Rate Revolving Loans and Swingline Loans, to the Administrative Agent
(and, in the case of a Swingline Loan, the Swingline Lender) stating the proposed date and
aggregate principal amount of the prepayment, and, if such notice is given, the Borrower shall
prepay the outstanding principal amount of the Loans comprising part of the same Borrowing in
whole or ratably in part, without penalty, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that (x) each partial prepayment
shall be in an aggregate principal amount of $1,000,000 or an integral multiple of $100,000 in
excess thereof and (y) in the event of any such prepayment of a Eurodollar Rate Loan, the
Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to Section
8.04(c).
SECTION 2.15. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, assessment, special
deposit, compulsory loan, insurance charge or similar requirement against assets of
deposits with or for the account of, or credit extended or participated in by, any Lender
(except any reserve requirement reflected in the Eurodollar Rate Reserve Percentage) or
any LC Issuing Bank;
(ii) other than (A) Indemnified Taxes and (B) Excluded Taxes, subject any
Recipient to any Taxes on, or change the basis of taxation of payments to any Recipient
in respect oi its loans, loan principal, letters of credit, commitments, or other obligations,
or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or any LC Issuing Bank or the London interbank
market any other condition, cost or expense (other than Taxes) affecting this Agreement
or Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other
Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its
obligation to make any such Loan, or to increase the cost to such Lender, such LC Issuing Bank
or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the
amount of any sum received or receivable by such Lender, LC Issuing Bank or other Recipient
hereunder (whether of principal, interest or any other amount) then, upon the good faith request
of such Lender, LC Issuing Bank or other Recipient, the Borrower will pay to such Lender, LC
Issuing Bank or other Recipient, as the case may be, such additional amount or amounts as will
compensate such Lender, LC Issuing Bank or other Recipient, as the case may be, for such
additional costs incurred or reduction suffered.
38
(b) Capital Requirements. If any Lender or LC Issuing Bank determines that any
Change in Law affecting such Lender or LC Issuing Bank or any lending office of such Lender
or such Lender's or LC Issuing Bank's holding company, if any, regarding capital or liquidity
requirements, has or would have the effect of reducing the rate of return on such Lender's or LC
Issuing Bank's capital or on the capital of such Lender's or LC Issuing Bank's holding company,
if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made
by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters
of Credit issued by any LC Issuing Bank, to a level below that which such Lender or LC Issuing
Bank or such Lender's or LC Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or LC Issuing Bank's policies and the
policies of such Lender's or LC Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender or LC Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such Lender or LC
Issuing Bank or such Lender's or LC Issuing Bank's holding company for any such reduction
suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or LC Issuing Bank
setting forth the amount or amounts necessary to compensate such Lender or LC Issuing Bank or
its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall pay
such Lender or LC Issuing Bank, as the case may be, promptly upon demand the amount shown
as due on any such certificate.
(d) Delay in Requests. Failure or delay on the part of any Lender or LC Issuing Bank
to demand compensation pursuant to this Section shall not constitute a waiver of such Lender's
or LC Issuing Bank's right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender or LC Issuing Bank pursuant to this Section for any
increased costs incurred or reductions suffered more than 180 days prior to the date that such
Lender or LC Issuing Bank, as the case may be, notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions, and of such Lender's or LC Issuing Bank's
intention to claim compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180-day period referred to above shall be
extended to include the period ofretroactive effect thereof).
SECTION 2.16. Illegality.
If due to any Change in Law it shall become unlawful or impossible for any Lender (or
its Eurodollar Lending Office) to make, maintain or fund its Eurodollar Rate Revolving Loans,
and such Lender shall so notiff the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Lenders and the Borrower, whereupon, until such
Lender notifies the Borrower and the Administrative Agent that the circumstances giving rise to
such suspension no longer exist, the obligation of such Lender to make Eurodollar Rate
Revolving Loans, or to Convert outstanding Revolving Loans into Eurodollar Rate Revolving
Loans, shall be suspended. Before giving any notice to the Administrative Agent pursuant to this
Section 2.16, such Lender shall use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions applicable to such Lender) to designate a different Eurodollar
Lending Office if such designation would avoid the need for giving such notice and would not,
39
in the judgment of such Lender, be otherwise disadvantageous to such Lender. If such notice is
given, each Eurodollar Rate Revolving Loan of such Lender then outstanding shall be converted
to a Base Rate Revolving Loan either (i) on the last day of the then current Interest Period
applicable to such Eurodollar Rate Revolving Loan if such Lender may lawfully continue to
maintain and fund such Revolving Loan to such day or (ii) immediately if such Lender shall
determine that it may not lawfully continue to maintain and fund such Revolving Loan to such
day.
SECTION 2.17. Payments and Computations.
(a) The Borrower shall make each payment to be made by it hereunder not later than
1:00 P.M. on the day when due in Dollars to the Administrative Agent at the Agent's Account
(except payments to be made directly to the Swingline Lender as expressly provided herein) in
same day funds without condition or deduction for any counterclaim, defense, recoupment or
setoff. The Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or commitment fees ratably (other than amounts
payable pursuant to Section 2.02(c),2.06, 2.ll(c), 2.13(c),2.15, 2.18,2.21 or 8.04(c)) to the
Lenders for the account of their respective Applicable Lending Offices, and like funds relating to
the payment of any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Assumption and recording of the
information contained therein in the Register pursuant to Section 8.07(c), from and after the
effective date specified in such Assignment and Assumption, the Administrative Agent shall
make all payments hereunder in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Assumption shall make all appropriate
adjustments in such payments for periods prior to such effective date directly between
themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent payment owed
to such Lender is not made when due hereunder, after any applicable grace period, to charge
from time to time against any or all of the Borrower's accounts with such Lender any amount so
due.
(c) All computations of interest based on the rate referred to in clause (i) of the
definition of the "Base Rate" contained in Section 1.01 shall be made by the Administrative
Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of
interest based on the Eurodollar Rate, the Federal Funds Rate or the rate referred to in clause (iii)
of the definition of the "Base Rate" and of commitment fees and LC Fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the period for which such
interest, commitment fees or LC Fees are payable. Each determination by the Administrative
Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest or
40
commitment fees, as the case may be; provided, ltowever, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Revolving Loans to be made in the next
following calendar month, such payment shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to a Lender 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 Lender on such due date
an amount equal to the amount then due such Lender. If and to the extent that the Borrower shall
not have so made such payment in full to the Administrative Agent, each Lender shall repay to
the Administrative Agent forthwith on demand such amount distributed to such Lender together
with interest thereon, for each day from the date such amount is distributed to such Lender until
the date such Lender repays such amount to the Administrative Agent, at the Federal Funds Rate.
(0 Notwithstanding anything to the contrary set forth in subsection (a) above or
Section 2.04(d), the Borrower may pay, or cause to be paid pursuant to the applicable Related
Documents, the Reimbursement Amount with respect to any drawing under a Bond Letter of
Credit directly to the LC Issuing Bank that issued such Bond Letter of Credit. Upon receipt of
any such payment, such LC Issuing Bank will promptly (i) (A) apply such payment to that
portion of such Reimbursement Amount participations in which have not been funded by the
Lenders under Section 2.0a@) and (B) remit the balance of such payment to the Administrative
Agent for further payment to the Lenders that have funded participations in such Reimbursement
Amount pursuant to Section 2.04(e), or (ii) if such Reimbursement Amount has been financed
with Borrowings, remit such payment to the Administrative Agent, which will apply such
payment to the prepayment of Borrowings in a principal amount equal to the principal amount of
such Reimbursement Amount so financed. The Administrative Agent shall select the
Borrowings to be prepaid pursuant to clause (ii) above in a manner that will mitigate, to the
extent practical, the Borrower's obligations under Section 8.04(c) with respect to such
prepayment.
SECTION 2.18. Taxes.
(a) Issuing Bank. For purposes of this Section 2.18, the term o'Lender" includes any
LC Issuing Bank and the Swingline Lender.
(b) Poyments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower under any Loan Document shall be made without deduction or
withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as
determined in the good faith discretion of an applicable Withholding Agent) requires the
deduction or withholding of any Tax from any such payment by a Withholding Agent, then the
applicable Withholding Agent shall be entitled to make such deduction or withholding and shall
timely pay the full amount deducted or withheld to the relevant Governmental Authority in
accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable
by the Borrower shall be increased as necessary so that after such deduction or withholding has
been made (including such deductions and withholdings applicable to additional sums payable
41
under this Section) the applicable Recipient receives an amount equal to the sum it would have
received had no such deduction or withholding been made.
(c) Poyment of Other Taxes by the Borrower. The Borrower shall timely pay to the
relevant Governmental Authority in accordance with Applicable Law, or at the option of the
Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) Indemnification by the Borrower. The Borrower shall indemniff each Recipient,
within 30 days after demand therefor, for the full amount of any Indemnified Taxes (including
Indemnified Taxes imposed or asserted on or affributable to amounts payable under this Section)
payable or paid by such Recipient or required to be withheld or deducted from a payment to such
Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) Indemni/icotion by the Lenders. Each Lender shall severally indemniff the
Administrative Agent, within 30 days after demand therefor, for any Indemnified Taxes
attributable to such Lender (but only to the extent that the Borrower has not already indemnified
the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the
Borrower to do so). Each Lender shall severally indemniff the Administrative Agent and the
Borrower, within 30 days after demand therefor, for (i) any Taxes attributable to such Lender's
failure to comply with the provisions of Section 8.07(d) relating to the maintenance of a
Participant Register and (ii) any Excluded Taxes attributable to such Lender, in each case, that
are payable or paid by the Administrative Agent or the Borrower in connection with any Loan
Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not
such Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to any Lender by
the Administrative Agent or the Borrower shall be conclusive absent manifest error. Each
Lender hereby authorizes the Administrative Agent or the Borrower to set off and apply any and
all amounts at any time owing to such Lender under any Loan Document or otherwise payable
by the Administrative Agent or the Borrower to the Lender from any other source against any
amount due to the Administrative Agent or the Borrower under this subsection (e).
(f) Evidence of Paymenls. As soon as practicable after any payment of Taxes by the
Borrowerto a Governmental Authority pursuantto this Section 2.18, the Borrower shall deliver
to the Administrative Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(g) Status of Lenders. (i) Any Lender that is entitled to an exemption from or
reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested
by the Borrower or the Administrative Agent, such properly completed and executed
documentation reasonably requested by the Borrower or the Administrative Agent as will permit
such payments to be made without withholding or at a reduced rate of withholding. In addition,
42
any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver
such other documentation prescribed by Applicable Law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent
to determine whether or not such Lender is subject to backup withholding or information
reporting requirements. Notwithstanding anything to the contrary in the preceding two
sentences, the completion, execution and submission of such documentation (other than such
documentation set forth in Section 2.18(g)(ii)(A), (iiXB) and (ii)(D) below) shall not be required
if in the Lender's reasonable judgment such completion, execution or submission would subject
such Lender to any material unreimbursed cost or expense or would materially prejudice the
legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing,
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the
Administrative Agent on or prior to the date on which such Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is
exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so,
deliver to the Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the reasonable request of
the Borrower or the Administrative Agent), whichever of the following is applicable:
(i) in the case of a Foreign Lender claiming the benefits of an income
tax treaty to which the United States is a party (x) with respect to payments of
interest under any Loan Document, executed originals of IRS Form W-8BEN
establishing an exemption from, or reduction ol U.S. federal withholding Tax
pursuant to the "interest" article of such tax treaty and (y) with respect to any
other applicable payments under any Loan Document, IRS Form W-8BEN
establishing an exemption from, or reduction of, U.S. federal withholding Tax
pursuant to the o'business profits" or "other income" article of such tax treaty;
(ii) executed originals of IRS Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the Internal Revenue
Code, (x) a certificate substantially in the form of Exhibit F-l to the effect that
such Foreign Lender is not a "bank" within the meaning of Section 881(c)(3)(A)
of the Intemal Revenue Code, a "10 percent shareholder" of the Borrower within
the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or ao'controlled foreign corporation" described in Section 881(c)(3)(C) of the Internal
Revenue Code (a *U.5. Tax Complionce Certiticate") and (y) executed originals
of IRS Form W-8BEN; or
43
(iv) to the extent a Foreign Lender is not the beneficial owner, executed
originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form
W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit
F-2 or Exhibit F-3, IRS Form W-9, and/or other certification documents from
each beneficial owner, as applicable; provided that if the Foreign Lender is a
partnership and one or more direct or indirect partners of such Foreign Lender are
claiming the portfolio interest exemption, such Foreign Lender may provide a
U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4 on
behalfofeach such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so,
deliver to the Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the reasonable request of
the Borrower or the Administrative Agent), executed originals of any other form prescribed by
Applicable Law as a basis for claiming exemption from or a reduction in withholding Tax, duly
completed, together with such supplementary documentation as may be prescribed by Applicable
Law to permit the Borrower or the Administrative Agent to determine the withholding or
deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be
subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to
comply with the applicable reporting requirements of FATCA (including those contained in
Section l47l(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall
deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and
at such time or times reasonably requested by the Borrower or the Administrative Agent such
documentation prescribed by Applicable Law (including as prescribed by Section
l47l(bX3XC)(i) of the Internal Revenue Code) and such additional documentation reasonably
requested by the Borrower or the Administrative Agent as may be necessary for the Borrower
and the Administrative Agent to comply with their obligations under FATCA and to determine
that such Lender has complied with such Lender's obligations under FATCA or to determine the
amount to deduct and withhold from such payment. Solely for purposes of this clause (D),
"FATCA" shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or
becomes obsolete or inaccurate in any respect, it shall update such form or certification or
promptly noti$ the Borrower and the Administrative Agent in writing of its legal inability to do
so.
(h) Treatment of Certain Refunds. If any party determines, in its sole discretion
exercised in good faith, that it has received a refund of any Taxes as to which it has been
indemnified pursuant to this Section 2.18 (including by the payment of additional amounts
pursuant to this Section 2.18), it shall pay to the indemnif,ing pafi an amount equal to such
refund (but only to the extent of indemnity payments made under this Section with respect to the
Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes)
of such indemnified party and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund). Such indemniffing party, upon the
request of such indemnified pa$, shall repay to such indemnified party the amount paid over
pursuant to this subsection (h) (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) in the event that such indemnified party is required to repay
such refund to such Governmental Authority. Notwithstanding anything to the contrary in this
subsection (h), in no event will the indemnified party be required to pay any amount to an
indemniffing par:ty pursuant to this subsection (h) the payment of which would place the
indemnified party in a less favorable net after-Tax position than the indemnified party would
have been in if the indemnification payments or additional amounts giving rise to such refund
had never been paid. This subsection shall not be construed to require any indemnified party to
make available its Tax returns (or any other information relating to its Taxes that it deems
confidential) to the indemnifying party or any other Person.
(i) Survival. Each party's obligations under this Section 2.18 shall survive the
resignation or replacement of the Administrative Agent or any assignment of rights by, or the
replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all obligations under any Loan Document.
SECTION 2.19. Sharing of Payments, Etc.
If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of its Loans or other obligations
hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of
its Loans and accrued interest thereon or other such obligations greater than its Commitment
Percentage thereof as provided herein, then the Lender receiving such greater proportion shall
(i) notiff the Administrative Agent of such fact, and (ii) purchase (for cash at face value)
participations in the Loans and such other obligations of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them; provided that:
(A) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest; and
(B) the provisions of this Section shall not be construed to apply to (x) any
payment made by the Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence of a
Defaulting Lender and any payment made pursuant to Section 2.02(c),2.06,2.11(c),
2.13(c), 2.15,2.18, 2.21 or 8.04(c) or, in respect of Eurodollar Rate Revolving Loans
converted into Base Rate Revolving Loans, pursuant to Section 2.16), or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Loans or participations in LC Outstandings to any assignee or participant, other
than to the Borrower or any Subsidiary thereof (as to which the provisions of this Section
shall apply).
45
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
Applicable Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
SECTION 2.20. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Dffirent Lending Olfice. If any Lender requests compensation
under Section 2.15, or requires the Borrower to pay any Indemnified Taxes or additional
amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.18, then such Lender shall (at the request of the Borrower) use reasonable efforts to
designate a different Applicable Lending Office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or2.l8, as the case may be, in the future, and
(ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 2.l5,or if the Borrower is required to pay any Indemnified Taxes or additional amounts
to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section2.lS and, in each case, such Lender has declined or is unable to designate a different
Applicable Lending Office in accordance with subsection (a) above, or if any Lender is a
Declining Lender, a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 8.07), all of its interests, rights (other
than its existing rights to payments pursuant to Section 2.15 or Section 2.18) and obligations
under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such assignment);
providedthat:
(i) the Borrower shall have paid to the Administrative Agent the assignment
fee (if any) specified in Section 8.07(b);
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC Outstandings, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 8.Oa(c)) from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts);
(i ii)
compensation
from a
made
in the
under
case of any such assignment resulting
Section 2.15 or payments required to be
claim for
pursuant to
Section 2.18, such assignment
payments thereafter;
result in a reduction such compensation or
(iv) such assignment shall not conflict with Applicable Law;
(v) in the case of any assignment resulting from a Lender becoming a
Declining Lender or a Non-Consenting Lender, the applicable assignee shall have
consented to the applicable extension, amendment, waiver or consent; and
(vi) No Default shall have occurred and be continuing.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
SECTION 2.21. Defoulting Lenders.
(a) Defoulling Lender Adjustments. Notwithstanding anything to the contrary
contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as
such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
(i) Waivers and Amendments. Such Defaulting Lender's right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in the definition of Required Lenders and in Section 8.01.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of such Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Article 6.01 or
otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to
Section 8.05 shall be applied at such time or times as may be determined by the
Administrative Agent as follows: first, to the payment of any amounts owing by such
Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a
pro rata basis of any amounts owing by such Defaulting Lender to any LC Issuing Bank
or the Swingline Lender hereunder; third, to Cash Collateralize the LC Issuing Banks'
Fronting Exposure with respect to such Defaulting Lender in accordance with Section
2.22;fourth, as the Borrower may request (so long as no Default exists), to the funding of
any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof
as required by this Agreement, as determined by the Administrative Agent; fifth, if so
determined by the Administrative Agent and the Borrower, to be held in a deposit
account and released pro rata in order (x) to satisff such Defaulting Lender's potential
future funding obligations with respect to Loans under this Agreement and (y) to Cash
Collateralize the LC lssuing Banks' future Fronting Exposure with respect to such
Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in
accordance with Section 2.22; sixth, to the payment of any amounts owing to the
Lenders, the Issuing Banks or the Swingline Lender as a result of any judgment of a court
of competent jurisdiction obtained by any Lender, the LC Issuing Banks or the Swingline
Lender against such Defaulting Lender as a result of such Defaulting Lender's breach of
its obligations under this Agreement; seventh, so long as no Default exists, to the
47
payment of any amounts owing to the Borrower as a result of any judgment of a court of
competent jurisdiction obtained by the Borrower against such Defaulting Lender as a
result of such Defaulting Lender's breach of its obligations under this Agreement; and
eighth, to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction provided that if (x) such payment is a payment of the principal amount of
any Loans or LC Outstandings in respect of which such Defaulting Lender has not fully
funded its appropriate share, and (y) such Loans were made or the related Letters of
Credit were issued at a time when the conditions set forth in Section 3.02 were satisfied
or waived, such payment shall be applied solely to pay the Loans ofl, and LC
Outstandings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being
applied to the payment of any Loans of, or LC Outstandings owed to, such Defaulting
Lender until such time as all Loans and funded and unfunded participations in LC
Outstandings and Swingline Outstandings are held by the Lenders pro rata in accordance
with the Commitments without giving effect to Section 2.21(a)(iv). Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or
held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to
this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender,
and each Lender irrevocably consents hereto.
(iii) Certain Fees. (A) No Defaulting Lender shall be entitled to receive any
commitment fee for any period during which that Lender is a Defaulting Lender (and the
Borrower shall not be required to pay any such fee that otherwise would have been
required to have been paid to that Defaulting Lender).
(B) Each Defaulting Lender shall be entitled to receive LC Fees for
any period during which that Lender is a Defaulting Lender only to the extent
allocable to its Commitment Percentage of the LC Outstandings for which it has
provided Cash Collateral pursuant to Section2.22.
(C) With respect to any LC Fee not required to be paid to any
Defaulting Lender pursuant to clause (B) above, the Borrower shall (x) pay to
each Non-Defaulting Lender that portion of any such fee otherwise payable to
such Defaulting Lender with respect to such Defaulting Lender's participation in
LC Outstandings or Swingline Outstandings that has been reallocated to such
Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each LC Issuing
Bank and the Swingline Lender, as applicable, the amount of any such fee
otherwise payable to such Defaulting Lender to the extent allocable to such LC
Issuing Bank's or the Swingline Lender's Fronting Exposure to such Defaulting
Lender, and (z) not be required to pay the remaining amount of any such fee.
(iv) Reallocation of Participations to Reduce Fronting Exposure. All or any
part of such Defaulting Lender's participation in LC Outstandings and Swingline
Outstandings shall be reallocated among the Non-Defaulting Lenders in accordance with
their respective Commitment Percentages (calculated without regard to such Defaulting
Lender's Commitment) but only to the extent that (x) the conditions set forth in Section
3.02 are satisfied at the time of such reallocation (and, unless the Borrower shall have
otherwise notified the Administrative Agent at such time, the Borrower shall be deemed
48
to have represented and warranted that such conditions are satisfied at such time), (y)
such reallocation does not cause the aggregate Outstanding Credits of any Non-
Defaulting Lender to exceed such Non-Defaulting Lender's Commitment and (z) such
reallocation does not cause the aggregate Outstanding Credits of all Non-Defaulting
Lenders to exceed the Commitments of all Non-Defaulting Lenders. No reallocation
hereunder shall constitute a waiver or release of any claim of any party hereunder against
a Defaulting Lender arising from that Lender having become a Defaulting Lender,
including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting
Lender' s increased exposure following such reallocation.
(v) Cash Collateral, Repayment of Swingline Loans. If the reallocation
described in paragraph (iv) above cannot, or can only partially, be effected, the Borrower
shall, without prejudice to any right or remedy available to it hereunder or under law, (x)
first, prepay Swingline Loans in an amount equal to the Swingline Lender's Fronting
Exposure and (y) second, Cash Collaterulize the LC Issuing Banks' Fronting Exposure in
accordance with the procedures set forth inSection2.22.
(b) Defoulting Lender Cure. If the Borrower, the Administrative Agent, the
Swingline Lender and each LC Issuing Bank agree in writing that a Lender is no longer a
Defaulting Lender, the Administrative Agent will so notiff the parties hereto, whereupon as of
the effective date specified in such notice and subject to any conditions set forth therein (which
may include arangements with respect to any Cash Collateral), that Lender will, to the extent
applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such
other actions as the Administrative Agent may determine to be necessary to cause the Loans and
funded and unfunded participations in Letters of Credit and Swingline Loans to be held pro rata
by the Lenders in accordance with the Commitments (without giving effect to Section
2.21(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no
adjustments will be made retroactively with respect to fees accrued or payments made by or on
behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that
except to the extent otherwise expressly agreed by the affected parties, no change hereunder
from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party
hereunder arising from that Lender's having been a Defaulting Lender.
(c) New Swingline Loans/Letters of Credit. So long as any Lender is a Defaulting
Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is
satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and
(ii) no LC Issuing Bank shall be required to issue, extend, renew or increase any Letter of Credit
unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
(d) Bankruptcy Event of a Parent Compony. If (i) a Bankruptcy Event with respect
to a direct or indirect parent company of any Lender shall occur following the date hereof and for
so long as such event shall continue or (ii) the Swingline Lender or any LC Issuing Bank has a
good faith belief that any Lender has defaulted in fulfilling its obligations under one or more
other agreements in which such Lender commits to extend credit, the Swingline Lender shall not
be required to fund any Swingline Loan, and no LC Issuing Bank shall be required to issue,
extend, renew or increase any Letter of Credit, unless the Swingline Lender or such LC Issuing
Bank, as the case may be, shall have entered into arrangements with the Borrower or such
49
Lender, satisfactory to the Swingline Lender or such LC Issuing Bank, as the case may be, to
defease any risk to it in respect ofsuch Lender hereunder.
SECTION 2.22. Cash Collateral.
At any time that there shall exist a Defaulting Lender, within one Business Day following
the written request of the Administrative Agent or any LC Issuing Bank (with a copy to the
Administrative Agent) the Borrower shall Cash Collateralize the LC Issuing Banks' Fronting
Exposure with respect to such Defaulting Lender (determined after giving effect to Section
2.21(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less
than the Minimum Collateral Amount.
(i) Grant of Security Interest. The Borrower, and to the extent provided by
any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative
Agent, for the benefit of the LC Issuing Banks, and agrees to maintain, a first priority
security interest in all such Cash Collateral as security for the Defaulting Lenders'
obligation to fund participations in respect of LC Outstandings, to be applied pursuant to
paragraph (ii) below. If at any time the Administrative Agent determines that Cash
Collateral is subject to any right or claim of any Person other than the Administrative
Agent and the LC Issuing Banks as herein provided, or that the total amount of such Cash
Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly
upon demand by the Administrative Agent, pay or provide to the Administrative Agent
additional Cash Collateral in an amount sufficient to eliminate such deficiency (after
giving effect to any Cash Collateral provided by the Defaulting Lender).
(ii) Application Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under this Section 2.22 or Section 2.21 in respect of
Letters of Credit shall be applied to the satisfaction of the Defaulting Lender's obligation
to fund participations in respect of LC Outstandings (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) for which the
Cash Collateral was so provided, prior to any other application of such property as may
otherwise be provided for herein.
(iii) Termination of Requirement. Cash Collateral (or the appropriate portion
thereof) provided to reduce any LC Issuing Bank's Fronting Exposure shall no longer be
required to be held as Cash Collateral pursuant to this Section 2.22 following (A) the
elimination of the applicable Fronting Exposure (including by the termination of
Defaulting Lender status of the applicable Lender), or (B) the determination by the
Administrative Agent and each LC Issuing Bank that there exists excess Cash Collateral;
provided that, subject to Section 2.21, the Person providing Cash Collateral and each LC
Issuing Bank may agree that Cash Collateral shall be held to support future anticipated
Fronting Exposure or other obligations.
50
coNDrfffNrJ'lf, i'Jrrr*,
SECTION 3.01. Conditions Precedent to Effectiveness.
The obligation of each Lender, each LC Issuing Bank and the Swingline Lender to make
the initial Extension of Credit to be made by it hereunder shall become effective on and as of the
first date on which the following conditions precedent have been satisfied:
(a) The Administrative Agent shall have received on or before such date of
effectiveness the following, each dated such day (except as noted otherwise below), in form and
substance reasonably satisfactory to the Administrative Agent and, to the extent requested by the
Administrative Agent, in sufficient copies (except with respect to the promissory notes described
in paragraph (i) below) for the Swingline Lender, each Lender and each LC Issuing Bank:
(i) Promissory notes payable to the order of each Lender that has requested
the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(ii) (A) A copy of the articles of incorporation or other organizational
documents of the Borrower and each amendment thereto, certified by the Secretary of
State of Oregon as being a true and correct copy thereof, and (B) a certificate from the
Secretary of State of Oregon (dated not more than l0 days prior to the date hereof)
attesting to the continued existence and good standing of the Borrower in that State.
(iii) Certified copies of the resolutions of the board of directors of the
Borrower approving this Agreement and the other Loan Documents and of all documents
evidencing other necessary corporate action and Governmental Approvals required for
the execution, delivery and performance by the Borrower of this Agreement and the other
Loan Documents.
(iv) A certificate of the Secretary or Assistant Secretary of the Borrower
certiffing (A) the names and true signatures of the officers of the Borrower authorized to
sign this Agreement and the other documents to be delivered by the Borrower hereunder,
and (B) that attached thereto are true and correct copies of the bylaws of the Borrower as
in effect on such date.
(v) A favorable opinion of in-house counsel for the Borrower, substantially in
the form of Exhibit D-l hereto.
(vi) A favorable opinion of special New York counsel for the Borrower,
substantially in the form of Exhibit D-2 hereto.
(vii) A favorable opinion of King & Spalding LLP, counsel for the
Administrative Agent, in the form of Exhibit E hereto.
(b) On such date, the following statements shall be true and the Administrative Agent
shall have received for the account of each Lender a certificate signed by a duly authorized
officer of the Borrower, dated such date, stating that:
5l
(i) The representations and warranties of the Borrower contained in this
Agreement are true and correct on and as of the date of such effectiveness as though
made on and as of such date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Borrower and each Lender that is an LC Issuing Bank on such date shall have
entered into an LC Issuing Bank Fee Lefter.
(d) The Borrower shall have paid all accrued fees and expenses of the Administrative
Agent, the Global Coordinator, the Joint Lead Arrangers and the Lenders payable on the date
hereof (including the accrued fees and expenses of counsel to the Administrative Agent to the
extent then due and payable).
(e) The Administrative Agent shall have received all documentation and information
required by regulatory authorities under applicable 'oknow your customer" and anti-money
laundering rules and regulations, including without limitation the Patriot Acq to the extent such
documentation or information is requested by the Administrative Agent on behalf of the Lenders
reasonably in advance ofthe date hereof.
(0 All amounts outstanding under the Existing Credit Agreement, whether for
principal, interest, fees or otherwise, shall have been paid in full, all commitments to lend
thereunder shall have been terminated, and the Existing Credit Agreement shall have been
terminated.
(g) The Administrative Agent shall have received such other approvals or documents
as the Administrative Agent, the Swingline Lender, any Lender or any LC Issuing Bank shall
have reasonably requested through the Administrative Agent reasonably in advance of the date
hereof.
SECTION 3.02. Conditions Precedent to each Extension of Credit.
The obligation of each Lender, each LC Issuing Bank and the Swingline Lender to make
each Extension of Credit to be made by it hereunder (other than in connection with any
Borrowing that would not increase the aggregate principal amount of Loans outstanding
immediately prior to the making of such Borrowing) shall be subject to the following statements
being true on the date of such Borrowing (and each of the giving of the applicable Notice of
Borrowing or Request for Issuance and the acceptance by the Borrower of the proceeds of any
such Extension of Credit shall constitute a representation and warranty by the Borrower that on
the date of such Extension of Credit such statements are true):
(i) The representations and warranties of the Borrower contained in
Section 4.01 (other than the representations and warranties in the first sentence of
Section 4.01(g), in Section 4.01(i) and in the first sentence of Section a.0l(n)) are true
and correct in all material respects (without duplication of any materiality qualifiers) on
and as of the date of such Extension of Credit, before and after giving effect to such
Extension of Credit and to the application of the proceeds therefrom, as though made on
and as ofsuch date, and
52
(ii) No event has occurred and is continuing, or would result from such
Extension of Credit or from the application of the proceeds therefrom, that constitutes a
Default.
SECTION 3.03. Conditions Precedent to Issuance of Each Bond Letter of Credit.
The obligation of each LC Issuing Bank to issue any Bond Letter of Credit in connection
with any series of Bonds shall be subject to the satisfaction of the conditions precedent set forth
in Sections 3.01 and 3.02 and the further conditions precedent that:
(a) The Administrative Agent shall have received on or before the date of such
issuance the following, in form and substance reasonably satisfactory to the Administrative
Agent and the applicable LC Issuing Bank and, to the extent requested by the Administrative
Agent, in sufficient copies for each Lender:
(i) Counterparts of any Pledge Agreement relating to such Bonds, duly
executed by the Borrower, the Administrative Agent and the applicable Custodian, or
other evidence that the Bonds purchased with the proceeds of such Bond Letter of Credit
will be effectively pledged to or held for the benefit of such LC Issuing Bank and the
Lenders, and that a separate CUSIP number has been assigned to such Bonds.
(ii) Certified copies or originals of the other applicable Related Documents
(which, in the case of the applicable Bonds, may be a specimen of such Bonds).
(iii) Certified copies of the resolutions of the board of directors of the
Borrower approving the Related Documents to which the Borrower is a parry in
connection with such Bond Letter of Credit, and of all documents evidencing other
necessary corporate action and Governmental Approvals, if any, with respect to the
transactions contemplated by such Related Documents.
(iv) A certificate of the Secretary or Assistant Secretary of the Borrower
certiffing the names and true signatures of the Borrower authorized to sign the Related
Documents to which the Borrower is a party in connection with such Bond Letter of
Credit and the other documents to be delivered by the Borrower hereunder in connection
with the issuance of such Bond Letter of Credit.
(v) A copy of the Official Statement, if any, relating to the Bonds to be
supported by such Bond Letter of Credit.
(vi) A certificate of an authorized officer of the applicable Custodian certiffing
the names, true signatures and incumbency of the officers of such Custodian authorized
to sign the applicable Pledge Agreement.
(vii) A certificate of an authorized officer of the applicable Trustee certiffing
the names, true signatures and incumbency of the officers of such Trustee authorized to
make drawings under such Bond Letter of Credit.
53
(viii) A favorable opinion of counsel to the Borrower with respect to the Related
Documents to which the Borrower is a party.
(ix) A reliance letter from bond counsel relating to the Bonds to be supported
by such Bond Letter of Credit permitting the Lenders to rely on the approving opinion of
bond counsel with respect to such Bonds.
(x) The Administrative Agent shall have received such other approvals or
documents as the Administrative Agent, the Swingline Lender, any Lender or any LC
Issuing Bank shall have reasonably requested through the Administrative Agent
reasonably in advance ofthe date hereof.
(b) On the date of such issuance, the following statements shall be true and correct,
and the Administrative Agent shall have received on or before such date for the account of the
applicable LC Issuing Bank and each Lender a certificate signed by a duly authorized officer of
the Borrower, dated such date, stating that the following representations and warranties are true
and correct in all material respects (without duplication of any materiality qualifiers) on and as of
such date, as though made on and as of such date:
(i) The execution, delivery and performance by the Borrower of each Related
Document to which the Borrower is a party in connection with such Bond Letter of
Credit, and the consummation of the transactions contemplated thereby, are within the
Borrower's corporate powers and have been duly authorized by all necessary corporate
and shareholder action. Each Related Document to which the Borrower is stated to be a
party in connection with such Bond Letter of Credit has been duly executed and delivered
by the Borrower.
(ii) No authorization or approval or other action by, and no notice to or filing
with, any Governmental Authority or any other third party is required for the due
execution, delivery and performance by the Borrower of any Related Document to which
the Borrower is a party in connection with such Bond Letter of Credit, other than such
authorizations, approvals, actions, notices and filings that have been obtained or made (as
applicable) prior to such date.
(iii) The execution, delivery and performance by the Borrower of each Related
Document to which the Borrower is a party in connection with such Bond Letter of
Credit will not (A) violate (x) the articles of incorporation or bylaws (or comparable
documents) of Borrower or any of its Material Subsidiaries or (y) any Applicable Law,
(B) be in conflict with, or result in a breach of or constitute a default under, any contract,
agreement, indenture or instrument to which the Borrower or any of its Material
Subsidiaries is a party or by which any of its or their respective properties is bound, or
(C) result in the creation or imposition of any Lien on the property of Borrower or any of
its Material Subsidiaries other than Permitted Liens and Liens required under this
Agreement, except to the extent such conflict, breach or default referred to in the
preceding clause (B), individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect.
54
(iv) Each Related Document to which the Borrower is a party in connection
with such Bond Letter of Credit is the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms.
(v) The representations and warranties of the Borrower in the Related
Documents to which the Borrower is a party in connection with such Bond Leffer of
Credit are true and correct in all material respects (without duplication of any materiality
qualifiers).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the State of Oregon and is duly qualified to do business and is in good
standing as a foreign corporation under the laws of each state in which the ownership of its
properties or the conduct of its business makes such qualification necessary, except where the
failure to be so qualified would not reasonably be expected to have a Material Adverse Effect,
and each Material Subsidiary is duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by the Borrower of each Loan
Document, and the consummation of the transactions contemplated hereby and thereby, are
within the Borrower's corporate powers and have been duly authorized by all necessary
corporate action. Each Loan Document has been duly executed and delivered by the Borrower.
(c) No authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority or any other third party is required for the due execution, delivery
and performance by the Borrower of any Loan Document, other than such Governmental
Approvals that have been duly obtained and are in full force and effect, which as of the date
hereof include: Decision 88-04-062 of the Public Utilities Commission of the State of California
dated April 27 , 19881' Order No. 32221 of the Idaho Public Utilities Commission issued April 8,
2011, in Case No. PAC-E-11-09; Order No. 94-1240 and Order No. 98-158 of the Public Utility
of Commission of Oregon issued August 17, 1994 and April 16, 1998, respectively; Order
Establishing Compliance issued April 8, 1998, in Docket UE-980404, by the Washington
Utilities and Transportation Commission; Order Approving Securities Exemption and Accepting
the Substance and Format of the Quarterly Financing Activity Report To Be Filed Thereunder
issued November l, 2010, in Docket No. 20000-372-EA-10 (Record No. 12519), by the Public
Service Commission of Wyoming; Report and Order issued May 10, 2007, in Docket No. 07-
035-16, by the Public Service Commission of Utah; and Letter Order issued November 29,2011,
in Docket No. ESl l-51-000, by the Federal Energy Regulatory Commission.
(d) The execution, delivery and performance by Borrower of the Loan Documents
will not (i) violate (A) the articles of incorporation or bylaws (or comparable documents) of
55
Borrower or any of its Material Subsidiaries or (B) any Applicable Law, (ii) be in conflict with,
or result in a breach of or constitute a default under, any contract, agreement, indenture or
instrument to which the Borrower or any of its Material Subsidiaries is a pa(y or by which any
of its or their respective properties is bound or (iii) result in the creation or imposition of any
Lien on the property of Borrower or any of its Material Subsidiaries other than Permitted Liens
and Liens required under this Agreement, except to the extent such conflict, breach or default
referred to in the preceding clause (ii), individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
(e) Each Loan Document is the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except as limited by bankruptcy
and similar laws affecting the enforcement of creditors' rights generally and by the application of
general equitable principles.
(D The Borrower and each Material Subsidiary are in compliance with all Applicable
Laws (including Environmental Laws), except to the extent that failure to comply would not
reasonably be expected to have a Material Adverse Effect.
(g) There is no action, suit, proceeding, claim or dispute pending or, to the
Borrower's knowledge, threatened against or affecting the Borrower or any of its Material
Subsidiaries, or any of its or their respective properties or assets, before any Governmental
Authority that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect. There is no injunction, writ, preliminary restraining order or any other order of
any nature issued by any Governmental Authority directing that any material aspect of the
transactions expressly provided for in any of the Loan Documents not be consummated as herein
or therein provided.
(h) The consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
as at December 31,2011, and the related consolidated statements of income, cash flows and
stockholders' equity for the fiscal year ended on such date, certified by Deloitte & Touche LLP,
copies of which have heretofore been fumished to the Administrative Agent and each Lender,
present fairly in all material respects the financial condition of the Borrower and its Consolidated
Subsidiaries as at such date, and the consolidated results of their operations and cash flows for
the fiscal year then ended. The consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as at March 31,2012, and the related consolidated statements of income, cash flows
and stockholders' equity for the fiscal quarter ended on such date, copies of which have
heretofore been fumished to the Administrative Agent and each Lender, present fairly in all
material respects the consolidated financial condition of the Borrower and its Consolidated
Subsidiaries as at such date, and the consolidated results of their operations and cash flows for
the fiscal quarter then ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been prepared in accordance
with GAAP applied consistently throughout the periods involved (except as may be disclosed
therein).
(i) Since December 31,2011, no event has occurred that could reasonably be
expected to have a Material Adverse Effect.
56
0) The Borrower and each Material Subsidiary have filed or caused to be filed all
Federal and other material tax returns that are required by Applicable Law to be filed, and have
paid all taxes shown to be due and payable on said returns or on any assessments made against it
or any of its property; other than (i) with respect to taxes the amount or validity of which is
currently being contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the Borrower or the
applicable Material Subsidiary, as the case may be, or (ii) to the extent that the failure to do so
could not reasonably be expected to result in a Material Adverse Effect.
(k) No ERISA Event has occurred other than as would not, either individually or in
the aggregate, be reasonably expected to have a Material Adverse Effect. There are no actions,
suits or claims pending against or involving a Pension Plan (other than routine claims for
benefits) or, to the knowledge of the Borrower or any of its ERISA Affiliates, threatened, that
would reasonably be expected to be asserted successfully against any Pension Plan and, if so
asserted successfully, would reasonably be expected either singly or in the aggregate to have a
Material Adverse Effect. No lien imposed under the Internal Revenue Code or ERISA on the
assets of the Borrower or any of its ENSA Affiliates exists or is likely to arise with respect to
any Pension Plan. The Borrower and each of its Subsidiaries have complied with foreign law
applicable to its Foreign Plans, except to the extent that failure to comply would not reasonably
be expected to have a Material Adverse Effect.
(l) The Borrower is not engaged in the business of extending credit for the purpose of
buying or carrying Margin Stock, and no proceeds of any Loan will be used to buy or carry any
Margin Stock or to extend credit to others for the purpose of buying or carrying any Margin
Stock. Not more than 25o/o of the assets of the Borrower and the Material Subsidiaries that are
subject to the restrictions of Section 5.02(a) or (c) constitute Margin Stock.
(m) Neither the Borrower nor any Subsidiary is an "investment company" or a
company "controlled" by an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended.
(n) There are no claims, liabilities, investigations, litigation, notices of violation or
liability, administrative proceedings, judgments or orders, whether asserted, pending or
threatened, relating to any liability under or compliance with any applicable Environmental Law,
against the Borrower or any Material Subsidiary or relating to any real property currently or
formerly owned, leased or operated by the Borrower or any Material Subsidiary, that would
reasonably be expected to have a Material Adverse Effect. No Hazardous Materials have been or
are present or are being spilled, discharged or released on, in, under or from property (real,
personal or mixed) currently or formerly owned, leased or operated by the Borrower or any
Material Subsidiary in any quantity or manner violating, or resulting in liability under, any
applicable Environmental Law, which violation or liability would reasonably be expected to
have a Material Adverse Effect.
(o) No written statement or information furnished by or on behalf of the Borrower to
the Administrative Agent, any Lender or any LC Issuing Bank in connection with the
syndication or negotiation of this Agreement (including the CIM) or delivered pursuant hereto, in
each case as of the date such statement or information is made or delivered, as applicable,
57
contained or contains, any material misstatement of fact or intentionally omitted or omits to state
any material fact necessary to make the statements therein, in the light of the circumstances
under which they were, are, or will be made, not misleading.
(p) Each Material Subsidiary as ofthe date hereof is set forth on Schedule III.
(q) The Borrower and each Material Subsidiary are in compliance in all material
respects with all (i) United States economic sanctions laws, executive orders and implementing
regulations as promulgated by the U.S. Treasury Department's Office of Foreign Assets Control,
(ii) applicable anti-money laundering and counter-terrorism financing provisions of the Bank
Secrecy Act and all rules regulations issued pursuant to it and (iii) applicable provisions of the
United States Foreign Corrupt Practices Act of 1977 .
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenonts.
So long as any Loan or any other amount payable hereunder shall remain unpaid, any
Letter of Credit shall remain outstanding or any Lender shall have any Commitment hereunder,
the Borrower will:
(a) Payment of Taxes; Etc. Pay and discharge, and cause each Material Subsidiary to
pay and discharge, before the same shall become delinquent, (i) all taxes, assessments and
governmental charges or levies imposed upon it or its property, and (ii) all lawful claims that, if
unpaid, would by Applicable Law become a Lien upon its property, in each case, except to the
extent that the failure to pay and discharge such amounts, either singly or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect; provided, however, that neither
the Borrower nor any Material Subsidiary shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper proceedings and
as to which adequate reserves are being maintained in accordance with GAAP.
(b) Preservotion of Existence, Etc, Preserve and maintain, and cause each Material
Subsidiary to preserve and maintain, its corporate, partnership or limited liability company (as
the case may be) existence and all rights (charter and statutory) and franchises, except to the
extent the failure to maintain such rights and franchises would not reasonably be expected to
have a Material Adverse Effect; provided, however, that the Borrower and any Material
Subsidiary may consummate any merger or consolidation permitted under Section 5.02(b).
(c) Compliance with Laws, Etc. Comply, and cause each Material Subsidiary to
comply with Applicable Law (with such compliance to include, without limitation, compliance
with Environmental Laws, the Patriot Act and the United States economic sanctions laws,
executive orders and implementing regulations as promulgated by the U.S. Treasury
Department's Office of Foreign Assets Control), except to the extent the failure to do so would
not reasonably be expected to have a Material Adverse Effect.
s8
(d) Inspection Rights. At any reasonable time and from time to time, permit the
Administrative Agent, the Swingline Lender, any LC Issuing Bank or any Lender or any
designated agents or representatives thereof, at all reasonable times and to the extent permitted
by Applicable Law, to examine and make copies of and abstracts from the records and books of
account of, and visit the properties of, the Borrower and any Material Subsidiary and to discuss
the affairs, finances and accounts of the Borrower and any Material Subsidiary with any of their
officers or directors and with their independent certified public accountants (at which discussion,
if the Borrower or such Material Subsidiary so requests, a representative of the Borrower or such
Material Subsidiary shall be permitted to be present, and if such accountants should require that a
representative of the Borrower be present, the Borrower agrees to provide a representative to
attend such discussion); provided that (i) such designated agents or representatives shall agree to
any reasonable confidentiality obligations proposed by the Borrower and shall follow the
guidelines and procedures generally imposed upon like visitors to the Borrower's facilities, and
(ii) unless an Event of Default shall have occurred and be continuing, such visits and inspections
shall occur not more than once in any fiscal quarter.
(e) Keeping of Books. Keep, and cause each Material Subsidiary to keep, proper
books of record and account, in which full and correct entries shall be made of all financial
transactions and the assets and business of the Borrower and each such Material Subsidiary in
accordance with GAAP.
(f) Maintenance of Properties, Etc. Maintain and preserve, and cause each Material
Subsidiary to maintain and preserve, all of its properties that are material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted.
(g) Maintenance of Insuronce. Maintain, and cause each Material Subsidiary to
maintain, insurance with responsible and reputable insurance companies or associations in such
amounts and covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which Borrower or any of
its Material Subsidiaries operates to the extent available on commercially reasonable terms (the
"Industry Standart'); provided,ltowever, that the Borrower and each Material Subsidiary may
self-insure to the same extent as other companies engaged in similar businesses and owning
similar properties and to the extent consistent with prudent business practice; and provided,
further, that if the Industry Standard is such that the insurance coverage then being maintained by
Borrower and its Material Subsidiaries is below the Industry Standard, Borrower shall only be
required to use its reasonable best efforts to obtain the necessary insurance coverage such that its
and its Material Subsidiaries' insurance coverage equals or is greater than the Industry Standard.
(h) Reporting Requiremenls. Furnish to the Lenders:
(i) within 60 days after the end of each of the first three quarters of each
fiscal year of the Borrower, a copy of the consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of the end of such quarter and consolidated statements of
income and cash flows of the Borrower and its Consolidated Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end of such
quarter, duly certified (subject to year-end audit adjustments) by the chief financial
officer, chief accounting officer, treasurer or assistant treasurer of the Borrower as having
59
been prepared in accordance with generally accepted accounting principles and a
certificate of the chief financial officer, chief accounting officer, treasurer or assistant
treasurer of the Borrower as to compliance with the terms of this Agreement and setting
forth in reasonable detail the calculations necessary to demonstrate compliance with
Section 5.03, provided that in the event of any change in GAAP used in the preparation
of such financial statements, the Borrower shall also provide, if necessary for the
determination of compliance with Section 5.03, a statement of reconciliation conforming
such financial statements to GAAP in effect on the date hereof;
(ii) within 120 days after the end of each fiscal year of the Borrower, a copy
of the annual audit report for such year for the Borrower and its Consolidated
Subsidiaries, containing a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such fiscal year and consolidated statements of
income and cash flows of the Borrower and its Consolidated Subsidiaries for such fiscal
year, in each case accompanied by an opinion by Deloitte & Touche LLP or other
independent public accountants of nationally recognized standing, and a certificate of the
chief financial officer, chief accounting officer, treasurer or assistant treasurer of the
Borrower as to compliance with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate compliance with Section 5.03,
provided that in the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for the determination
of compliance with Section 5.03, a statement of reconciliation conforming such financial
statements to GAAP in effect on the date hereof;
(iii) within five days after the chief financial officer or treasurer of the
Borrower obtains knowledge of the occurrence of any Default, a statement of the chief
financial officer or treasurer of the Borrower setting forth details of such Default and the
action that the Borrower has taken and proposes to take with respect thereto;
(iv) within ten Business Days after the Borrower or any of its ERISA Affiliates
knows or has reason to know that (A) the Borrower or any of its ERISA Affiliates has
failed to comply with ERISA or the related provisions of the Internal Revenue Code with
respect to any Pension Plan, and such noncompliance will, or could reasonably be
expected to, result in material liability to the Borrower or its Subsidiaries, and/or (B) any
ERISA Event (other than an ERISA Event as defined in clause (vi) of the definition of
"ERISA Event") has occurred, a certificate of the chief financial officer of the Borrower
describing such ERISA Event and the action, if any, proposed to be taken with respect to
such ERISA Event and a copy of any notice filed with the PBGC or the IRS pertaining to
such ERISA Event and all notices received by the Borrower or such ERISA Affiliate
from the PBGC or any other governmental agency with respect thereto;
(v) promptly after the commencement thereof, notice of all actions and
proceedings before, and orders by, any Governmental Authority affecting the Borrower
or any Material Subsidiary of the type described in Section 4.01(g);
(vi) together with the financial statements delivered in paragraphs (i) and (ii)
of this Section 5.01(h), if Schedule III shall no longer set forth a complete and correct list
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of all Material Subsidiaries as of the last date of the period for which such financial
statements were prepared, an updated Schedule III setting forth all Material Subsidiaries
as of the last date of such period for which such financial statements have been prepared;
and
(vii) such other information respecting the Borrower or any of its Subsidiaries
as any Lender through the Administrative Agent may from time to time reasonably
request.
If the financial statements required to be delivered pursuant to Section 5.01(hxi) or 5.01(h)(ii)
are included in any Form 10-K or lO-Q filed by the Borrower, the Borrower's obligation to
deliver such documents or information to the Administrative Agent shall be deemed to be
satisfied upon (x) delivery of a copy of the relevant form to the Administrative Agent within the
time period required by such Section or (y) the relevant form being available on EDGAR and the
delivery of a notice to the Administrative Agent (which notice may be delivered by electronic
mail and/or included in the applicable compliance certificate delivered pursuant to Section
5.01(h)(i) or 5.01(h)(ii)) that such form is so available, in each case within the time period
required by such Section.
(i) Use of Proceeds. Use the proceeds of the Borrowings and the Letters of Credit
for working capital and other general corporate purposes.
0) Control of Purchosed Bonds. So long as any Bond Letter of Credit shall remain
outstanding, cause each Bond purchased with the proceeds of such Bond Letter of Credit to be
subject to the Lien of an applicable Pledge Agreement or otherwise registered in the name of the
applicable LC Issuing Bank, the Administrative Agent or any nominee of such LC Issuing Bank
or of the Administrative Agent pending the remarketing of such Bonds pursuant to the applicable
Remarketing Agreement and the other applicable Related Documents.
SECTION 5.02, Negative Covenonts.
So long as any Loan or any other amount payable hereunder shall remain unpaid, any
Letter of Credit shall remain outstanding or any Lender shall have any Commitment hereunder,
the Borrower agrees that it will not:
(a) Liens, Etc, Create or suffer to exist, or cause or permit any Material Subsidiary to
create or suffer to exist, any Lien on or with respect to any of its properties, including, without
limitation, equity interests held by such Person in any Subsidiary of such Person, whether now
owned or hereafter acquired, other than (i) Permitted Liens, (ii) Liens created under Section2.22
or 6.02, (iii) Liens created by the Mortgage and Deed of Trust, dated as of January 9, 1989, as
amended and supplemented, of PacifiCorp, entered into with The Bank of New York Mellon
Trust Company, N.A. (as successor trustee to JPMorgan Chase Bank, N.A.) or any other first
mortgage indenture or similar agreement or instrument pursuant to which the Borrower or any of
its Material Subsidiaries may issue bonds, notes or similar instruments secured by a lien on all or
substantially all of its fixed assets, so long as under the terms of such indenture no "event of
default" (howsoever designated) in respect of any bonds or other instruments issued thereunder
will be triggered by reference to a Default, and (iv) Liens, in addition to the foregoing, securing
6l
obligations not greater than the greater of (A) 7.5%o of consolidated shareholders' equity of all
classes (whether common, preferred, mandatorily convertible preferred or preference) of the
Borrower and (B) $100,000,000.
(b) Mergers, Etc, Merge or consolidate with or into any Person, unless (i) the
successor entity (if other than the Borrower) (A) assumes, in form reasonably satisfactory to the
Administrative Agent, all of the obligations of the Borrower under this Agreement, (B) is a
corporation or limited liability company formed under the laws of the United States of America,
one of the States thereof or the District of Columbia, (C) is in pro forma compliance with the
covenant in Section 5.03 both before and after giving effect to such proposed transaction and (D)
has long-term senior unsecured debt ratings issued (and confirmed after giving effect to such
merger) by S&P or Moody's of at least BBB- and Baa3, respectively (or if no such ratings have
been issued, commercial paper ratings issued (and confirmed after giving effect to such merger)
by S&P and Moody's of at least A-3 and P-3, respectively), and (ii) no Default shall have
occurred and be continuing at the time of such proposed transaction or would result therefrom,
and provided, in each case of clause (i) where the successor entity is other than the Borrower,
that the Administrative Agent shall have received, and be reasonably satisfied with, all
documentation and information required by regulatory authorities under applicable "know your
customer" and anti-money laundering rules and regulations, including without limitation the
Patriot Act, to the extent such documentation or information is requested by the Administrative
Agent on behalf of the Lenders prior to the date of such proposed transaction.
(c) Soles, Etc. of Assets. Sell, lease, transfer or otherwise dispose of all or
substantially all ofits assets to any Person, or grant any option or other right to purchase, lease or
otherwise acquire such assets, except that the Borrower may sell, lease, transfer or otherwise
dispose of all or substantially all of its assets to any Person so long as the requirements set forth
in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which the
Borrower is not the surviving entity.
(d) Use of Proceeds. Use the proceeds of any Extension of Credit to buy or carry
Margin Stock.
(e) Optional Redemption of Bonds. So long as any Bond Letter of Credit shall
remain outstanding, cause or permit delivery of a notice of an optional redemption or purchase of
the applicable Bonds or of a change in the interest modes (other than to or from a mode in which
interest is payable at arate determined daily or weekly) on such Bonds resulting in a mandatory
redemption or purchase of such Bonds under the applicable Indenture, unless (i) the Borrower
has deposited with the Administrative Agent, the applicable LC Issuing Bank or the applicable
Trustee an amount equal to the principal of, premium, if any, and interest on such Bonds on the
date of such redemption or purchase, or (ii) any notice of such redemption or purchase or change
in the applicable interest mode is conditional upon receipt by the applicable Trustee or paying
agent on or prior to the date fixed for the applicable redemption or purchase of funds (other than
funds drawn under such Bond Letter of Credit) sufficient to pay the principal of, premium, if
any, and interest on such Bonds on the date of such redemption or purchase.
(f) Amendments to Indenture. So long as any Bond Letter of Credit shall remain
outstanding, amend, modify, terminate or grant, or permit the amendment, modification,
62
termination or grant of, any waiver under (or consent to, or permit or suffer to occur any action
or omission which results in, or is equivalent to, an amendment, modification, or grant of a
waiver under) any provision of the applicable Indenture that would (i) directly affect the rights or
obligations of the applicable LC Issuing Bank under the applicable Related Documents without
the prior written consent of such LC Issuing Bank or (ii) have an adverse effect on the rights or
obligations of the Lenders hereunder without the prior written consent of the Required Lenders.
(g) Of/icial Statement. So long as any Bond Letter of Credit shall remain
outstanding, refer to the applicable LC Issuing Bank in the Official Statement with respect to the
applicable Bonds or make any changes in reference to such LC Issuing Bank in any revision,
amendment or supplement without the prior consent of such LC Issuing Bank, or revise, amend
or supplement such Official Statement without providing a copy of such revision, amendment or
supplement, as the case may be, to such LC Issuing Bank.
(h) Use of Proceeds of Bond Letter of Credit. So long as any Bond Letter of Credit
shall remain outstanding, permit any proceeds of such Bond Letter of Credit to be used for any
purpose other than the payment of the principal of, interest on, redemption price of and purchase
price of the applicable Bonds.
SECTION 5.03. Financial Covenanl
So long as any Loan shall remain unpaid, any Letter of Credit shall remain outstanding or
any Lender shall have any Commitment hereunder, the Borrower will maintain a ratio of
Consolidated Debt to Consolidated Capital of not greater than 0.65 to 1.00 as of the last day of
each fiscal quarter.
ARTICLE YI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.
If any of the following events ("Events of Defaulf') shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan when the same becomes
due and payable, or shall fail to pay any interest on any Loan or make any other payment of fees
or other amounts payable under this Agreement within five days after the same becomes due and
payable, or shall fail to provide Cash Collateral in accordance with Section 2.21(a)(v),2.22 or
6.02 within five days after the same is required to be provided; or
(b) Any representation or warranty made by the Borrower herein or by the Borrower
(or any of its officers) in connection with this Agreement shall prove to have been incorrect in
any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(b), 5.01(i), 5.02 or 5.03, or (ii) the Borrower shall fail to perform or
observe any other term, covenant or agreement contained in this Agreement or any other Loan
Document if such failure shall remain unremedied for 30 days after written notice thereof shall
have been given to the Borrower by the Administrative Agent or any Lender; or
(d) The Borrower or any Material Subsidiary shall fail to pay any principal of or
premium or interest on any Debt (other than Debt under this Agreement) that is outstanding in a
principal amount in excess of $100,000,000 in the aggregate when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt and shall continue after
the applicable grace period, if any, specified in such agreement or instrument, if the effect of
such event or condition is to accelerate, or to permit the acceleration of, the maturity of such
Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or redemption), prior to the
stated maturity thereof; or
(e) Any judgment or order for the payment of money in excess of $100,000,000 to
the extent not paid or insured shall be rendered against the Borrower or any Material Subsidiary
and either (i) enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(0 The Borrower or any Material Subsidiary shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be instituted by or against
the Borrower or any Material Subsidiary seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any Material Subsidiary shall take
any corporate action to authorize any of the actions set forth above in this subsection (0; or
(g) An ERISA Event shall have occurred that, when taken together with all other
EzuSA Events that have occurred, has resulted in, or is reasonably likely to result in, a Material
Adverse Effect; or
(h) (i) Berkshire Hathaway shall fail to own, directly or indirectly, at least 50% of the
issued and outstanding shares of common stock of the Borrower, calculated on a fully diluted
basis or (ii) MidAmerican Energy Holdings Company shall fail to own, directly or indirectly, at
least 80% of the issued and outstanding shares of common stock of the Borrower, calculated on a
fully diluted basis (each, a "Change of Controt'); provided that, in each case of the foregoing
64
clauses (i) and (ii), such failure shall not constitute an Event of Default unless and until a Rating
Decline has occurred;
then, and in any such event, the Administrative Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the obligation of the
Swingline Lender, each Lender and each LC Issuing Bank to make Extensions of Credit to be
terminated, whereupon the same shall forthwith terminate; (ii) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrower, declare the outstanding
Borrowings, all interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the outstanding Borrowings, all such interest and all such
amounts shall become and be forthwith due and payable by the Borrower, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States of America, (A)
the obligation of the Swingline Lender, each Lender and each LC Issuing Bank to make
Extensions of Credit shall automatically be terminated and (B) the outstanding Borrowings, all
such interest and all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived
by the Borrower; (iii) shall at the request, or may with the consent, of the Required Lenders by
notice to the Borrower, give notice of the occurrence of an Event of Default to the Trustee for
each series of Bonds supported by a Bond Letter of Credit issued for the account of the Borrower
and instruct such Trustee either to accelerate such Bonds, thereby causing such Bond Letter of
Credit to expire thereafter, per the terms of such Bond Letter of Credit, or to effect a mandatory
tender of such Bonds; and (iv) shall at the request, or may with the consent, of the Required
Lenders by notice to the Borrower, pursue any rights and remedies on behalf of the Lenders and
the applicable LC Issuing Bank that the Administrative Agent may have under the Related
Documents executed and delivered in connection with any Bond Letter of Credit.
In addition, if an "Event of Default" (or any other similar term) under and as defined in
any Indenture executed and delivered in connection with any Bond Letter of Credit (a "Bond
Event of Default') shall have occurred and be continuing, such circumstance shall constitute an
Event of Default hereunder solely for the purpose of permiuing the exercise of the remedies
described in clauses (iii) and (iv) of the immediately preceding paragraph with respect to the
Bonds for which such Bond Event of Default exists and the related Bond Leffer of Credit and not
for any other purpose under this Agreement. For the avoidance of doubt, a Bond Event of
Default shall not give the Administrative Agent the right to exercise any other remedy described
in the immediately preceding paragraph, unless such Bond Event of Default, or the facts and
circumstances underlying such Bond Event of Default, gives rise to another Event of Default
otherwise described in Section 6.01.
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default.
If any Event of Default described in Section 6.01(0 with respectto the Borrower shall
have occurred and be continuing or the Borrowings shall have otherwise been accelerated or the
Commitments terminated pursuant to Section 6.01, then the Administrative Agent may, or shall
at the request of the Required Lenders, make demand upon the Borrower to, and forthwith upon
such demand the Bonower will, deposit in an account designated in such demand (the "LC
65
Collateral Accounf') with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders and LC Issuing Banks, in same day funds, an amount equal to
103% of the aggregate undrawn stated amounts of all Letters of Credit that are outstanding on
such date. If at any time the Administrative Agent determines that any funds held in the LC
Collateral Account are subject to any right or claim of any Person other than the Administrative
Agent, the Lenders and the LC Issuing Banks or that the total amount of such funds is less than
103% of the aggregate undrawn stated amounts of all Letters of Credit that are outstanding on
such date, the Borrower will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the LC Collateral Account,
an amount equal to the excess of (i) 103% of such aggregate undrawn stated amounts of all
Letters of Credit that are outstanding on such date over (ii) the total amount of funds, if any, then
held in the LC Collateral Account that the Administrative Agent determines to be free and clear
of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on
deposit in the LC Collateral Account, such funds shall be applied to reimburse the relevant LC
Issuing Bank or Lender holding a participation in the reimbursement obligation of the Borrower
to such LC Issuing Bank to the extent permitted by Applicable Law.
rHE ADNfi ftL'f#rlll o"r*r
SECTION 7.01. Appointment and Authority.
Each of the Swingline Lender, each Lender and each LC Issuing Bank hereby irrevocably
appoints JPMCB to act on its behalf as the Administrative Agent hereunder, under the other
Loan Documents and the Related Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely for the benefit of the Administrative
Agent, the Swingline Lender, the Lenders and the LC Issuing Banks, and the Borrower shall not
have rights as a third-party beneficiary of any of such provisions. It is understood and agreed
that the use of the term "agent" herein, in any other Loan Document or any Related Document
(or any other similar term) with reference to the Administrative Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency doctrine of any
Applicable Law. Instead such term is used as a matter of market custom, and is intended to
create or reflect only an administrative relationship between contracting parties.
SECTION 7.02. Rights as o Lender.
The Person serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent, and the term "Swingline Lender", "Lender" or "Lenders"
shall, unless otherwise expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual capacity. Such Person
and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial
advisor or in any other advisory capacity for, and generally engage in any kind of business with,
the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the Lenders.
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SECTION 7.03. Exculpotory Provisions.
(a) The Administrative Agent shall not have any duties or obligations except those
expressly set forth herein, in the other Loan Documents and in the Related Documents, and its
duties hereunder shall be administrative in nature. Without limiting the generality of the
foregoing, the Administrative Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated
hereby, by the other Loan Documents or by the Related Documents that the
Administrative Agent is required to exercise as directed in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be expressly
provided for herein, in the other Loan Documents or in the Related Documents); provided
that the Administrative Agent shall not be required to take any action that, in its opinion
or the opinion of its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document, any Related Document or Applicable Law, including for
the avoidance of doubt any action that may be in violation of the automatic stay under
any Debtor Relief Law or that may effect a forfeiture, modification or termination of
property of a Defaulting Lender in violation of any Debtor Relief Law; and
(iii) shall not, except as expressly set forth herein, in the other Loan
Documents or in the Related Documents, have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
(b) The Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in
good faith shall be necessary, under the circumstances as provided in Sections 6.01, 6.02 and
8.01), or (ii) in the absence of its own gross negligence or willful misconduct as determined by a
court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent in writing by the Borrower, a Lender or an LC
Issuing Bank.
(c) The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in or in connection
with this Agreement, any other Loan Document or any Related Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan
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Document, any Related Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
SECTION 7.04. Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement, instrument, document or
other writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person. The Administrative Agent also may rely upon any statement
made to it orally or by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of the Swingline Lender, a Lender or
an LC Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to
the Swingline Lender, such Lender or such LC Issuing Bank unless the Administrative Agent
shall have received notice to the contrary from the Swingline Lender, such Lender or such LC
Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or
experts.
SECTION 7.05. Resignation of Administrative Agent.
(a) The Administrative Agent may at any time give notice of its resignation to the
Swingline Lender, the Lenders, the LC Issuing Banks and the Borrower. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor, which shall be (i) a commercial bank with an office in the
United States having a combined capital and surplus of at least $500,000,000, or an Affiliate of
any such bank with an office in the United States and (ii) subject to the approval of the Borrower
so long as no Default shall have occurred and be continuing (such approval not to be
unreasonably withheld or delayed). If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the
Required Lenders) (the "Resignation Effective Date"), then the retiring Administrative Agent
may (but shall notbe obligatedto), on behalf of the Swingline Lender, the Lenders and the LC
Issuing Banks, appoint a successor Administrative Agent meeting the qualifications set forth
above. Whether or not a successor has been appointed, such resignation shall become effective
in accordance with such notice on the Resignation Effective Date.
(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to
clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by
Applicable Law, by notice in writing to the Borrower and such Person remove such Person as
Administrative Agent and, in consultation with the Borrower, appoint a successor, which shall be
(i) a commercial bank with an office in the United States having a combined capital and surplus
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of at least $500,000,000, or an Affiliate of any such bank with an office in the United States and
(ii) subject to the approval of the Borrower so long as no Default shall have occurred and be
continuing (such approval not to be unreasonably withheld or delayed). If no such successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the "Removal
Effective Date"), then such removal shall nonetheless become effective in accordance with such
notice on the Removal Effective Date.
(c) With effect from the Resignation Effective Date or the Removal Effective Date
(as applicable) (l) the retiring or removed Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents and (2) except for any
indemnity payments owed to the retiring or removed Administrative Agent, all payments,
communications and determinations provided to be made by, to or through the Administrative
Agent shall instead be made by or to the Swingline Lender, each Lender and each LC Issuing
Bank directly, until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided for above. Upon the acceptance of a successor's appointment
as Administrative Agent hereunder, such successor shall succeed to and become vested with all
of the rights, powers, privileges and duties of the retiring or removed Administrative Agent
(other than any rights to indemnity payments owed to the retiring or removed Administrative
Agent), and the retiring or removed Administrative Agent shall be discharged from all of its
duties and obligations hereunder, under the other Loan Documents or under the Related
Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the
same as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring or removed Administrative Agent's resignation or removal
hereunder, under the other Loan Documents and under the Related Documents, the provisions of
this Article and Section 8.04 shall continue in effect for the benefit of such retiring or removed
Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring or removed Administrative Agent
was acting as Administrative Agent.
(d) Notwithstanding anything in this Section 7.05 to the contrary, the retiring or
removed Administrative Agent shall continue to hold any collateral (including cash collateral
and collateral held under any Pledge Agreement) as bailee for the benefit of the LC Issuing
Banks and the Lenders until a successor Administrative Agent has been appointed in accordance
with this Section 7.05.
SECTION 7.06. Non-Reliance on Administrative Agent and Other Lenders.
Each Lender and LC Issuing Bank acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their Related Parties 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 Lender and LC Issuing Bank also
acknowledges that it will, independently and without reliance upon the Administrative Agent or
any other Lender or any of their Related Parties and based on such documents and information as
it shall from time to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document, any Related
Document or any related agreement or any document furnished hereunder or thereunder.
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SECTION 7.07. IndemniJicotion.
Each Lender severally agrees to indemnifl, the Administrative Agent (to the extent not
promptly reimbursed by the Borrower and without limiting its obligation to do so) from and
against such Lender's Commitment Percentage of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the Administrative
Agent in any way relating to or arising out of this Agreement, any other Loan Document or any
Related Document or any action taken or omitted by the Administrative Agent under this
Agreement, any other Loan Document or any Related Document; provided, however, that no
Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative
Agent's gross negligence or willful misconduct, as proven in a court of competent jurisdiction by
final and nonappealable judgment. Without limitation of the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for its Commitment Percentage of
any costs and expenses (including, without limitation, fees and reasonable expenses of counsel)
payable by the Borrower under Section 8.04, to the extent that the Administrative Agent is not
promptly reimbursed for such costs and expenses by the Borrower (and without limiting its
obligation to do so) after request therefor. The failure of any Lender to reimburse the
Administrative Agent promptly upon demand for its Commitment Percentage of any amount
required to be paid by the Lender to the Administrative Agent as provided herein shall not
relieve any other Lender of its obligation hereunder to reimburse the Administrative Agent for its
Commitment Percentage of such amount, but no Lender shall be responsible for the failure of
any other Lender to reimburse the Administrative Agent for such other Lender's Commitment
Percentage of such amount. Without prejudice to the survival of any other agreement of any
Lender hereunder, the agreement and obligations of each Lender contained in this Section 7.07
shall survive the payment in full of principal, interest and all other amounts payable hereunder.
SECTION 7.08. No Other Duties, etc.
Anything herein to the contrary notwithstanding, none of the Global Coordinator, the
Joint Lead Arrangers, the Syndication Agents or the Documentation Agents listed on the cover
page hereof shall have any powers, duties or responsibilities under this Agreement, any other
Loan Document or any Related Document, except in its capacity, as applicable, as the
Administrative Agent, a Lender or an LC Issuing Bank hereunder or thereunder.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.
Subject to Section 2.21(a)(i), no amendment or waiver of any provision of this
Agreement, nor consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Required Lenders and the
Borrower, and then such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that, no amendment, waiver or consent
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shall, unless in writing and signed by each Lender directly affected thereby (other than, in the
case of clause (i), (v) or (vi) below, any Defaulting Lender), do any of the following: (i) amend
Section 3.01,3.02 or 3.03 or waive any of the conditions specified therein, (ii) increase the
Commitment of any Lender or extend the Commitments (except pursuant to Section 2-06 or
2.07), (iii) reduce the principal of, or interest on, or rate of interest applicable to, the outstanding
Loans or any fees or other amounts payable hereunder, (iv) postpone any date fixed for any
payment of principal of, or interest on, the outstanding Loans, reimbursement obligations or any
fees or other amounts payable hereunder, (v) change the definition of Required Lenders or
change the percentage of the Commitments or of the aggregate unpaid principal amount of the
outstanding Borrowings, or the number or the percentage of Lenders, that shall be required for
the Lenders or any of them to take any action hereunder, or (vi) amend or waive this Section 8.01
or any provision of this Agreement that requires pro rata treatment of the Lenders; and provided
further that (x) no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent, the Swingline Lender or any LC Issuing Bank in addition to the Lenders
required above to take such action, affect the rights or duties of the Administrative Agent, the
Swingline Lender or such LC Issuing Bank, as the case may be, under this Agreement, and (y)
no amendment, waiver or consent shall, unless in writing and signed by the Administrative
Agent, the Swingline Lender, each LC Issuing Bank and the Required Lenders, amend or waive
Section 2.21. Notwithstanding the foregoing, any provision of this Agreement may be amended
by an agreement in writing entered into by the Borrower, the Required Lenders and the
Administrative Agent if by the terms of such agreement the Commitment of each Lender and the
obligations of each LC Issuing Bank not consenting to the amendment provided for therein shall
terminate (but such Lender or LC Issuing Bank shall continue to be entitled to the benefits of
Sections 2.15,2.18 and 8.04) upon the effectiveness of such amendment.
SECTION 8.02. Notices, Etc.
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below),
all notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent by
facsimile as follows:
(i) if to the Borrower, to it at 825 N.E. Multnomah Street, Suite 1900,
Portland, Oregon 97232-4116, Attention: Bruce N. Williams, Vice President and
Treasurer (Facsimile No.: [phone]; Telephone No. [phone]);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A. at 500
Stanton Christiana Road, Ops 2, Floor 03, Newark, Delaware, 19713-2107, Attention:
Gregory Hutchins (Facsimile No. [phone]; Telephone No. [phone];
Email: [e-mail]), with a copy to 383 Madison Avenue, Floor 24,
New York, New York, 10179, Attention: Juan Javellana (Facsimile No. [phone];
Email : j uan j j [e-mail]);
(iii) if to any LC Issuing Bank identified on Schedule II hereto, at the address
specified opposite its name on Schedule II hereto, and if to any other LC Issuing Bank, at
7l
such address as shall be designated by such LC Issuing Bank in a written notice to the
Administrative Agent and the Borrower;
(iv) if to any Initial Lender, at its Domestic Lending Office specified opposite
its name on Schedule I hereto, and if to any other Lender (including the Swingline
Lender), at its Domestic Lending Office specified in the Assignment and Assumption
pursuant to which it became a Lender.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by facsimile shall be deemed to have
been given when sent (except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications, to the extent provided in
subsection (b) below, shall be effective as provided in said subsection (b).
(b) Electronic Communications. Notices and other communications to the
Swingline Lender, the Lenders and the Issuing Banks hereunder may be delivered or furnished
by electronic communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing shall not apply to
notices to the Swingline Lender, any Lender or any LC Issuing Bank pursuant to Section 2.02,
2.03 or 2.04 if the Swingline Lender, such Lender or such Issuing Bank, as applicable, has
notified the Administrative Agent that it is incapable of receiving notices under such Section by
electronic communication. The Administrative Agent or the Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such procedures may be limited
to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender's receipt of
an acknowledgement from the intended recipient (such as by the "return receipt requested"
function, as available, return e-mail or other written acknowledgement), and (ii) notices or
communications posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient, at its e-mail address as described in the foregoing
clause (i), of notification that such notice or communication is available and identi$,ing the
website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email
or other communication is not sent during the normal business hours of the recipient, such notice
or communication shall be deemed to have been sent at the opening of business on the next
business day for the recipient.
(c) Change of Address, etc. Any party hereto may change its address or facsimile
number for notices and other communications hereunder by notice to the other parties hereto.
(d) Platfurm.
(i) The Borrower agrees that the Administrative Agent may, but shall not be
obligated to, make the Communications (as defined below) available to the LC Issuing
Banks and the other Lenders by posting the Communications on Debt Domain, Intralinks,
Syndtrak or a substantially similar electronic transmission system (the "Platform").
(ii) The Platform is provided "as is" and "as available." The Agent Parties (as
defined below) do not warrant the adequacy of the Platform and expressly disclaim
liability for errors or omissions in the Communications. No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third-parly rights or
freedom from viruses or other code defects, is made by any Agent Party in connection
with the Communications or the Platform. In no event shall the Administrative Agent or
any of its Related Parties (collectively, the "Agent Porties") have any liability to the
Borrower, any Lender or any other Person or entity for damages of any kind, including,
without limitation, direct or indirect, special, incidental or consequential damages, losses
or expenses (whether in tort, contract or otherwise) arising out of the Borrower's orthe
Administrative Agent's transmission of communications through the Platform except to
the extent that such damages are found in a judgment by a court of competent jurisdiction
by final and nonappealable judgment to have resulted from such Agent Party's gross
negligence or willful misconduct. "Communications" means, collectively, any notice,
demand, communication, information, document or other material provided by or on
behalf of the Borrower pursuant to any Loan Document or the transactions contemplated
therein which is distributed to the Administrative Agent, the Swingline Lender, any
Lender or any LC Issuing Bank by means of electronic communications pursuant to this
Section, including through the Platform.
SECTION 8.03. No Waiver; Remedies.
No failure on the part of any Lender or the Administrative Agent to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise ofany such right preclude any other or further exercise thereofor the exercise of
any other right. The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 8.04. Costs and Expenses; Indemnijication.
(a) The Borrower agrees to pay promptly upon demand (i) all reasonable out-of-
pocket costs and expenses of the Administrative Agent and its Affiliates in connection with the
preparation, negotiation, execution, delivery, administration, modification and amendment of this
Agreement and the other documents to be delivered hereunder, including, without limitation, (A)
all due diligence, syndication (including printing, distribution and bank meetings), transportation,
computer, duplication, appraisal, consultant, and audit expenses and (B) the reasonable fees and
expenses of counsel for the Administrative Agent with respect thereto and with respect to
advising the Administrative Agent as to its rights and responsibilities under this Agreement, and
(ii) all reasonable out-of-pocket expenses incurred by any LC Issuing Bank in connection with
the issuance, amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder. The Borrower further agrees to pay promptly upon demand all reasonable
costs and expenses of the Administrative Agent, the Swingline Lender, the Lenders and the LC
Issuing Banks, if any, (A) in connection with the enforcement (whether through negotiations,
4al)
legal proceedings or otherwise) of this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued
hereunder, including all such reasonable out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit, including, without
limitation, reasonable fees and expenses of counsel for the Administrative Agent, the Swingline
Lender, the Lenders and the LC Issuing Banks in connection with the enforcement of rights
under this Section 8.0a(a).
(b) The Borrower shall indemniff the Administrative Agent (and any sub-agent
thereof), the Swingline Lender, each Lender and each LC Issuing Bank, and each Related Party
of any of the foregoing Persons (each, an "IndemniJied Party") from and against any and all
claims, damages, losses and liabilities, joint or several, to which any such Indemnified Party may
become subject, in each case arising out of or in connection with or relating to (including,
without limitation, in connection with any investigation, litigation or proceeding or preparation
of a defense in connection therewith) this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Extensions of Credit, and shall
reimburse any Indemnified Party for any and all reasonable expenses (including, without
limitation, reasonable fees and expenses of counsel) as they are incurred in connection with the
investigation ofor preparation for or defense ofany pending or threatened claim or any action or
proceeding arising therefrom, whether or not such Indemnified Party is a party (but if not a party
thereto, then only with respect to such proceedings where such Indemnified Party (i) is subject to
legal process or other compulsion of law, (ii) believes in good faith that it will be so subject, or
(iii) believes in good faith that it is necessary or appropriate for it to resist any legal process or
other compulsion of law which is purported to be asserted against it) and whether or not such
claim, action or proceeding is initiated or brought by or on behalf of the Borrower or any of its
Affiliates and whether or not any of the transactions contemplated hereby are consummated or
this Agreement is terminated, except to the extent such claim, damage, loss, liability or expense
is found in a judgment by a court of competent jurisdiction by final and nonappealable judgment
to have resulted from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity in this Section
8.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, shareholders or creditors or an Indemnified
Party or any other Person or any Indemnified Party is otherwise a party thereto and whether or
not the transactions contemplated hereby are consummated. The Borrower agrees not to assert
any claim against the Administrative Agent, any Lender, any of their respective Affiliates, or any
of their respective directors, officers, employees, attorneys and agents, on any theory of liability,
for special, indirect, consequential or punitive damages arising out of or otherwise relating to this
Agreement, any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Extensions of Credit. This Section 8.04(b) shall not apply with respect to Taxes
that are Indemnified Taxes, Excluded Taxes or Taxes that are covered by Section 2.1s(aXii).
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate Revolving
Loan is made by the Borrower to or for the account of a Lender other than on the last day of the
Interest Period for such Revolving Loan, as a result of a payment or Conversion pursuant to
Section 2.06(c),2.07(c),2.09,2J2(b),2.13,2.14,2.15 or 2.16, acceleration of the maturity of
the outstanding Borrowings pursuant to Section 6.01, assignment to another Lender upon
demand of the Borrower pursuant to Section 2.20(b) or for any other reason (in the case of any
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such payment or Conversion), the Borrower shall, promptly upon demand by such Lender (with
a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss (other than loss of Applicable Margin), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Loan.
(d) Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in Sections 2.76,2.19 and
8.04 shall survive the payment in full of principal, interest and all other amounts payable
hereunder.
(e) The Borrower agrees that no Indemnified Party shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to the Borrower or its respective security
holders or creditors related to or arising out of or in connection with this Agreement, the
Extensions of Credit or the use or proposed use of the proceeds thereof, any of the transactions
contemplated by any of the foregoing or in the loan documentation and the performance by an
Indemnified Party by any of the foregoing except to the extent that any loss, claim, damage,
liability or expense is found in a judgment by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from such Indemnified Party's gross negligence or
willful misconduct.
(0 In the event that an Indemnified Party is requested or required to appear as a
witness in any action brought by or on behalf of or against the Borrower or any of its Affiliates
in which such Indemnified Party is not named as a defendant, the Borrower agrees to reimburse
such Indemnified Party for all reasonable expenses incurred by it in connection with such
Indemnified Party's appearing and preparing to appear as such a witness, including, without
limitation, the fees and disbursements of its legal counsel.
SECTION 8.05. Risht of Set-off,
Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the
making of the request or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the outstanding Borrowings due and payable pursuant to the
provisions of Section 6.01, each Lender, each LC Issuing Bank, the Swingline Lender and each
of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest
extent permitted by Applicable Law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency) at any time held, and other
obligations (in whatever currency) at any time owing, by such Lender, such LC Issuing Bank, the
Swingline Lender or any such Affiliate, to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter existing under this
Agreement or any other Loan Document to such Lender, such LC Issuing Bank or the Swingline
Lender or their respective Affiliates, irrespective of whether or not such Lender, such LC Issuing
Bank, the Swingline Lender or such Affiliate shall have made any demand under this Agreement
or any other Loan Document and although such obligations of the Borrower may be contingent
or unmatured or are owed to a branch, office or Affiliate of such Lender, such LC Issuing Bank
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or the Swingline Lender different from the branch, office or Affiliate holding such deposit or
obligated on such indebtedness; provided that in the event that any Defaulting Lender shall
exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the provisions of Section 2.21
and, pending such payment, shall be segregated by such Defaulting Lender from its other funds
and deemed held in trust for the benefit of the Administrative Agent, the Swingline Lender, the
LC Issuing Banks, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the
Administrative Agent a statement describing in reasonable detail the obligations of the Borrower
owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each
Lender, each LC Issuing Bank, the Swingline Lender and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of setoff) that such
Lender, such LC Issuing Bank, the Swingline Lender or their respective Affiliates may have.
Each Lender, each LC Issuing Bank and the Swingline Lender agrees to notiff the Borrower and
the Administrative Agent promptly after any such setoff and application; provided that the
failure to give such notice shall not affect the validity of such setoff and application.
SECTION 8.06. Binding Effect.
This Agreement shall become effective when it shall have been executed by the Borrower
and the Administrative Agent and when the Administrative Agent shall have been notified by
each Initial Lender that such Initial Lender has executed it and thereafter shall be binding upon
and inure to the benefit of the Borrower, the Administrative Agent, the Swingline Lender, each
Lender and each LC Issuing Bank (upon its appointment pursuant to Section 2.04) and their
respective successors and assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of all of the Lenders.
SECTION 8.07. Assignments and Participations.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of the Administrative Agent,
the Swingline Lender, each Lender and each LC Issuing Bank, and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of subsection (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null and void). Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any Person (other
than the parties hereto, their respective successors and assigns permitted hereby, Participants to
the extent provided in subsection (d) of this Section and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Swingline Lender, the LC
Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason
of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
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portion of its Commitment and the Loans at the time owing to it); provided that any such
assignment shall be subject to the following conditions:
(i) MinimumAmounts.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and/or the Loans at the time owing to it or
contemporaneous assignments to related Approved Funds that equal at least the
amount specified in subsection (bXi)(B) of this Section in the aggregate or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund,
no minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if "Trade
Date" is specified in the Assignment and Assumption, as of the Trade Date) shall
not be less than $5,000,000, or an integral multiple of $1,000,000 in excess
thereof, unless each of the Administrative Agent and, so long as no Default has
occurred and is continuing, the Borrower otherwise consents (each such consent
not to be unreasonably withheld or delayed).
(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement with respe0t to the Loan or the Commitment assigned.
(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (x) an Event of Default has occurred
and is continuing at the time of such assignment, or (y) such assignment is to a
Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower
shall be deemed to have consented to any such assignment unless it shall object
thereto by written notice to the Administrative Agent within ten Business Days
after having received notice thereof;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments if such
assignment is to a Person that is not a Lender with a Commitment, an Affiliate of
such Lender or an Approved Fund; and
(C) the consent of each LC Issuing Bank and Swingline Lender shall
be required for any assignment.
77
(iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500; provided that the Administrative Agent
may, in its sole discretion, elect to waive such processing and recordation fee in the case
of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made to
(A) the Borrower or any of the Borrower's Affiliates (except for any Affiliate of
Berkshire Hathaway not controlled directly or indirectly by the Borrower that is a
commercial lender acquiring rights and obligations under this Agreement in the ordinary
course of its business) or Subsidiaries or (B) to any Defaulting Lender or any of its
Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute
any of the foregoing Persons described in this clause (B).
(vi) No Assignment to Natural Persozs. No such assignment shall be made to
a natural Person.
(vii) Certain Additional Payments. In connection with any assignment of
rights and obligations of any Defaulting Lender hereunder, no such assignment shall be
effective unless and until, in addition to the other conditions thereto set forth herein, the
parties to the assignment shall make such additional payments to the Administrative
Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which
may be outright payment, purchases by the assignee of participations or
subparticipations, or other compensating actions, including funding, with the consent of
the Borrower and the Administrative Agent, the applicable pro rata share of Loans
previously requested but not funded by the Defaulting Lender, to each of which the
applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisff in
full all payment liabilities then owed by such Defaulting Lender to the Administrative
Agent, each LC Issuing Bank, each Swingline Lender and each other Lender hereunder
(and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata
share of all Loans and participations in Letters of Credit and Swingline Loans in
accordance with its Commitment Percentage. Notwithstanding the foregoing, in the
event that any assignment of rights and obligations of any Defaulting Lender hereunder
shall become effective under Applicable Law without compliance with the provisions of
this subsection, then the assignee of such interest shall be deemed to be a Defaulting
Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection
(c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under
this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to be a party
hereto) but shall continue to be entitled to the benefits of Sections 2.15, 2.18 and 8.04 with
78
respect to facts and circumstances occurring prior to the effective date of such assignment;
provided, that except to the extent otherwise expressly agreed by the affected parties, no
assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party
hereunder arising from that Lender's having been a Defaulting Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as a non-
fiduciary agent of the Borrower, shall maintain at its address referred to in Section 8.02 a copy of
each Assignment and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments and Termination Date of, and principal
amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof
from time to time (the "Registef'). The entries in the Register shall be conclusive absent
manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement. The Register shall be available for inspection by
the Borrower, the Swingline Lender, any LC Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
Person or the Borrower or any of the Borrower's Affiliates (except for any Affiliate of Berkshire
Hathaway not controlled directly or indirectly by the Borrower that is a commercial lender
acquiring participations under this Agreement in the ordinary course of its business) or
Subsidiaries) (each, a"Participant") in all or a portion of such Lender's rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the Loans owing to
it); provided that (i) such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations, and (iii) the Borrower, the Administrative Agent, the LC Issuing Banks and
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations underthis Agreement. Forthe avoidance of doubt, each Lender
shall be responsible for the indemnity under Section 7.07 with respect to any payments made by
such Lender to its Participant(s).
Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in Section 8.01 requiring
the consent of each Lender directly affected thereby that directly affects such Participant. The
Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15,2.18 and
8.0a(c) (subject to the requirements and limitations therein, including the requirements under
Section 2.18(g) (it being understood that the documentation required under Section 2.18(g) shall
be delivered to the participating Lender or the applicable Withholding Agent to the extent
required by Applicable Law)) to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this Section; provided that such Participant
79
(A) agrees to be subject to the provisions of Section 2.20 as if it were an assignee under
subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment under
Section 2.15 or 2.18, with respect to any participation, than its participating Lender would have
been entitled to receive. Each Lender that sells a participation agrees, at the Borrower's request
and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the
provisions of Section 2.20(b) with respect to any Participant. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 8.05 as though it were a Lender;
provided that such Participant agrees to be subject to Section 2.19 as though it were a Lender.
Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent
of the Borrower, maintain a register on which it enters the name and address of each Participant
and the principal amounts (and stated interest) of each Participant's interest in the Loans or other
obligations under the Loan Documents (the "Participant Regisler"); provided that no Lender
shall have any obligation to disclose all or any portion of the Participant Register (including the
identity of any Participant or any information relating to a Participant's interest in any
commitments, loans, letters of credit or its other obligations under any Loan Document) to any
Person except to the extent that such disclosure is necessary to establish that such commitment,
loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the
United States Treasury Regulations or to comply with other requirements under applicable tax
law. The entries in the Participant Register shall be conclusive absent manifest error, and such
Lender shall treat each Person whose name is recorded in the Participant Register as the owner of
such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent)
shall have no responsibility for maintaining a Participant Register.
(e) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve Bank or any other
central banking authority; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 8.08. Contidentiality.
Neither the Administrative Agent nor any Lender shall disclose any Confidential
Information to any other Person without the consent of the Borrower, other than (i) to the
Administrative Agent's or such Lender's Affiliates and their officers, directors, employees,
agents and advisors, to the Administrative Agent or a Lender and, as contemplated by Section
8.07, to actual or prospective assignees and participants, and then only on a confidential basis,
(ii) as required by any law, rule or regulation or judicial process, (iii) to any rating agency when
required by it,provided,that, prior to any such disclosure, such rating agency, commercial paper
dealer or provider shall undertake to preserve the confidentiality of any Confidential Information
received by it from such Lender, (iv) as requested or required by any state, federal or foreign
authority or examiner regulating banks, banking or other financial institutions, (v) to any direct,
indirect, actual or prospective counterparty (and its advisor) to any swap, derivative or
securitization transaction related to the obligations under this Agreement on a confidential basis,
(vi) to any credit insurance provider relating to the Borrower and its obligations on a confidential
basis and (vi) pursuant to a request or requirement from a regulatory authority (govemmental or
80
non-governmental self-regulatory authority) having jurisdiction over a Lender; provided that
unless prohibited by Applicable Law, each Lender and the Administrative Agent agree, prior to
disclosure thereof, to notiff the Borrower of any request for disclosure of any such Confidential
Information (x) by any Governmental Authority or representative thereof (other than any such
request in connection with an examination of such Lender or the Administrative Agent by such
Governmental Authority) or (y) pursuant to legal process.
SECTION 8.09. Governing Low.
EACH LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-I4OI OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD
REQUIRE APPLICATION OF ANOTHER LAW.
SECTION 8.10. Severability.
In the event any one or more of the provisions contained in this Agreement should be
held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected or impaired hereby.
SECTION 8.11. Execution in Counterports,
This Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Agreement by telecopier or other electronic
transmission shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 8.12. Jurisdiction, Ete
(a) Each party hereto hereby irrevocably and unconditionally agrees that it will not
commence any action, litigation or proceeding of any kind or description, whether in law or
equity, whether in contract or in tort or otherwise, against the Administrative Agent, the
Swingline Lender, any Lender, any LC Issuing Bank, or any Related Party of the foregoing in
any way relating to this Agreement or any other Loan Document or the transactions relating
hereto or thereto, in any forum other than the courts of the State of New York sifting in the
Borough of Manhattan in New York City, and of the United States District Court of the Southern
District of New York sitting in the Borough of Manhattan in New York City, and any appellate
court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to
the jurisdiction of such courts and agrees that all claims in respect of any such action, litigation
or proceeding may be heard and determined in such New York State court or, to the fullest extent
permitted by applicable law, in such federal court. Each party hereto agrees that a hnal judgment
in any such action, litigation or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(b) The Borrower irrevocably and unconditionally waives, to the fullest extent
permitted by Applicable Law, any objection that it may now or hereafter have to the laying of
8l
venue of any action or proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (a) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Each party hereto irrevocably consents to service of process in the manner
provided for notices in Section 8.02. Nothing in this Agreement will affect the right of any party
hereto to serve process in any other manner permitted by Applicable Law.
SECTION 8.13. Waiver of Jury Trial.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY AzuSING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
oN CONTRACT, TORT OR ANy OTHER THEORY) OR THE ACTTONS OF THE
ADMINISTRATIVE AGENT, THE SWINGLINE LENDER, ANY LC ISSUING BANK, THE
BORROWER OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF. TO THE EXTENT THEY MAY
LEGALLY DO SO, BORROWER, THE ADMINISTRATIVE AGENT, THE SWINGLINE
LENDER, THE LC ISSUING BANKS AND THE LENDERS HEREBY AGREE THAT ANY
SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDTNG SHALL BE
DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR
PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY. EACH
PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER TNTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFTCATIONS IN THIS SECTION.
SECTION 8.14. USA Patriot Act.
Each Lender that is subject to the Patriot Act and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law as of October26,2001)) (as
amended, restated, modified or otherwise supplemented from time to time, the "Potriot Acf'), it
is required to obtain, veriff and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information that will allow
such Lender or the Administrative Agent, as applicable, to identiff the Borower in accordance
with the Patriot Act. The Borrower shall, and shall cause each of its Subsidiaries to, provide to
the extent commercially reasonable, such information and take such actions as are reasonably
82
requested by the Administrative Agent or any Lender in order to assist the Administrative Agent
and the Lenders in maintaining compliance with the Patriot Act.
SECTION 8.15. No Fiduciary Duty.
The Credit Parties and their respective Affiliates (collectively, solely for purposes of this
Section, the oolender Parties"), may have economic interests that conflict with those of the
Borrower, its securities holders and/or their Affiliates. The Borrower agrees that nothing in the
Loan Documents or the Related Documents will be deemed to create an advisory, fiduciary or
agency relationship or fiduciary or other implied duty between any Lender Party, on the one
hand, and the Borrower, its securities holders or its Affiliates, on the other hand. The Borrower
acknowledges and agrees that (i) the transactions contemplated by the Loan Documents and the
Related Documents (including the exercise of rights and remedies hereunder and thereunder) are
arm's-length commercial transactions between the Lender Parties, on the one hand, and the
Borrower, on the other, and (ii) in connection therewith and with the process leading thereto, (x)
no Lender Party has assumed an advisory or fiduciary responsibility in favor of the Borrower, its
securities holders or its Affiliates with respect to the transactions contemplated hereby (or the
exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of
whether any Lender Party has advised, is currently advising or will advise the Borrower, its
securities holders or its Affiliates on other matters), and (y) each Lender Party is acting solely as
principal hereunder and under the other Loan Documents and the Related Documents and not as
the agent or fiduciary of the Borrower, its management, securities holders or creditors. The
Borrower acknowledges and agrees that it has consulted its own legal and financial advisors to
the extent it deemed appropriate and that it is responsible for making its own independent
judgment with respect to such transactions and the process leading thereto. The Borrower agrees
that it will not claim that any Lender Party has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Borrower, in connection with the transactions
contemplated by the Loan Documents or the Related Documents or the process leading thereto.
SECTION 8.16. Waiver of Notice of Termination of Existing Credit Agreement.
Each of the Lenders party hereto that is party to the Existing Credit Agreement, in its
capacity as a "Lender" under the Existing Credit Agreement, hereby waives as of the date hereof
the notice requirement under Section 2.10 of the Existing Credit Agreement for three Domestic
Business Days' (as defined in the Existing Credit Agreement) prior notification of termination of
the commitments thereunder.
[Remainder of page intentionally left blank.]
s-1
PACIFICORP,
as Borrower
"r4L*- d u*tdr----
Bruce N. Williams
Vice President and Treasurer
Signature Page to PacifiCorp Credit Agreement
SA
JPMORGAN CHASI BANK N,A.,
as Administrative Agcnt, Swingline Leader
and Lender
By
NamU: Juan Jaldllana
*tgnaturc ?*ge t* ?aoi'frCo$ CMrit Agwmafil
LEITTDERS:
TITE ROYAL BAIIK OF SCOTLAI\ID PLC
By
Vice President
Signatue- Page to PacifiCorp Credit Agreem€ril
s-4
UNION BAIII(, N.A.
Title: Assistant Vice President
Signature Page to PacifiCorp Credit AgrcEtnent
s-5
B.ARELAYS BANK Ptg
,*.- 3i
^i i',n i .,-\Bv 't tU].r^,** i\ i.,,,,*;. )
Name: Alicia Borys '
Title: Viee Prgsident
$igrature Fagc to FacifiCorp Credit Agreement
s-e
Wells Y*gt Bank, N.A.
By
Title: Assistant Vice President
Sig.naLvr e ?'age ta P trcillCory Credit Agrcement
US Bank, National Association
By
H. Williams
Title: Assistant Vice President
Sigrature Page to PacifiCorp Credit Agreement
s-8
COBANK, ACB
Josh Bat.chelder
Vice President
Signarurc Pagc to Pacili(.'o4: Crcdit Agreemcnl
BNP Paribas,'),"W"fu/
Name:
Title:
Name:
Title:
PasqualeA. Penagllail
Vlco Praldat
Signature Pogc to PacifiCorp Crcdit Agreement
s-10
crnBAI\rLN.A.
By
Yice President
Name:
Title:
Siguatur* Page to Papificorp Credh Agreemcnt
RoyalBankof Canada
By rhl. 8. l-I{rt--^*-
NanrB: Kyle E. Hoffinan
Title: Authorized Signatory
Signatrre Pagc to PacifiCorp Crcdit Agreemcnt
s-12
Mizuho Corporate llfnk, Ltd.
By
Name: Leon Mo
Title: Authorized Signdory
Sigrature Page to PacifiCorp Credit Agrecment
s-13
NATIONAL COOPERATTVE SERVICES
coRPoRATrON,
as Lender,
Signaturc Page to PacifiCorp Credit Agreuncnt
Richard IC
s-14
The Bank of New York Mellon
By
Signature Page to PacifiCorp Credit Agroeurent
s--1t
The Brnk of Novs Scotia
By
Signaturc Page lo Par;ifiCorp Cldit Agrecmcnt
s-10
Sumitomo Mitsui Banking Corporation
By
Title: Managing Director
Signature Page to PacifiCorp Credit Agrcemenl
JUN ?6 ?AI? ITzZI FR DEUTSCHE BHNK ?l? 737 44?A T0 316464833314 P.El
DEUTSCHE
S-g
BAI{K AG NEW YORI( BRANCH
rrhByName: Philippe SandmeierTitle: ManagiDg Director
Sigr*ruro Pagc to PacifiCorp Crrdit Agrocment
s-Ig
CANAI}IAN IMPERIAL BA}IK OF
colr{MERcE, NEW YORK AGENCY
Name: Robert Casey
Authorized Signatory
Signature Pagc to PacifiCorp Crcdit Agreemcnr
S-p
KE
By
Senior Vice President
Signature Page to PacifiCorp Credit Agreement
s-29
LLOYDS TSB BANK PLC, as Lender
By
,, {4, , q (//u rA
Name: Karen Weich
Title: Vice President - W011
: Julia R. Franklinl
Vice President - F014
SignaUre Page to PacifiCorp CreditAgreement
s-21
PNC BAI\K NATIONAL ASSOCIATION
By
Hinard
ior Vice President
Signahre Page to PacifiCorp Crcdit Agreemeat
EXHIBIT A
(to the Credit Agreement)
FORM OF NOTICE OF BORROWING
JPMorgan Chase Bank, N.A., as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
Attention: Agency Group
IDate]
Ladies and Gentlemen:
The undersigned, PacifiCorp, refers to the Credit Agreement, dated as of June 28,2012
(as amended or modified from time to time, the "Credit Agreement " the terms defined therein
being used herein as therein defined), among the undersigned, certain Lenders and LC Issuing
Banks party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent and as Swingline
Lender, and hereby gives you notice, irrevocably, pursuant to Section 2.02(a) of the Credit
Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in
that connection sets forth below the information relating to such Borrowing (the "Proposed
Borrowing!') as required by Section2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
20-.
(ii) The Type of Loans comprising the Proposed Borrowing is [Base Rate
Loansl [Eurodollar Rate Revolving Loans].
(iii) The aggregate amount of the Proposed Borrowing IS
[(iv) The initial Interest Period for each Eurodollar Rate Revolving Loan made
as part of the Proposed Borrowing is monthIs].1
The undersigned hereby cerlifies that the following statements are true on the date hereof,
and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 of the Credit
Agreement (other than the representations and warranties in the first sentence of
Section4.0l(g), in Section4.0l(i) and in the first sentence of Section a.Ol(n)) are true
and correct in all material respects on and as of the date hereof, before and after giving
effect to the Proposed Borrowing and to the application of the proceeds therefrom, as
though made on the date hereof; and
A-2
(B) no event has occurred and is continuing, or would result from the
Proposed Borrowing or from the application of the proceeds therefrom, that constitutes a
Default.
Very truly yours,
PACIFICORP
Name:
Title:
EXHIBIT B
(to the Credit Agreement)
FORM OT REQUEST FOR ISSUANCE
JPMorgan Chase Bank, N.A., as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
Attention: Letter of Credit Department
[ ], as LC Issuing Bank
[Date]
Ladies and Gentlemen:
The undersigned, PacifiCorp, refers to the Credit Agreement, dated as of June 28,2012
(as amended or modified from time to time, the *Credit Agreement " the terms defined therein
being used herein as therein defined), among the undersigned, certain Lenders and LC Issuing
Banks party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent and as Swingline
Lender, and hereby gives you notice pursuant to Section 2.04(a) of the Credit Agreement that the
undersigned hereby requests the issuance of a Letter of Credit (the "Requested Letter of Credif')
in accordance with the following terms:
(i) the LC Issuing Bank is
(ii) the requested date of [issuance] [extension] [modification]Iamendment]
of the Requested Letter of Credit (which is a Business Day) is
(iii) the expiration date of the Requested Letter of Credit requested hereby is
.l
(v)
an address at
(iv) the proposed stated amount of the Requested Letter of Credit is)
the beneficiary of the Requested Letter of Credit is
; and
; and
(vii) any other additional conditions are as follows:
Date may not be later than the fifth Business Day preceding the Termination Date.
Must be minimum of $100,000.
(vi) the conditions under which a drawing may
Letter of Credit are as follows:
, with
be made under the Requested
B-2
The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the [issuance] [extension] [modification] [amendment] of the
Requested Letter of Credit:
(A) the representations and warranties contained in Section 4.01 of the Credit (other
than the representations and warranties in the first sentence of Section 4.01(g), in Section 4.01(i)
and in the first sentence of Section a.Ol(n)) are true and correct in all material respects on and as
of the date hereof, before and after giving effect to the [issuance] [extension] [modification]
[amendment] of the Requested Letter of Credit and to the application of the proceeds therefrom,
as though made on and as of the date hereof; and
(B) no event has occurred and is continuing, or would result from the [issuance]
[extension] [modification] [amendment] of the Requested Letter of Credit or from the application
of the proceeds therefrom, that constitutes a Default.
PACIFICORP
Name:
Title:
Consented to as of the date3
first above written:
INAME OF LETTER OF CREDIT BENEFICIARY]
Name:
Title:
By
By
Necessary only for modification or amendment
EXHIBIT C
(to the Credit Agreement)
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumptioz") is dated
as of the Effective Date set forth below and is entered into by and between [the][each]r Assignor
identified in item I below ([the][each, an) "Assignor") and [the][each]2 Assignee identified in
item 2 below ([the][each, anf "Assignee"). [It is understood and agreed that the rights and
obligations of [the Assignors][the Assignees]3 hereunder are several and not joint.la Capitalized
terms used but not defined herein shall have the meanings given to them in the Credit Agreement
identified below (as amended, the *Credit Agreemenf'), receipt of a copy of which is hereby
acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex
I attached hereto are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and
assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably
purchases and assumes from [the Assignor][the respective Assignors], subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of fthe
Assignor'sl[the respective Assignors'] rights and obligations in [its capacity as a Lender][their
respective capacities as Lenders] under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage interest
identified below of all of such outstanding rights and obligations of [the Assignor][the respective
Assignorsl under the respective facilities identified below (including without limitation any
letters of credit, guarantees, and swingline loans included in such facilities), and (ii) to the extent
permitted to be assigned under applicable law, all claims, suits, causes of action and any other
right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective
capacities as Lenders)] against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any]
Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being refemed to herein
collectively as [the][an) "Assigned Interest"). Each such sale and assignment is without
I For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a
single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose
the second bracketed language.
2 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single
Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the
second bracketed language.
3 Select as appropriate.a Include bracketed language if there are either multiple Assignors or multiple Assignees.
c-2
recourse to [the][any] Assignor and, except as
Assumption, without representation or warranty by
this Assignment and
l. Assignor[s]:
[Assignor [is]
AssigneeIs]:
[is not] a Defaulting Lenderl
[for each Assignee, indicate [Affiliate][Approved Fund] of lidentify Lenderl
3. Borrower(s):PacifiCorp
4.Administrative Agent:JPMorgan Chase Bank, N.A., as the administrative agent under the
Credit Agreement
5. Credit Agreement: The $600,000,000 Credit Agreement dated as of June 28, 2012
among PacifiCorp, the Lenders parties thereto, JPMorgan Chase
Bank, N.A., as Administrative Agent, and the LC Issuing Banks
parties thereto
6. Assigned Interest[s]:
Trade Date:l'o
[Page break]
s List each Assignor, as appropriate.
6 List each Assignee, as appropriate.
' Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned
under this Assignment (e.g., "Revolving Credit Commitment" etc.)
8 Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the
Trade Date and the Effective Date.
e Set forttr, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
'o To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be
determined as of the Trade Date.
expressly provided in
[the][any] Assignor.
2.
17.
AssignorIs]5 Assignee[s]6
Facility
AssignedT
Aggregate Amount of
Commitment/Loans for
all Lenderss
Amount of
Commitment/Loans
Assigned8
Percentage
Assigned of
Commitment/
Loanse
CUSIP
Number
$$%
$$%
$$%
Effective Date:
c-3
-,
20- [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNORISIll
INAME OF ASSTGNOR]
By
Title:
INAME OF ASSTGNOR]
Title:
ASSIGNEEI-SI'2
INAME OF ASSIGNEE]
By
Title:
INAME OF ASSIGNEE]
By
Title:
'r Add additional signature blocks as needed. tnclude both Fund/Pension Plan and manager making the trade (if
applicable).
'' Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if
applicable).
By
c-4
[Consented to and]13 Accepted:
JPMORGAN CHASE BANK, N.A., AS
Administrative Agent
By
Title:
[Consented to:]14
INAME OF RELEVANT PARTY]
By
TitIE:
t3 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.tn To be added only if the consent of the Borrower and/or other parties (e.g. Swingline Lender, LC Issuing Bank) is
required by the terms of the Credit Agreement.
ANNEX I
$600,000,000 Credit Agreement, dated as of June 28, 2012, among PacifiCorp, the Lenders
parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the LC Issuing Banks
parties thereto
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and lVarranties.
1.1 Assignor[sJ. [The][Each] Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such]
Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it
has full power and authority, and has taken all action necessary, to execute and deliver
this Assignment and Assumption and to consummate the transactions contemplated
hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with
respect to (i) any statements, warranties or representations made in or in connection with
the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or
Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the
performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any
other Person of any of their respective obligations under any Loan Document.
1.2. Assignee[sJ. [The][Each] Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and deliver
this Assignment and Assumption and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii) it meets all the
requirements to be an assignee under Section 8.07(bxiii), (v) and (vi) of the Credit
Agreement (subject to such consents, if any, as may be required under Section 8.07(bxiii)
of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the
relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is
sophisticated with respect to decisions to acquire assets of the type represented by the
Assigned lnterest and either it, or the Person exercising discretion in making its decision
to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has
received a copy of the Credit Agreement, and has received or has been accorded the
opportunity to receive copies of the most recent financial statements delivered pursuant to
clauses (i) and (ii) of Section 5.01(h) thereof, as applicable, and such other documents
and information as it deems appropriate to make its own credit analysis and decision to
enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest,
(vi) it has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Assignment and Assumption
and to purchase [the][such] Assigned Interest, and (vii) attached to the Assignment and
Assumption is any documentation required to be delivered by it pursuant to the terms of
the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b)
agrees that (i) it will, independently and without reliance on the Administrative Agent,
[the][any] Assignor or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.
2. Paymenls. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of [the][each] Assigned Interest (including payments of principal, interest,
fees and other amounts) to [the][the relevant] Assignee whether such amounts have accrued prior
to, on or after the Effective Date. The Assignor[s] and the Assignee[s] shall make all appropriate
adjustments in payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves. Notwithstanding the
foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts
paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be
governed by, and construed in accordance with, the law of the State of New York.
EXHIBIT D.l
(to the Credit Agreement)
FORM OF OPINION OF IN.HOUSE COUNSEL FOR THE BORROWER
June28,2012
To each of the Lenders and LC Issuing Banks
party to the Credit Agreement referred to below
and to JPMorgan Chase Bank, N.A., as
Administrative Agent and Swingline Lender thereunder
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(a)(v) of the Credit Agreement, dated as
of June 28, 2012 (the "Credit Agreemenf'), among PacifiCorp (the "Borrower"), the Lenders
and LC Issuing Banks party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent
and Swingline Lender. Terms defined in the Credit Agreement are used herein as therein
defined.
I am an Assistant General Counsel for MidAmerican Energy Holdings Company, indirect parent
of the Borrower, and have acted as counsel to the Borrower in connection with the preparation,
execution and delivery of the Credit Agreement and the other Loan Documents (as defined
below). I am generally familiar with the Borrower's corporate history, properties, operations and
charter (including amendments, restatements and supplements thereto).
In connection with this opinion, I, or attorneys over whom I exercise supervision, have
examined:
(1) The Credit Agreement and the promissory notes issued by the Borrower on the date
hereof in favor of (i) Union Bank, N.A., (ii) U.S. Bank National Association, (iii)
Royal Bank of Canada, (iv) Deutsche Bank AG New York Branch, (v) PNC Bank,
National Association and (vi) CoBank, ACB (collectively, the "Loan Documents").
(2) The documents furnished by the Borrower pursuant to Article III of the Credit
Agreement.
(3) The articles of incorporation of the Borrower.
(4) The bylaws of the Borrower and all amendments thereto.
(5) A certificate of the Secretary of State of Oregon, dated June 20, 2012, attesting to the
continued existence and good standing of the Borrower in that State.
D-t-2
To each of the Lenders, LC Issuing Banks
and JPMorgan Chase Bank, N.A.
June28,2012
Page2
In addition, I, or attorneys over whom I exercise supervision, have examined the originals, or
copies certified to my satisfaction, of such other corporate records of the Borrower, certificates
of public officials and of officers of the Borrower, and agreements, instruments and other
documents, as I have deemed necessary as a basis for the opinions expressed below.
In my examination, I, or attorneys over whom I exercise supervision, have assumed the
genuineness of all signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals and the conformity with the originals of all documents
submitted to us as copies. In making our examination of documents and instruments executed or
to be executed by persons other than the Borrower, I, or attorneys over whom I exercise
supervision, have assumed that each such other person had the requisite power and authority to
enter into and perform fully its obligations thereunder, the due authorization by each such other
person for the execution, delivery and performance thereof and the due execution and delivery
thereof by or on behalf of such person of each such document and instrument. In the case of any
such person that is not a natural person, [, or attorneys over whom I exercise supervision, have
also assumed, insofar as it is relevant to the opinions set forth below, that each such other person
is duly organized, validly existing and in good standing under the laws of the jurisdiction in
which it was created and is duly qualified and in good standing in each other jurisdiction where
the failure to be so qualified could reasonably be expected to have a material effect upon its
ability to execute, deliver and/or perform its obligations under any such document or instrument.
I, or attorneys over whom I exercise supervision, have fuither assumed that each document,
instrument, agreement, record and certificate reviewed by us for purposes of rendering the
opinions expressed below has not been amended by any oral agreement, conduct or course of
dealing between the parties thereto.
As to questions of fact material to the opinions expressed herein, I have relied upon certificates
and representations of officers of the Borrower (including but not limited to those contained in
the Credit Agreement and certificates delivered upon the execution and delivery of the Credit
Agreement) and of appropriate public officials, without independent verification of such maffers
except as otherwise described herein.
Whenever my opinions herein with respect to the existence or absence of facts are stated to be to
my knowledge or awareness, it is intended to signify that no information has come to my
attention or the attention of other counsel working under my direction in connection with the
preparation of this opinion letter that would give me or them actual knowledge of the existence
or absence of such facts. However, except to the extent expressly set forth herein, neither I nor
they have undertaken any independent investigation to determine the existence or absence of
such facts, and no inference as to my or their knowledge of the existence or absence of such facts
should be assumed.
I am admitted to the practice of law in the State of Iowa and do not purport to be expert on the
laws of any jurisdiction other than the laws of the State of Iowa and the Federal laws of the
United States. My opinions expressed below are limited to the laws of the State of Oregon and,
as to the opinions expressed in paragraph 4 below, the laws of the States of Califomia, Idaho,
D-l-3
To each of the Lenders, LC Issuing Banks
and JPMorgan Chase Bank, N.A.
June28,2012
Page 3
Utah, Washington and Wyoming, that are applicable to Borrower as a regulated public utility in
such states, and the Federal law of the United States. In rendering the opinions expressed herein
pertaining to matters relating to laws of the State of Oregon (other than with respect to the
opinion expressed in paragraph 4 below), I have relied upon the attached opinion letter of Jeffery
B. Erb, Esq., Assistant General Counsel to the Borrower and a member of the bar of the State of
Oregon, and whose opinion letter is attached hereto.
Based upon the foregoing and upon such investigation as I have deemed necessary, and subject
to the limitations, qualifications and assumptions set forth herein, I am of the following opinion:
l. The Borrower (a) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Oregon; (b) has the corporate power and
authority to conduct the business in which it is currently engaged and in which it
proposes to be engaged after the date hereof; and (c) is duly qualified as a foreign
corporation and is in good standing under the laws of each jurisdiction where it
conducts material business operations, except any such jurisdiction where the
failure to so qualify could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
The Borrower has the corporate power and authority, and the legal right, to
execute and deliver each Loan Document and to perform its obligations under
each Loan Document. The Borrower has taken all necessary corporate action to
authorize the execution, delivery and performance of each Loan Document and
the incurrence of Advances on the terms and conditions of the Credit Agreement,
and each Loan Document has been duly executed and delivered by the Borrower.
The execution, delivery and performance of each Loan Document will not violate
Applicable Law, the Borrower's articles of incorporation or bylaws, or any
material contractual restriction binding on or affecting the Borrower or any of its
properties.
No approval or authorization or other action by, and no notice to or filing with,
any governmental agency or regulatory body or other third person is required in
connection with the due execution and delivery of any Loan Document and the
performance, validity and enforceability of any Loan Document, other than
Decision 88-04-062 of the Public Utilities Commission of the State of California
dated April 27, 1988; Order No. 32221 of the Idaho Public Utilities Commission
issued April 8, 2011, in Case No. PAC-E-I1-09; Order No. 94-1240 and Order
No. 98-158 of the Public Utility of Commission of Oregon issued August 17,
1994 and April 16, 1998, respectively; Order Establishing Compliance issued
April 8, 1998, in Docket UE-980404, by the Washington Utilities and
Transportation Commission; Order Approving Securities Exemption and
Accepting the Substance and Format of the Quarterly Financing Activity Report
)
J.
4.
D-l-4
To each of the Lenders, LC Issuing Banks
and JPMorgan Chase Bank, N.A.
June28,2012
Page 4
To Be Filed Thereunder issued November 1,2010, in Docket No. 20000-372-EA-
l0 (Record No. 12519), by the Public Service Commission of Wyoming; Report
and Order issued May 10, 2007, in DocketNo.0T-035-16, by the Public Service
Commission of Utah; and Letter Order issued November 29,201l, in Docket No.
ESI l-51-000, by the Federal Energy Regulatory Commission, each of which has
been duly obtained and is in full force and effect.
5. Except as described in Section a.0l(g) of the Credit Agreement, no action, suit,
investigation, litigation, or proceeding, including, without limitation, any
Environmental Action, affecting the Borrower or any of its Material Subsidiaries
before any court, government agency or arbitrator is pending or, to my
knowledge, threatened, that could reasonably be expected to have a Material
Adverse Effect.
6. Neither the Borrower nor any Subsidiary is an "investment company" or a
company "controlled" by an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended.
I express no opinion as to (i) Section 8.05 of the Credit Agreement and (ii) the effect of the law
of any jurisdiction wherein any Lender may be located which limits the rates of interest which
may be charged or collected by such Lender.
This opinion letter has been rendered solely for your benefit in connection with the Credit
Agreement and the transactions contemplated thereby and may not be used, circulated, quoted,
relied upon or otherwise referred to by any other person (other than your respective counsel,
auditors and any regulatory agency having jurisdiction over you or as otherwise required
pursuant to legal process or other requirements of law) for any other purpose without my prior
written consent; provided that, (i) King & Spalding LLP, special counsel for the Administrative
Agent, may rely on the opinions expressed in this opinion letter in connection with the opinion to
be furnished by them in connection with the transactions contemplated by the Credit Agreement
and (ii) any person that becomes a Lender or an LC Issuing Bank after the date hereof may rely
on the opinions expressed in this opinion letter as though addressed to such person. I undertake
no responsibility to update or supplement this opinion in response to changes in law or future
events or circumstances.
Very truly yours,
Paul J. Leighton
Counsel for PacifiCorp
EXHIBIT D.2
(to the Credit Agreement)
FORM OF OPINION OF SPECIAL NEW YORK COUNSEL FOR THE BORROWER
June28,2012
The Lenders listed on Schedule I hereto
and the Administrative Agent party to the
Credit Agreement referred to below
(collectively, the " Lender Parties")
c/o JPMorgan Chase Bank, N.A.,
as Administrative Agent
500 Stanton Christiana Road, Ops 2, Floor 03
Newark, DE,19713-2107
Re: PaciftCorp - Credit Agreement dated as of June 28, 2012
Ladies and Gentlemen:
We have acted as special counsel to PacifiCorp, afl Oregon corporation (the"Compofr!"),
in connection with the Credit Agreement dated as of June 28,2012 (the"Credit Agreement)by
and among the Company, certain lenders (the"Lenders"), and JPMorgan Chase Bank, N.A., as
agent (in such capacity, the *Agenf') and a Lender. Each capitalized term used and not defined
herein has the meaning assigned to that term in the Credit Agreement. This opinion is delivered
pursuant to Section 3.01(a)(vi) of the Credit Agreement.
In rendering this opinion, we have examined the originals, or copies, certified or
otherwise identified to our satisfaction as being true copies, of the following documents and
instruments:
(i) the Credit Agreement, including the Exhibits and Schedules thereto; and
(ii) the Notes dated June 28,2012 (the "Notes") made by the Company payable to
certain Lenders and delivered on the date hereof.
The Credit Agreement and the Notes collectively are referred to herein as the "Financing
Documents."
We have assumed without independent investigation that:
(a) The signatures on all documents examined by us are genuine, all individuals
executing such documents had all requisite legal capacity and competency and were duly
authorized, the documents submitted to us as originals are authentic and the documents
submitted to us as certified or reproduction copies conform to the originals;
The Lender Parties
c/o JPMorgan Chase Bank, N.A.,
as Administrative Agent
June28,2012
Page2
(b) The Company is validly existing and in good standing under the laws of its
jurisdiction of organization, has all requisite powerto execute and deliver each of the Financing
Documents and to perform its obligations thereunder, the execution and delivery of such
Financing Documents by the Company and performance of its obligations thereunder have been
duly authorized,by all necessary corporate or other action and, except as specifically addressed in
our opinions in paragraph 2 below, the execution and delivery of such Financing Documents by
the Company and performance of its obligations thereunder do not violate any law, rule,
regulation, order, judgment or decree applicable to the Company, and such Financing Documents
have been duly executed and delivered by the Company; and
(c) There are no agreements or understandings between or among any of the
parties to the Financing Documents or third parties that would expand, modifu or otherwise
affect the terms of the Financing Documents or the respective rights or obligations of the parties
thereunder.
In rendering this opinion, we have made such inquiries and examined, among other
things, originals or copies, certified or otherwise identified to our satisfaction, of such records,
agreements, certificates, instruments and other documents as we have considered necessary or
appropriate for purposes of this opinion. As to certain factual matters, we have relied to the
extent we deemed appropriate and without independent investigation upon the representations
and warranties of the Company in the Financing Documents, officer's certificates of the
Company delivered pursuant to the Financing Documents or certificates obtained from public
officials and others.
Based upon the foregoing and in reliance thereon, and subject to the qualifications,
exceptions, assumptions and limitations herein contained, we are of the opinion that:
l. Each Financing Document constitutes a legal, valid and binding obligation of
the Company, enforceable against it in accordance with its terms.
2. The execution and delivery by the Company of the Financing Documents, and
performance of its obligations thereunder do not and will not violate, or require any filing with or
approval of any governmental authority or regulatory body of the State of New York or the
United States of America under, any law, rule or regulation of the State of New York or the
United States of America applicable to the Company that, in our experience, is generally
applicable to transactions in the nature of those contemplated by the Financing Documents.
The opinions expressed above are subject to the following additional exceptions,
qualifications, limitations and assumptions:
A. We render no opinion herein as to matters involving the laws of any
jurisdiction other than the State of New York and the United States of America. This opinion is
limited to the effect of the current state of the laws of the State of New York, the United States of
America and the facts as they currently exist. We assume no obligation to revise or supplement
The Lender Parties
c/o JPMorgan Chase Bank, N.A.,
as Administrative Agent
June28,2012
Page 3
this opinion in the event of future changes in such laws or the interpretations thereof or such
facts. We express no opinion regarding (i) the Securities Act of 1933, as amended, the
Investment Company Act of 1940, as amended, or any other federal or state securities laws, rules
or regulations or the effect of any non-compliance therewith or (ii) any federal or state utility or
energy laws, rules or regulations or the effect of any non-compliance therewith.
B. Our opinion in paragraph I is subject to (i) the effect of any bankruptcy,
insolvency, reorganization, moratorium, arrangement or similar laws affecting the rights and
remedies of creditors generally (including, without limitation, the effect of statutory or other
laws regarding fraudulent transfers or preferential transfers or distributions by corporations to
stockholders) and (ii) general principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific
performance, injunctive relief or other equitable remedies regardless of whether enforceability is
considered in a proceeding in equity or at law.
C. We express no opinion regarding the effectiveness of (i) any waiver (whether
or not stated as such) under the Financing Documents of, or any consent thereunder relating to,
unknown future rights or the rights of any party thereto existing, or duties owing to it, as a matter
of law; (ii) any waiver (whether or not stated as such) contained in the Financing Documents of
rights of any party, or duties owing to it, that is broadly or vaguely stated or does not describe the
right or duty purportedly waived with reasonable specificity; (iii) provisions relating to
indemnification, exculpation or contribution, to the extent such provisions may be held
unenforceable as contrary to public policy or federal or state securities laws or due to the
negligence or willful misconduct of the indemnified party; (iv) any agreement to submit to the
jurisdiction of any Federal Court; (v) any provision purporting to establish evidentiary standards;
(vi) any provision to the effect that every right or remedy is cumulative and may be exercised in
addition to any other right or remedy or that the election of some particular remedy does not
preclude recourse to one or more others; or (vii) any right of setoff to the extent asserted by a
participant in the rights of a Lender under the Financing Documents. In addition, we advise you
that some of the provisions of the Financing Documents may not be enforceable by a Lender
acting individually (as opposed to the Lenders acting through the Agent).
This opinion is rendered as of the date hereof to the Lender Parties in connection with the
Financing Documents and may not be relied upon by any person other than the Lender Parties or
by the Lender Parties in any other context. The Lender Parties may not furnish this opinion or
copies hereof to any other person except (i) to bank examiners and other regulatory authorities
should they so request in connection with their normal examinations, (ii) to the independent
auditors and attorneys ofthe Lender Parties, (iii) pursuant to order or legal process ofany court
or governmental agency, (iv) in connection with any legal action to which any Lender Party is a
party arising out of the transactions contemplated by the Financing Documents, or (v) to any
potential permitted assignee of or participant in the interest of any Lender Party under the
Financing Documents for its information. Notwithstanding the foregoing, parties referred to in
clause (v) of the immediately preceding sentence who become Lenders after the date hereof may
The Lender Parties
c/o JPMorgan Chase Bank, N.A.,
as Administrative Agent
June28,2012
Page 4
rely on this opinion as if it were addressed to them (provided that such delivery shall not
constitute a re-issue or reaffirmation of this opinion as of any date after the date hereof). This
opinion may not be quoted without the prior wriffen consent of this Firm.
Very truly yours,
SCHEDULE I - LENDER PARTIES
The Royal Bank of Scotland plc
JPMorgan Chase Bank, N.A.
Union Banh N.A.
Wells Fargo Banh National Association
Barclays Bank PLC
U.S. Bank National Association
CoBank, ACB
BNP Paribas
Citibank,N.A.
Royal Bank ofCanada
Mizuho Corporate Banlq Ltd.
National Cooperative Services Corporation
The Bank ofNew York Mellon
The Bank ofNova Scotia
Sumitomo Mitsui Banking Corporation
Deutsche Bank AG New York Branch
Canadian Imperial Bank of Commerce, New York Agency
KeyBank National Association
Lloyds TSB Bank plc
PNC Bank, National Association
EXHIBIT E
(to the Credit Agreement)
FORM OF OPINION OF COUNSEL
FOR THE ADMINISTRATIVE AGENT
lDArEl
To each of the Lenders and LC Issuing Banks party to the
Credit Agreement referred to below
and to JPMorgan Chase Bank, N.A., as Administrative Agent
and Swingline Lender
PaciJiCorp
Ladies and Gentlemen:
We have acted as special New York counsel to JPMorgan Chase Bank, N.A., individually
and as Administrative Agent, in connection with the preparation, execution and delivery of the
Credit Agreement, dated as of June 28,2012 (the "Credit Agreemenf'), among PacifiCorp (the
"Boruower"), the Lenders and LC Issuing Banks named therein and JPMorgan Chase Bank,
N.A., as Administrative Agent and as Swingline Lender. This opinion is furnished to you
pursuant to Section 3.01(a)(vii) of the Credit Agreement. Unless otherwise indicated, terms
defined in the Credit Agreement are used herein as therein defined.
In that connection, we have examined the following documents:
(l) Counterparts of the Credit Agreement, executed by the Borrower, the
Administrative Agent, the Swingline Lender, the Lenders and the LC Issuing Banks;
(2) A form of the promissory notes issued by the Borrower on the date hereof for the
benefit of each Lender that requested one pursuant to Section 2.10(d) of the Credit Agreement
(collectively, the "Noles"); and
(3) The other documents furnished by the Borrower pursuant to Section 3.01(a) of the
Credit Agreement, including (without limitation) the opinion of Paul J. Leighton, counsel for the
Borrower (the " Opinio n").
In our examination of the documents referred to above, we have assumed the authenticity
of all such documents submitted to us as originals, the genuineness of all signatures, the due
authority of the parties executing such documents and the conformity to the originals of all such
documents submitted to us as copies. We have also assumed that each of the Lenders, the LC
Issuing Banks, the Swingline Lender and the Administrative Agent has duly executed and
delivered, with all necessary power and authority (corporate and otherwise), the Credit
Agreement. We have further assumed that you have evaluated, and are satisfied with, the
E-2
creditworthiness of the Borrower and the business and financial terms evidenced by the Loan
Documents.
To the extent that our opinions expressed below involve conclusions as to matters
governed by law other than the law of the State of New York and the Federal law of the United
States, we have relied upon the Opinion and have assumed without independent investigation the
correctness of the matters set forth therein, our opinions expressed below being subject to the
assumptions, qualifications and limitations set forth in the Opinion. We note that we do not
represent the Borrower and, accordingly, are not privy to the nature or character of its businesses.
Accordingly, we have also assumed that the Borrower is subject only to statutes, rules,
regulations, judgments, orders, and other requirements of law generally applicable to
corporations doing business in the State of New York. As to matters of fact, we have relied
solely upon the documents we have examined.
Based upon the foregoing, and subject to the qualifications set forth below, we are of the
opinion that:
(i) The Credit Agreement is, and each of the Notes when executed and delivered for
value received will be, the legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with their respective terms.
(ii) While we have not independently considered the matters covered by the Opinion
to the extent necessary to enable us to express the conclusions stated therein, the Opinion and the
other documents referred to in item (3) above are substantially responsive to the corresponding
requirements set forth in Section 3.01(a) of the Credit Agreement pursuant to which the same
have been delivered.
Our opinions are subject to the following qualifications:
(a) Our opinion in paragraph (i) above is subject to the effect of any applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar law
affecting creditors' rights generally.
(b) Our opinion in paragraph (i) above is subject to the effect of general principles of
equity, including (without limitation) concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at law). Such principles
of equity are of general obligation, and, in applying such principles, a court, among other things,
might not allow a contracting party to exercise remedies in respect of a default deemed
immaterial, or might decline to order an obligor to perform covenants.
(c) We note further that, in addition to the application of equitable principles
described above, courts have imposed an obligation on contracting parties to act reasonably and
in good faith in the exercise of their contractual rights and remedies, and may also apply public
policy considerations in limiting the right of parties seeking to obtain indemnification under
circumstances where the conduct of such parties in the circumstances in question is determined
to have constituted negligence.
E_3
(d) We express no opinion herein as to (i) Section 8.05 of the Credit Agreement, (ii)
the enforceability of provisions purporting to grant to a party conclusive rights of determination,
(iii) the availability of specific performance or other equitable remedies, (iv) the enforceability of
rights to indemnity under Federalor state securities laws and (v) the enforceability of waivers by
parties of their respective rights and remedies under law.
(e) In connection with any provision of the Credit Agreement or the Notes whereby
the Borrower submits to the jurisdiction of any court of competent jurisdiction, we note the
limitations of 28 U.S.C. $$ l33l and 1332 on Federal court jurisdiction.
(0 Our opinions expressed above are limited to the law of the State of New York and
the Federal law of the United States, and we do not express any opinion herein concerning any
other law. Without limiting the generality of the foregoing, we express no opinion as to the
effect of the law of any jurisdiction other than the State of New York wherein any Lender may
be located or wherein enforcement of the Credit Agreement or the Notes may be sought that
limits the rates of interest legally chargeable or collectible.
This opinion letter speaks only as of the date hereof and we expressly disclaim any
responsibility to advise you of any development or circumstance, including changes of law or
fact, that may occur after the date of this opinion letter that might affect the opinions expressed
herein. This opinion letter is furnished to the addressees hereof solely in connection with the
transactions contemplated by the Credit Agreement, is solely for the benefit of the addressees
hereof and may not be relied upon by any other Person or for any other purpose without our prior
written consent. Notwithstanding the foregoing, this opinion letter may be relied upon by any
Person that becomes a Lender after the date hereof in accordance with the provisions of the
Credit Agreement as if this opinion letter were addressed and delivered to such Person on the
date hereof. Any such reliance must be actual and reasonable under the circumstances existing at
the time such Person becomes a Lender, taking into account any changes in law or facts and any
other developments known to or reasonably knowable by such Person at such time.
Very truly yours,
MEO:kty
EXHIBIT F-l
(to the Credit Agreement)
IFORM Orl
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement, dated as of June 28, 2012 (as
amended, supplemented or otherwise modified from time to time, the "Credit Agreement"),
among PacifiCorp (the "BonoteeF"), the Lenders party thereto from time to time, JPMorgan
Chase Bank, N.A., as Administrative Agent and as Swingline Lender, and the LC Issuing Banks
party thereto from time to time.
Pursuant to the provisions of Section 2.18 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any
promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate,
(ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code,
(iii) it is not a ten percent shareholder of the Borrower within the meaning of Section
871(hX3XB) of the Internal Revenue Code and (iv) it is not a controlled foreign corporation
related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished the Administrative Agent and the Borrower with a
certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the
undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the
undersigned shall have at all times furnished the Borrower and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
[NAI\4E OF LENDER]
By:
Name:
Title:
Date: _ _, 20[ ]
EXHIBIT F-2
(to the Credit Agreement)
IFORM OFI
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax
Purposes)
Reference is hereby made to the Credit Agreement, dated as of June 28, 2012 (as
amended, supplemented or otherwise modified from time to time, the "Credit Agreemenf'),
among PacifiCorp (the "Botower"), the Lenders party thereto from time to time, JPMorgan
Chase Bank, N.A., as Administrative Agent and as Swingline Lender, and the LC Issuing Banks
party thereto from time to time.
Pursuant to the provisions of Section 2.18 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of
which it is providing this certificate, (ii) it is not a bank within the meaning of Section
881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of the
Bomower within the meaning of Section 87 I (hX3XB) of the Internal Revenue Code, and (iv) it is
not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3XC)
of the Internal Revenue Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S.
Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that
(l) if the information provided on this certificate changes, the undersigned shall promptly so
inform such Lender in writing, and (2) the undersigned shall have at all times furnished such
Lender with a properly completed and currently effective certificate in either the calendar year in
which each payment is to be made to the undersigned, or in either of the two calendar years
preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF PARTICIPANT]
Name:
Title:
Date: _ _,201 I
By:
EXHIBIT F-3
(to the Credit Agreement)
IFORM OFI
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement, dated as of June 28, 2012 (as
amended, supplemented or otherwise modified from time to time, the "Credit Agreemenf'),
among PacifiCorp (the "Bonower"), the Lenders party thereto from time to time, JPMorgan
Chase Bank, N.A., as Administrative Agent and as Swingline Lender, and the LC Issuing Banks
party thereto from time to time.
Pursuant to the provisions of Section 2.18 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record owner of the participation in respect of which it is
providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial
owners of such participation, (iii) with respect such participation, neither the undersigned nor
any of its direct or indirect partners/members is a bank extending credit pursuant to a loan
agreement entered into in the ordinary course of its trade or business within the meaning of
Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect
partners/members is a ten percent shareholder of the Borrower within the meaning of Section
871(hX3XB) of the Internal Revenue Code and (v) none of its direct or indirect
partners/members is a controlled foreign corporation related to the Borrower as described in
Section 881(c)(3XC) of the Internal Revenue Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY
accompanied by one of the following forms from each of its partners/members that is claiming
the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY
accompanied by an IRS Form W-8BEN from each of such partner's/member's beneficial owners
that is claiming the portfolio interest exemption. By executing this certificate, the undersigned
agrees that (l) if the information provided on this certificate changes, the undersigned shall
promptly so inform such Lender and (2) the undersigned shall have at all times furnished such
Lender with a properly completed and currently effective certificate in either the calendar year in
which each payment is to be made to the undersigned, or in either of the two calendar years
preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF PARTICIPANT]
Name:
Title:
Date: _ _,201 l
By:
EXHIBIT F.4
(to the Credit Agreement)
lroRM oFl
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement, dated as of June 28, 2012 (as
amended, supplemented or otherwise modified from time to time, the "Credit Agreement"),
among PacifiCorp (the "BonotoeF"), the Lenders party thereto from time to time, JPMorgan
Chase Bank, N.A., as Administrative Agent and as Swingline Lender, and the LC Issuing Banks
party thereto from time to time.
Pursuant to the provisions of Section 2.18 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any promissory
note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct
or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any
promissory note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant
to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its
direct or indirect partners/members is a bank extending credit pursuant to a loan agreement
entered into in the ordinary course of its trade or business within the meaning of Section
881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect partners/members is
a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code and (v) none of its direct or indirect partners/members is a controlled
foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal
Revenue Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS
Form W-8IMY accompanied by one of the following forms from each of its partners/members
that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form
W-8IMY accompanied by an IRS Form W-8BEN from each of such partner's/member's
beneficial owners that is claiming the portfolio interest exemption. By executing this certificate,
the undersigned agrees that (l) if the information provided on this certificate changes, the
undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the
undersigned shall have at all times furnished the Borrower and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF LENDER]
Name:
Title:
Date: _ ..._,201 l
SCHEDULE I
LIST OF COMMITMENT AMOUNTS AND APPLICABLE LENDING OFFICES
PACIFICORP
U.S. $600,000,000 Credit Agreement
Name of Bank Commitment
Amount
Domestic
Lending Office
Eurodollar
Lendine Office
JPMorgan Chase
Bank, N.A.
$42,214,912.28 500 Stanton Christiana Road,
Ops 2, Floor 03
Newark, Delaware 197 13-2107
Contact: Gregory Hutchins
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Same as
Domestic
Lending Offrce
The Royal Bank of
Scotland plc
$42,214,912.28 600 Washington Boulevard
Stamford, Connecticut 0690 I
Contact: Emily Freedman
Phone: [phone]
Email : [e-mail]
Group Email:
[e-mail]
Same as
Domestic
Lending Offrce
Union Bank, N.A.$42,214,912.28 445 South Figueroa Street, Gl6-110
Los Angeles, CA 90071
Contact: Dennis Blank
Fax: [phone]
Email: dennis.blank@unionbank. com
Same as
Domestic
Lending Office
Wells Fargo Banlq
National Association
$42,214,912.28 1300 SW 5th Ave
MAC: P6101-066
Portland, Oregon97201
Contact: Lisa Larpenteur
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Same as
Domestic
Lending Office
r-2
Name of Bank Commitment
Amount
Domestic
Lendine Office
Eurodollar
Lendine Office
Barclays Bank PLC $42,214,912.28 745 SeventhAvenue
NewYork,NewYork 10019
Contact: Alicia Borys
Phone: [phone]
Email : [e-mail]
Group Email:
xraU SLoanOps4@B arclay s.com
Same as
Domestic
Lending Office
U.S. Bank National
Association
s42,214,912.28 800 Nicollet Mall
Minneapolis, Minnesota 55402
Contact: Holland H. Williams
Phone: [phone]
Fax: [phone]
Email:
[e-mail]
Same as
Domestic
Lending Office
CoBank, ACB $s0,000,000.00 5500 South Quebec Street
Greenwood Village, CO 801l1
Contact: Josh Batchelder
Phone: [phone]
Fax : [phone]
Email : [e-mail]
Group Email : [e-mail]
Same as
Domestic
Lending Office
BNP Paribas s3 r,3s9,649.13 787 Seventh Avenue
New York, New York 10019
Contact: Denis O'Meara
Phone: [phone]
Fax: [phone]
Email:
[e-mail]. com
Same as
Domestic
Lending Office
Name of Bank Commitment
Amount
Domestic
Lendine Office
Eurodollar
Lendine Office
Citibank, N.A.$31,359,649.13 399 Park Avenue, l6- Floor 5
New York, New York 10043
Contact: Loan Administration
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Same as
Domestic
Lending Ofiice
Royal Bank of
Canada
$31,359,649.13 Three World Financial Center
New York, New York 10281
Contact: Kyle Hoffman
Phone: [phone]
Fax: [phone]
Email : [e-mail]
Same as
Domestic
Lending Office
Mizuho Corporate
Bank, Ltd.
$31,359,649.1 3 1251 Avenue of the Americas
New York, New York 10020
Contact: Masato Ishii
Phone: [phone]
Fax: [phone]
Email : [e-mail]
Same as
Domestic
Lending Office
National
Cooperative
Services Corporation
$24,122,807.02 20701 Cooperative Way
Dulles, Virginia 20166
Contact: L. Katrice Simpson
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Same as
Domestic
Lending Office
The Bank ofNew
York Mellon
$19,298,245.61 One Wall Street, l9th Floor
New York, New York 10286
Contact: Richard K. Fronapfel
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Same as
Domestic
Lending Office
Name of Bank Commitment
Amount
Domestic
Lendins Office
Eurodollar
Lending Office
The Bank ofNova
Scotia
$19,298,245.61 I Liberty Plaza
New York, New York 10006
Contact: Sandy Dewar
Phone: [phone]
Fax: [phone]
Email : [e-mail]
Same as
Domestic
Lending Offrce
Sumitomo Mitsui
Banking Corporation
$19,298,245.61 277 Park Avenue
New York, NY 10172
Contact: Emily Estevez
Phone: [phone]
Fax: [phone]
Emai I : [e-mail]
Same as
Domestic
Lending Office
Deutsche Bank AG
New York Branch
$19,298,245.61 5022 Gate Parkway Suite 1 00
Jacksonville, Florida 32256
Contact: Philippe Sandmeier
Phone: [phone]
Fax: [phone] .
Email : [e-mail]
Group Email : [e-mail]
Same as
Domestic
Lending Office
Canadian Imperial
Bank of Commerce,
New York Agency
$19,298,245.61 425 Lexinglon Avenue, 4th Floor
New York, New York 10017
Contact: Josh Hogarth
Phone: [phone]
Fax: [phone]
Email : Josh.Ho [e-mail]
Same as
Domestic
Lending Office
KeyBank National
Association
$19,298,245.61 601 108-AvenueNE
Bellevue, Washington 98004
Contact: Kevin Smith
Phone: [phone]
Fax: [phone]
Emai I : [e-mail]
Same as
Domestic
Lending Office
I-5
Name of Bank Commitment
Amount
Domestic
Lendine Office
Eurodollar
Lendine Office
Lloyds TSB Bank
plc
$19,298,245.61 1001 Fannin, Suite 4600
Houston, Texas77002
Contact: Christian Hammerbeck
Phone: [phone]
Fax: [phone]
Email:
[e-mail]
Group Email:
[e-mail]
Same as
Domestic
Lending Office
PNC Bank, National
Association
s12,061,403.51 249 Fifth Avenue
One PNC Plaza
Pittsburgh, Pennsylvani a I 5222
Contact: Michael Leong
Phone: [phone]
Email : [e-mail]
Group Email:
parti [e-mail]
Same as
Domestic
Lending Office
TOTAL $600.000.000 c
LC Issuine Bank
The Royal Bank of Scotland plc
JPMorgan Chase Bank, N.A.
Union Bank, N.A.
Barclays Bank PLC
SCHEDULE II
LIST OF FRONTING COMMITMENTS
PACIFICORP
U.S. $600,000,000 Credit Agreement
LC Issuins Bank Address
600 Washington Boulevard, Stamford,
Connecticut 06901
Contact: Richard Emmich
Phone: [phone]
Fax: [phone]
Email : [e-mail]
500 Stanton Christiana Road,
Ops 2, Floor 03
Newark, Delaware 197 13-2107
Contact: Gregory Hutchins
Phone: [phone]
Fax: [phone]
Email : greg.hutchins@j pmorgan.com
445 South Figueroa Street, G16-110
Los Angeles, CA 90071
Contact: Dennis Blank
Fax: [phone]
Email : [e-mail]
200 Park Avenue
New York, NY 10166
Contact: Letter of Credit Department /
Dawn Townsend
Phone: [phone]
Fax: [phone]
Group Email:
xral-etterofCredit@barclayscapital. com
Frontins Commitment
$150,000,000
$1s0,000,000
$150,000,000
s150,000,000
SCHEDULE III
LIST OF MATERIAL SUBSIDIARIES
PACIFICORP
U.S. $600,000,000 Credit Agreement
UPacrnEonp
\ AMDAIIRC N EtrtRGYmilGaCOrN
May 6,2013
VA OWRNIGHT DELIWRY
Idaho Public Utilities Commission
Statehouse
472 W est Washington Street
Boise,Idaho 83720
Attn: Jean D. Jewell
Commission Secretary
Re: Case No. PAC-E-11-09
Order No.32221
Report of New Credit Agreement for Short-Term Debt
Dear Commissioners:
Pursuant to the referenced Order, PacifiCorp submits to the Commission one verified copy of
the $600,000,000 Credit Agreement, dated as of March 27 , 2013, among PacifiCorp, the
Banks party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.
This credit agreement replaces the Credit Agreement dated as of July 6,2006 which was
terminated on March 27,2013. Confidential information will be provided under a separate
cover.
Because PacifiCorp has not made any new borrowings 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 documents, and
they are true, correct and complete.
Please contact me if you have any questions about this letter or the enclosed documents.
Sincerely,
(1. .[, rrii)^^* l.rJ L.J-QJ-,*
Bruce N. Williams
Vice President and Treasurer
Enclosure
Cc: Terri Carlock
Ted Weston
Pacific Forerl
Rocky Mountaln Powerl
PacifiGorp Energy
825 NE Multnomah, Suite 1900 LCT
Portland. Oregon 97232
CONFORMED COPY
u.s. $600,000,000
CREDIT AGREEMENT
Dated as of March 27,2013
Among
PACIFICORP
as the Borrower
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
JPMORGAI\ CHASE BANK, N.A.
as Administrative Agent and Swingline Lender
and
THE LC ISSUING BANKS
PARTY HERETO FROM TIME TO TIME
as LC Issuing Banks
RBS SECURITIES INC.
Global Coordinator
RBS SECURITIES INC.
BARCLAYS BANKPLC
WELLS FARGO SECT]RITIES, LLC
J.P. MORGAN SECI.]RITIES LLC
U.S. BAIIK NATIONAL ASSOCIATION
UNION BANK N.A.
U.S. BAIIK NATIONAL ASSOCIATION
UNION BANK N.A.
Documentation Agents
Joint Lead Arrangers and Joint Bookrunners
THE ROYAL BAIIK OF SCOTLAND PLC
BARCLAYS BANKPLC
WELLS FARGO BANK NATIONAL
ASSOCIATION
Syndication Agents
20480433
TABLE OF CONTENTS
Pase
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.... ............1
SECTION 1.01. Certain Defined Terms........ ......................1
SECTION 1.02. Computation of Time Periods. ................22
SECTION 1.03. Accounting Terms................. ..................22
SECTION 1.04. Classification of Loans and Borrowings........... ........22
SECTION 1.05. Other Interpretive Provisions. .................22
ARTICLE II AMOUNTS AND TERMS OF THE EXTENSIONS OF CREDIT.................23
SECTION 2.01. The Revolving Loans. ...........23
SECTION 2.}Z.Making the Revolving Loans ..................23
SECTION 2.03. Swingline Loans. ...................25
SECTION 2.}4.Letters of Credit. ...................26
SECTION 2.05. Fees. ....................31
SECTION 2.06.Extension of the Termination Date. ........32
SECTION 2.07.Increase of the Commitments. ............ ......................33
SECTION 2.08. Termination or Reduction of the Commitments............. ............34
SECTION 2.09. Repayment of Loans............ ...................35
SECTION 2.10. Evidence of Indebtedness.... ....................35
SECTION 2.11. Interest on Loans ...................36
SECTION 2.l2.Interest Rate Determination............ ........37
SECTION 2.13. Conversion of Revolving Loans. ............37
SECTION 2.l4.Optional Prepayments of Loans................ ................38
SECTION 2.Il.lncreased Costs. ....................38
SECTION 2.l6.Illegality. ........... ....................40
SECTION 2.I7.Payments and Computations.............. ......................40
SECTION 2.18. Taxes ...................42
SECTION 2.19. Sharing of Payments, Etc. .......................45
SECTION 2.20.Mitigation Obligations; Replacement of Lenders............... ........46
SECTION 2.2l.Defaulting Lenders............... ...................47
SECTION 2.22. Cash Collateral. ....................50
ARTICLE III CONDITIONS PRECEDENT ........51
SECTION 3.01. Conditions Precedent to Effectiveness............... .......51
SECTION 3.02. Conditions Precedent to each Extension of Credit.............. ........53
SECTION 3.03. Conditions Precedent to Issuance of Each Bond Letter of Credit.................53
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties ofthe Borrower. ......................55
ARTICLE V COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants........... .................58
SECTION 5.02. Negative Covenants. ............ ...................62
SECTION 5.03. Financial Covenant. ............. ...................63
ARTICLE VI EVENTS OF DEFAULT ............64
SECTION 6.01. Events of Default ...................64
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default.............................66
ARTICLE VII THE ADMINISTRATIVE AGENT.... .......66
SECTION 7.01. Appointment and Authority............. .......66
SECTION 7.02. Rights as a Lender............... ....................67
SECTION 7.03. Exculpatory Provisions. ........67
SECTION 7.04. Reliance by Administrative Agent........ ....................68
SECTION 7.05. Resignation of Administrative Agent. ......................69
SECTION 7.06. Non-Reliance on Administrative Agent and Other Lenders. ......70
SECTION 7.07. Indemnification. ....................70
SECTION 7.08. No Other Duties, etc............. ...................71
ARTICLE Vrrr MISCELLANEOUS............. ......................71
SECTION 8.01. Amendments, Etc............ ......71
SECTION 8.02. Notices, Etc. ........72
SECTION 8.03. No Waiver; Remedies. ..........74
SECTION 8.04. Costs and Expenses; Indemnification. ......................74
SECTION 8.05. Right of Set-off. ....................76
SECTION 8.06. Binding Effect. ......................76
SECTION 8.07. Assignments and Participations. .............77
SECTION 8.08. Confidentiality. .....................81
SECTION 8.09. Governing Law. ....................81
SECTION 8.10. Severability. ........81
SECTION 8.11. Execution in Counterparts................. ......82
SECTION 8.12. Jurisdiction, Etc............. ........82
SECTION 8.13. Waiver of Jury Trial.......... ......................82
SECTION 8.14. USA Patriot Act............ ........83
SECTION 8.15. No Fiduciary Duty. ........ .......83
SECTION 8.16. Waiver of Notice of Termination of Existing Credit Agreement. ................84
55
EXHIBITS AND SCHEDULES
EXHIBIT A
EXHTBIT B
EXHIBIT C
EXHIBIT D-I
EXHIBIT D-2 ------..
EXHIBIT E
EXHIBIT F-I
EXHIBIT F-2 ---------------
EXHIBIT F-3 ------------
EXHIBIT F-4 ---------------
SCHEDULE r ---------------
SCHEDULE II --------
SCHEDULE III--------
SCHEDULE IV.-------
Form of Notice of Borrowing
Form ofRequest for Issuance
Form of Assignment and Assumption
Form of Opinion of In-House Counsel for the Borrower
Form of Opinion of Special New York Counsel to the Borrower
Form of Opinion of Counsel for the Administrative Agent
Form of U.S. Tax Compliance Certificate (For Foreign Lenders
That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Participants
That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Participants
That Are Partnerships For U.S. Federal Income Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Lenders
That Are Partnerships For U.S. Federal Income Tax Purposes)
List of Commitment Amounts and Applicable Lending Offices
List of Fronting Commitments
Existing Letters of Credit
List of Material Subsidiaries
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of March 27, 2013 (this "Agreement"), among
PACIFICORP, an Oregon corporation (theo'Bonower"), the banks, financial institutions and
other institutional lenders listed on the signatures pages hereof (the "Initial Lenders"),
JPMORGAN CHASE BANK, N.A. (*JPMCB"), as administrative agent (in such capacity, the*Administrative Agenf') for the Lenders (as hereinafter defined) and as Swingline Lender (as
hereinafter defined), and the LC Issuing Banks (as hereinafter defined) party hereto from time to
time.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Deftned Terms.
As used in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the terms defined):
*Administrative Agent" has the meaning specified in the first paragraph of this
Agreement.
*Administrative Questionnaire" means an administrative questionnaire in a form
supplied by the Administrative Agent.
o'Affiliate" means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, controls or is controlled by or is under
common control with the Person specified. For purposes of this definition, the term
"control" (including the terms "controlled by" and "under common control with") of a
Person means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the ability to
exercise voting power, by contract or otherwise.
'oAgent Parties" has the meaning specified in Section 8.02(dxii).
"Agent's Account" means the account of the Administrative Agent designated
from time to time in a written notice to the Lenders and the Borrower as the account to
which the Lenders are to fund Borrowings and the Borrower is to make payments under
this Agreement.
"Applicable Low" means (i) all applicable common law and principles of equity
and (ii) all applicable provisions of all (A) constitutions, statutes, rules, regulations and
orders of all Governmental Authorities, (B) Governmental Approvals and (C) orders,
decisions, judgments and decrees of all courts (whether at law or in equity or admiralty)
and arbitrators.
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"Applicable Lending Offtce" means, with respect to each Lender, such Lender's
Domestic Lending Office in the case of a Base Rate Loan and such Lender's Eurodollar
Lending Office in the case of a Eurodollar Rate Revolving Loan.
"Applicable Morgin" means, with respect to any Base Rate Loan and any
Eurodollar Rate Revolving Loan, at all times during which any Applicable Rating Level
set forth below is in effect, the rate per annum (except as provided below) for such Loan
set forth below next to such Applicable Rating Level:
Applicable
Rating Level
Applicable Margin
for Eurodollar
Rate
Revolvins Loans
Applicable Margin
for Base Rate
Loans
0.87s%0.000%
2 r.000%0.000%
J 1.125%0.l25Yo
4 1.250%0.250%
5 1.500%0.500%
provided, that the Applicable Margins set forth above shall be increased, for each
Applicable Rating Level, upon the occulrence and during the continuance of any Event of
Default by 2.00% per annum. Any change in the Applicable Margin resulting from a
change in the Applicable Rating Level shall become effective upon the date of
announcement of any change in the Moody's Rating or the S&P Rating that results in
such change in the Applicable Rating Level.
"Applicoble Rating Levet'at any time shall be determined in accordance with the
then-applicable S&P Rating or the then-applicable Moody's Rating as follows:
The Applicable Rating Level for any day shall be determined based upon the higher of
the S&P Rating and the Moody's Rating in effect on such day. If the S&P Rating and the
Moody's Rating are not the same (i.e.,a "split rating"), the higher of such ratings shall
control, unless the ratings differ by more than one level, in which case the rating one
level below the higher of the two ratings shall control.
S&P Rating/lVf oody's Ratins
Applicable Rating
Level
S&P Ratine A* or higher or Moody's Rating A1 or hieher
S&P Ratine A or Moody's Rating A2 2
S&P Ratine A- or Moody's Rating ,A3 3
S&P Ratine BBB+ or Moody's Rating Baal 4
S&P Ratine BBB or Moody's Rating Baa2 or below or unrated 5
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"Approved Funt' means any Fund that is administered or managed by (i) a
Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an Eligible Assignee (with the consent of any party whose consent is
required by Section 8.07), and accepted by the Administrative Agent, in substantially the
form of Exhibit C or any other form approved by the Administrative Agent.
"Available Commitments" means, on any duy, the aggregate unused
Commitments, computed after giving effect to all Extensions of Credit made or to be
made on such day, the application of proceeds therefrom and all prepayments and
repayments of Revolving Loans made on such day.
"Bankruptcy Evenl" means, with respect to any Person, such Person becomes the
subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, custodian, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or assets (including the Federal
Deposit Insurance Corporation or any other Governmental Authority acting in a similar
capacity) appointed for it, provided that a Bankruptcy Event shall not result solely by
virtue of any ownership interest, or the acquisition of any ownership interest, in such
Person or a direct or indirect parent company of such Person by a Governmental
Authority if and for so long as such ownership interest does not result in or provide such
Person with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Person (or
such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or
agreements made with such Lender.
"Base Rote" means a fluctuating interest rate per annum in effect from time to
time, which rate per annum shall at all times be equal to the highest of:
(i) the rate of interest announced by JPMCB from time to time as JPMCB's
prime rate;
(ii) 112 of lo/o per annum above the Federal Funds Rate; and
(iii) the rate of interest per annum equal to BBA LIBOR, as published on
Bloomberg L.P.'s page BBAM (or another commercially available source
providing quotations of BBA LIBOR as designated by the Administrative
Agent from time to time) at approximately I l:00 a.m., London time, on
the date of determination for a term of one month (or if no such rates are
quoted on such day for any reason, the previous day for which quotations
are available) plus lo/o; provided, however, if more than one rate is
specified on such service, the applicable rate shall be the arithmetic mean
of all such rates plus l%o.
"Base Rate Loan" means a Loan that bears interest as provided in Section
2.tt(a).
*Berkshire Hathaway" means Berkshire Hathaway Inc.
'oBond Event of Default' has the meaning specified in Section 6.01 .
"Bond Letter of Credif' means any standby or direct pay letter of credit issued by
an LC Issuing Bank pursuant to Section 2.04 to support certain obligations to pay the
principal of, interest on and/or purchase or redemption price of Bonds.
"Bond LC Reimbursement Agreemenf' means, with respect to any Bond Letter
of Credit, any reimbursement agreement executed and delivered in connection with such
Bond Letter of Credit by the Borrower and the LC Issuing Bank issuing such Bond Letter
of Credit, as the same may be amended, supplemented, restated and otherwise modified
from time to time.
"Bonds" means pollution control revenue bonds or industrial development
revenue bonds (or similar obligations, however designated) issued pursuant to an
Indenture between the Trustee and the Issuer named therein.
"Bonower" has the meaning specified in the first paragraph of this Agreement.
"Bonowing!' means a borrowing by the Borrower consisting of (i) simultaneous
Revolving Loans of the same Type, having the same Interest Period and ratably made or
Converted on the same day by each of the Lenders pursuant to Section 2.02 or 2.13, as
the case may be or (ii) a Swingline Loan. All Revolving Loans to the Borrower of the
same Type, having the same Interest Period and made or Converted on the same day shall
be deemed a single Borrowing hereunder until repaid or next Converted.
"Bonowing Date" means the date of any Borrowing.
"Business Day" means a day of the year on which banks are not required or
authorized by law to close in New York City or Los Angeles and, if the applicable
Business Day relates to any Eurodollar Rate Revolving Loans, "Business Day" also
includes a day on which dealings are camied on in the London interbank market.
"Cosh Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of one or more of the LC Issuing Banks and the
Lenders, as collateral for LC Outstandings and obligations of Lenders to fund
participations in respect of LC Outstandings, cash or deposit account balances or, if the
Administrative Agent and each applicable LC Issuing Bank shall agree in their sole
discretion, other credit support, in each case pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent and each applicable LC
Issuing Bank. "Cash Collaterat'shall have a meaning correlative to the foregoing and
shall include the proceeds ofsuch cash collateral and other credit support.
*Change in Law" means the occurrence, after the date of this Agreement, of any
of the following: (i) the adoption of any law, rule, regulation or treaty, (ii) any change in
any law, rule, regulation or treaty or in the administration, interpretation, implementation
or application thereof by any Governmental Authority or (iii) the making or issuance of
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any request, rule, guideline or directive (whether or not having the force of law) by any
Governmental Authority; provided that notwithstanding anything herein to the contrary,
(x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines or directives (whether or not having the force of law) thereunder or
issued in connection therewith and (y) all requests, rules, guidelines or directives
(whether or not having the force of law) promulgated by the Bank for International
Settlements, the Basel Committee on Banking Supervision (or any successor or similar
authority) or the United States or foreign regulatory authorities, in each case pursuant to
Basel III, shall in each case be deemed to be a "Change in Law", regardless of the date
enacted, adopted or issued.
"Change of Control'has the meaning specified in Section 6.01(h).
"CIIW' means the Confidential Information Memorandum of the Borrower, dated
March 2013, as supplemented from time to time.
'oClass", when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are Revolving Loans or Swingline
Loans.
"Commitmenl" means, for each Lender, the obligation of such Lender to make
Revolving Loans to the Borrower and to acquire participations in Swingline Loans
hereunder in an aggregate amount no greater than the amount set forth on Schedule I
hereto or, if such Lender has entered into any Assignment and Assumption, set forth for
such Lender in the Register maintained by the Administrative Agent pursuant to Section
8.07(c), in each such case as such amount may be from time to time increased pursuant to
Section 2.07 or reduced pursuant to Section 2.08.
"Commitment Fee Rate" means, at any time, the rate per annum set forth below
next to the Applicable Rating Level in effect at such time:
Applicable
Ratins Level
Commitment
Fee Rate
0.075%
2 0.100%
J 0.rzs%
4 0.r75%
5 0.22s%
A change in the Commitment Fee Rate resulting from a change in the Applicable Rating
Level shall become effective upon the date of public announcement of a change in the
Moody's Rating or the S&P Rating that results in a change in the Applicable Rating
Level.
"Commitment Percentage" means, as to any Lender as of any date of
determination, the percentage describing such Lender's pro rata share of the
Commitments set forth initially on Schedule I hereto or in the Register from time to time;
provided that in the case of Section 2.21 when a Defaulting Lender shall exist,ooCommitment Percentage" means the percentage of the total Commitments
(disregarding any Defaulting Lender's Commitment) represented by such Lender's
Commitment. If the Commitments have terminated or expired, the Commitment
Percentages shall be determined based upon the Commitments most recently in effect,
giving effect to any assignments and to any Lender's status as a Defaulting Lender at the
time of determination.
"Commitments" means the aggregate of each Lender's Commitment hereunder.
"Communications" has the meaning specified Section 8.02(dxii).
"ConJidential Information" means information that the Borrower furnishes to the
Administrative Agent, the Global Coordinator, the Joint Lead Arrangers or any Lender in
a writing designated as confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes available to the
Administrative Agent, the Global Coordinator, the Joint Lead Arrangers or such Lender
from a source other than the Borrower that has no obligation to maintain the
confidentiality of such information.
o'Consolidated Assets" means, on any date of determination, the total of all assets
(including revaluations thereof as a result of commercial appraisals, price level
restatement or otherwise) appearing on the consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries most recently delivered to the Lenders pursuant to
Section 5.01(h) as of such date of determination.
ooConsolidated Capital" means the sum (without duplication) of (i) Consolidated
Debt of the Borrower (without giving effect to the proviso in the definition of
Consolidated Debt) and (ii) consolidated equity of all classes (whether common,
preferred, mandatorily convertible preferred or preference) of the Borrower.
"Consolidated Debf'of the Borrower means the total principal amount of all Debt
of the Borrower and its Consolidated Subsidiaries; provided that Guaranties of Debt shall
not be included in such total principal amount.
"Consolidated Subsidiary" means, with respect to any Person at any time, any
Subsidiary or other Person the accounts of which would be consolidated with those of
such first Person in its consolidated financial statements in accordance with GAAP.
"Converf', ooConversion" and "Convertet' each refers to a conversion of
Revolving Loans of one Type into Revolving Loans of the other Type, or the selection of
a new, or the renewal of the same, Interest Period for Eurodollar Rate Revolving Loans,
pursuant to Section 2.12 or 2.13.
"Credit PaW* means the Administrative Agent, the Swingline Lender, any LC
Issuing Bank or any Lender.
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o'Cuslodion" means, for any series of Bonds, any Person acting as bailee and
agent for the Administrative Agent (on behalf of the applicable LC Issuing Bank and the
Lenders) under any Pledge Agreement relating to such Bonds.
o'Debt" of any Person means, at any date, without duplication, (i) all indebtedness
of such Person for borrowed money, (ii) all obligations of such Person for the deferred
purchase price of property or services (otherthan trade payables incurred in the ordinary
courseof such Person's business), (iii) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (iv) all obligations of such Person as
lessee under leases that have been, in accordance with GAAP, recorded as capital leases,
(v) all obligations of such Person in respect of reimbursement agreements with respect to
acceptances, letters of credit (other than trade letters of credit) or similar extensions of
credit, and (vi) all Guaranties. Solely for the purpose of calculating compliance with the
covenant in Section 5.03, Debt shall not include Debt of the Borrower or its Consolidated
Subsidiaries arising from the qualification of an arrangement as a lease due to that
arrangement conveying the right to use or to control the use of property, plant or
equipment under the application of the Financial Accounting Standards Board's
Accounting Standards Codification Topic 840 - Leases paragraph 840-10-15-6, nor shall
Debt include Debt of any variable interest entity consolidated by PacifiCorp under the
requirements of Topic 810 - Consolidation.
o'Debtor Relief Lolls" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief laws of the United States or other applicable jurisdictions from
time to time in effect.
"Declining Lendef'has the meaning specified in Section 2.06(b).
"Defoult" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or both.
"Defaulting Lendef' means, subject to Section 2.21(b), any Lender that (i) has
failed, within two Business Days after the date required to be funded or paid, to (A) fund
all or any portion of its Loans, (B) fund any portion of its participations in Letters of
Credit or Swingline Loans or (C) pay over to any Credit Party any other amount required
to be paid by it under this Agreement, unless, in the case of clause (A) above, such failure
is the result of such Lender's good faith determination that one or more conditions
precedent to funding (each of which conditions precedent, together with any applicable
default, shall be specifically identified in writing) has not been satisfied, as notified by
such Lender to the Administrative Agent and the Borrower in such writing, (ii) has
notified the Borrower or any Credit Party in writing that it does not intend to comply with
any of its funding obligations under this Agreement or has made a public statement to the
effect that it does not intend to comply with its funding obligations under this Agreement
(unless such writing or public statement relates to such Lender's obligation to fund a
Loan hereunder and such position is based on such Lender's good faith determination
that a condition precedent (which condition precedent, together with any applicable
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default, shall be specifically identified in such writing or public statement) to funding a
Loan under this Agreement cannot be satisfied), (iii) has failed, within three Business
Days after written request by the Administrative Agent, the Swingline Lender, any LC
Issuing Bank or the Borrower, acting in good faith, to confirm in writing to such
requesting party that it will comply with its obligations to fund prospective Loans and
participations in then outstanding Lefters of Credit and Swingline Loans under this
Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to
clause (iii) upon such requesting party's receipt of such written confirmation in form and
substance satisfactory to it and the Administrative Agent, or (iv) has become the subject
of a Bankruptcy Event. Any determination by the Administrative Agent that a Lender is
a Defaulting Lender under any one or more of clauses (i) through (iv) above shall be
conclusive and binding absent manifest error, and such Lender shall be deemed to be a
Defaulting Lender (subject to Section 2.21(b)) upon delivery of written notice of such
determination to the Borrower, each LC Issuing Bank, the Swingline Lender and each
Lender.
"Designated Lender" has the meaning specified in Section 2.07(a).
"Dollars" and the symbol "$" mean lawful currency of the United States of
America.
o'Domestic Lending Office" means, with respect to any Lender, the office of such
Lender specified as its "Domestic Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Assumption pursuant to which it became a Lender, or
such other office of such Lender as such Lender may from time to time speciff in writing
to the Borrower and the Administrative Agent.
"Eligible Assignee" means any Person that meets the requirements to be an
assignee under Section 8.07(bxiii), (v) and (vi) (subject to such consents, if any, as may
be required under Section 8.07(bxiii)).
"Environmental Action" means any action, suit, demand, demand letter, claim,
notice of non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the environment, including, without
limitation, (i) by any Governmental Authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (ii) by any Governmental Authorityor any third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmentol Low" means any federal, state, local or foreign statute, law,
ordinance, rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or discharge of Hazardous
Materials.
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"Environmental PermrT" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 7974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA AfJiliate" means, with respect to any Person, each trade or business
(whether or not incorporated) that is considered to be a single employer with such entity
within the meaning of Section 414(b), (c), (m) or (o) of the Internal Revenue Code.
"ERISA Evenl" means (i) any "reportable event," as defined in Section 4043 of
ERISA with respect to a Pension Plan (other than an event as to which the PBGC has
waived the requirement of Section 4043(a) of ERISA that it be notified of such event);
(ii) the failure to make a required contribution to any Pension Plan that would result in
the imposition of a lien or other encumbrance or the provision of security under Section
430 of the Internal Revenue Code or Section 303 or 4068 of ERISA, or there being or
arising any "unpaid minimum required contribution" or "accumulated funding
deficiency" (as defined or otherwise set forth in Section 4971 of the Internal Revenue
Code or Part 3 of Subtitle B of Title I of ERISA), whether or not waived, or the filing of
any request for or receipt of a minimum funding waiver under Section 412 of the Internal
Revenue Code with respect to any Pension Plan or Multiemployer Plan, or a
determination that any Pension Plan is, or is reasonably expected to be, in arrisk status
under Title IV of ERISA; (iii) the filing of a notice of intent to terminate any Pension
Plan, if such termination would require material additional contributions in order to be
considered a standard termination within the meaning of Section 4041(b) of ERISA, the
filing under Section 4041(c) of ERISA of a notice of intent to terminate any Pension
Plan, or the termination of any Pension Plan under Section 4041(c) of ERISA; (iv) the
institution of proceedings, or the occurrence of an event or condition that would
reasonably be expected to constitute grounds for the institution of proceedings by the
PBGC, under Section 4042 of ERISA, for the termination of, or the appointment of a
trustee to administer, any Pension Plan; (v) the complete or partial withdrawal of the
Borrower or any of its ERISA Affiliates from a Multiemployer Plan, the reorganization
or insolvency under Title IV of ERISA of any Multiemployer Plan, or the receipt by the
Borrower or any of its ERISA Affiliates of any notice that a Multiemployer Plan is in
endangered or critical status under Section 305 of ERISA; (vi) the failure by the
Borrower or any of its ERISA Affiliates to comply with ERISA or the related provisions
of the Internal Revenue Code with respect to any Pension Plan; (vii) the Borrower or any
of its ERISA Affiliates incurring any liability under Title IV of ERISA with respect to
any Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA); or (viii) the failure by the Borrower or any of its Subsidiaries to comply with
Applicable Law with respect to any Foreign Plan.
"Eurocunency Liabilities" has the meaning assigned to that term in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from time to time.
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"Eurodollar Lending Oflice" means, with respect to any Lender, the office of
such Lender specified as its "Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Assumption pursuant to which it became a Lender (or, if
no such office is specified, its Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify in writing to the Borrower and the
Administrative Agent.
"Eurodollar Rale" means, for any Interest Period for each Eurodollar Rate
Revolving Loan comprising part of the same Borrowing, an interest rate per annum equal
to BBA LIBOR, as published on Bloomberg L.P.'s page BBAM (or another
commercially available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately I l:00 a.m. London time, two
Business Days prior to the commencement of such Interest Period, for dollar deposits (for
delivery on the first day of such Interest Period) 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 term "Eurodollar Rate" means an interest rate per annum equal to the rate of
interest per annum (rounded upwards, if necessary, to the next 1/100th of l%) at which
dollar deposits (for delivery on the first day of such Interest Period) of comparable
amount to such Eurodollar Rate Revolving Loan being made or Converted by JPMCB
and comparable maturity to such Interest Period are offered by the principal London
office of the Administrative Agent (or its principal London banking Affiliate) in
immediately available funds in the London interbank market at approximately 1l:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period.
"Eurodollar Rate Revolving Loan" means a Revolving Loan that bears interest as
provided in Section 2.1l(b).
"Eurodollar Rate Reserve Percentage" of any Lender for any Interest Period for
each Eurodollar Rate Revolving Loan means the reserve percentage applicable to such
Lender during such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such Interest Period
during which any such percentage shall be so applicable) under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserye requirement) then applicable to such
Lender with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurodollar Rate Revolving Loans is determined)
having a term equal to such Interest Period.
"Evenls of Default" has the meaning specified in Section 6.01.
*Existing Bond Letters of Credif'has the meaning specified in Section 2.04(k).
"Excluded Toxes" means any of the following Taxes imposed on or with respect
to a Recipient or required to be withheld or deducted from a payment to a Recipient, (i)
Taxes imposed on or measured by net income (however denominated), franchise Taxes,
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and branch profits Taxes, in each case, (A) imposed as a result of such Recipient being
organized under the laws of, or having its principal office or, in the case of any Lender,
its Applicable Lending Office located in, the jurisdiction imposing such Tax (or any
political subdivision thereof) or (B) that are Other Connection Taxes, (ii) in the case of a
Lender, withholding Taxes imposed on amounts payable to or for the account of such
Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law
in effect on the date on which (A) such Lender acquires such interest in the Loan or
Commitment (other than pursuant to an assignment request by the Borrower under
Section 2.20(b)) or (B) such Lender changes its Applicable Lending Office, except in
each case to the extent that, pursuant to Section 2.18, amounts with respect to such Taxes
were payable either to such Lender's assignor immediately before such Lender became a
party hereto or to such Lender immediately before it changed its Applicable Lending
Offlrce, (iii) Taxes attributable to such Recipient's failure to comply with Section 2.18(g)
and (iv) any Taxes imposed under FATCA.
"Existing Credil Agreement' means the Amended and Restated Credit
Agreement, dated as of July 6, 2006, as amended, among the Borrower, JPMCB, as
administrative agent, and certain other financial institutions named therein.
"Ertension Effective Date" has the meaning specified in Section 2.06(c).
"Extension of Credit" means the making of a Borrowing, the issuance of a Leffer
of Credit or the amendment of any Letter of Credit having the effect of extending the
stated termination date thereof or increasing the maximum amount available to be drawn
thereunder. For purposes of this Agreement, a Conversion shall not constitute an
Extension of Credit.
"FATCA" means Sections 1471 through 1474 of the Internal Revenue Code, as of
the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future
regulations or official interpretations thereof and any agreements entered into pursuant to
Section l47l(bXl) of the Internal Revenue Code.
"Fee Letter,s" means (i) the letter agreement, dated as of February 19, 2013,
between the Borrower and JPMCB, (ii) the letter agreement, dated as of February 19,
2013, between the Borrower and RBS Securities Inc., (iii) the letter agreement, dated as
of February 19, 2013, among the Borrower, The Royal Bank of Scotland plc, RBS
Securities Inc., Barclays Bank PLC, Wells Fargo Bank, National Association and Wells
Fargo Securities, LLC, (iv) the letter agreement, dated as of February 19,2013, among
the Borrower, JPMCB, J.P. Morgan Securities LLC and Union Bank, N.A., (v) the letter
agreement, dated as of February 19,2013, between the Borrower and U.S. Bank National
Association, and (vi) each LC Issuing Bank Fee Letter, in each case, as amended,
modified or supplemented from time to time.
"Federal Funds Role" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
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arranged by Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day, the average
of the quotations for such day on such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by it.
*FERC means the Federal Energy Regulatory Commission.
"Foreign Lendef'means a Lender that is not a U.S. Person.
"Foreign Plon" means any pension, profit-sharing, deferred compensation, or
other employee benefit plan, program or arrangement (other than a Pension Plan or a
Multiemployer Plan) maintained by any Subsidiary of the Borrower that, under
applicable local foreign law, is required to be funded through a trust or other funding
vehicle.
"Fronting Commitmenf' means, with respect to any LC Issuing Bank, the
aggregate stated amount of all Letters of Credit that such LC Issuing Bank agrees to issue
(subject to the LC Commitment Amount), as modified from time to time pursuant to an
agreement signed by such LC Issuing Bank. With respect to each Lender that is an LC
Issuing Bank on the date hereof, such LC Issuing Bank's Fronting Commitment is listed
on Schedule II, and (ii) with respect to any Lender that becomes an LC Issuing Bank after
the date hereof such Lender's Fronting Commitment will be the amount agreed between
the Borrower and such Lender at the time that such Lender becomes an LC Issuing Bank,
in each case, as such Fronting Commitment may be modified in accordance with the
terms of this Agreement.
"Fronting Exposure" means, at any time there is a Defaulting Lender, (i) with
respect to any LC Issuing Bank, such Defaulting Lender's Commitment Percentage of the
LC Outstandings with respect to Letters of Credit issued by such LC Issuing Bank other
than LC Outstandings as to which such Defaulting Lender's participation obligation has
been reallocated to other Lenders or Cash Collateralized in accordance with the terms
hereof, and (ii) with respect to the Swingline Lender, such Defaulting Lender's
Commitment Percentage of Swingline Outstandings other than Swingline Loans as to
which such Defaulting Lender's participation obligation has been reallocated to other
Lenders.
"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 activities.
*GA4P'has the meaning specified in Section 1.03.
" Global Coordinatoy'' means RBS Securities Inc.
"Governmental Approvaf' means any authorization, consent, approval, license or
exemption of, registration or filing with, or report or notice to, any Governmental
Authority.
13
"Governmental Authority" means the government of the United States of
America or any other nation, or of any political subdivision thereof whether state or
local, and any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to govemment (including any supra-national bodies
such as the European Union or the European Central Bank).
"Guoronty" of any Person means (i) any obligation, contingent or otherwise, of
such Person to pay any Debt of any other Person and (ii) all reasonably quantifiable
obligations of such Person under indemnities or under support or capital contribution
agreements, and other reasonably quantifiable obligations (contingent or otherwise) to
purchase or otherwise to assure a creditor against loss in respect of, or to assure an
obligee against loss in respect of, any Debt of any other Person guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by
such Person through an agreement (A) to pay or purchase such Debt or to advance or
supply funds for the payment or purchase of such Debt, (B) to purchase, sell or lease (as
lessee or lessor) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Debt or to assure the holder of such Debt
against loss, (C) to supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of whether such property is
received or such services are rendered) or (D) otherwise to assure a creditor against loss;
provided that the term o'Guaranty" shall not include endorsements for collection or
deposit in the ordinary course of business or the grant of a Lien in connection with
Project Finance Debt.
"Hazardous Materials" means (i) petroleum and petroleum products, byproductsor breakdown products, radioactive materials, asbestos-containing materials,
polychlorinated biphenyls and radon gas and (ii) any other chemicals, materials or
substances designated, classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"IndemniJied Party" has the meaning specified in Section 8.04(b).
"Indemnilied Taxes" means (i) Taxes, other than Excluded Taxes, imposed on or
with respect to any payment made by or on account of any obligation of the Borrower
under any Loan Document and (ii) to the extent not otherwise described in (i), Other
Taxes.
'ofndenture" means, for any series of Bonds, the indenture pursuant to which such
Bonds are issued and any supplement thereto relating to such Bonds.
"Initial Lenders" has the meaning specified in the first paragraph of this
Agreement.
"fnfurest Period' means, for each Eurodollar Rate Revolving Loan comprising
part of the same Borrowing, the period commencing on the date of such Eurodollar Rate
Revolving Loan or the date of the Conversion of any Base Rate Revolving Loan into
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such Eurodollar Rate Revolving Loan and ending on the last day of the period selected by
the Borrower pursuant to the provisions below and, thereafter, with respect to Eurodollar
Rate Revolving Loans, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the period selected
by the Borrower pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months or such other period acceptable to all the
Lenders, as the Borrower may, upon notice received by the Administrative Agent not
later than 12:00 noon on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period that ends after the latest
Termination Date in effect at such time;
(ii) Interest Periods commencing on the same date for Eurodollar Rate
Revolving Loans comprising part of the same Borrowing shall be of the
same duration;
(iii) whenever the last day of any Interest Period would otherwise occur on a
day other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day, provided,
Itowever, that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a day of an initial
calendar month for which there is no numerically corresponding day in the
calendar month that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such succeeding
calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.
"Investmenf in any Person means (i) any direct or indirect loan, advance or other
extension of credit made to such Person (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business), (ii) any
capital contribution to such Person, (iii) any purchase of an ownership interest in such
Person, (iv) any purchase of all or substantially all of the assets of such Person or (v) any
purchase of assets constituting a business unit of such Person. For purposes of this
definition, the Dollar value of any Investment made by any Person shall be the amount of
capital invested by such Person in such Investment.
"Itr|^y'means the United States Internal Revenue Service.
'olssueF" means, for any series of Bonds, the
applicable Indenture.
of such Bonds under the
l5
"fssuer Agreement" means, for any series of Bonds, the agreement between the
applicable Issuer and the Borrower pursuant to which (i) the proceeds of such Bonds are
loaned by such Issuer to the Borrower, together with any promissory note or other
instrument evidencing the indebtedness of the Borrower under such agreement, or (ii) the
Borrower agrees to pay the purchase price of, or rent with respect to, the facilities
financed or refinanced with the proceeds of such Bonds.
"Joint Lead Arrongers" means RBS Securities Inc., J.P. Morgan Securities LLC,
Union Bank, N.A., Barclays Bank PLC, Wells Fargo Securities, LLC and U.S. Bank
National Association.
"JPMCB" has the meaning specified in the recital of parties to this Agreement.
*LC Collateral Accounf'has the meaning specified in Section 6.02.
o'LC Commitment Amounf'means $600,000,000 as the same may be reduced
permanently from time to time pursuant to Section 2.08.
"LC Fee" has the meaning specified in Section 2.05(c).
"LC Issuing Bonk" means each Lender identified as an "LC Issuing Bank" on
Schedule II and any other Lender or Affiliate of a Lender that shall agree to issue a Letter
of Credit pursuant to Section 2.04.
"LC Issuing Bank Fee Letter" means (i) the letter agreement, dated as of
February 19,2013, among the Borrower, JPMCB, Barclays Bank PLC and Wells Fargo
Bank, National Association, and (ii) any other agreement between the Borrower and an
LC Issuing Bank, in form and substance satisfactory to such LC Issuing Bank,
conceming fees payable by the Borrower to such LC Issuing Bank for its own account.
*LC Outstandings" means, on any date of determination, the sum of (i) the
undrawn stated amounts of all Letters of Credit that are outstanding on such date plus (ii)
the aggregate principal amount of all unpaid reimbursement obligations of the Borrower
on such date with respect to payments made by any LC Issuing Bank under any Letter of
Credit (excluding reimbursement obligations that have been repaid with the proceeds of
any Borrowing). The LC Outstandings with respect to any Lender at any time shall be its
Commitment Percentage of the total LC Outstandings at such time.
"LC Payment Notice" has the meaning specified in Section 2.04(e).
"Lenders" means the Initial Lenders and each Person that shall become party
hereto pursuant to an Assignment and Assumption, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the
context otherwise requires, the terms "Lender" and "Lenders" shall be deemed to mean
and include the Swingline Lender.
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"Letter of Credif' means a standby letter of credit issued by an LC Issuing Bank
pursuant to Section 2.04 or a Bond Letter of Credit, in each case, as amended, modified
or extended in accordance with the terms of this Agreement.
"Lienu means any lien, security interest or other charge or encumbrance of any
kind, or any other type of preferential arrangement, including, without limitation, the lien
or retained security title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property.
"Loan Documenls" means, collectively, (i) this Agreement, (ii) the Fee Letters
and (iii) any promissory note issued pursuant to Section 2.10(d).
"Loans" means the loans made by the Lenders to the Borrower pursuant this
Agreement.
*Margin Regulations" means Regulations T, U and X of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
"Margin Stocll'has the meaning specified in the Margin Regulations.
*Material Adverse Elfecf'means a material adverse effect on (i) on the business,
operations, properties, financial condition, assets or liabilities (including, without
limitation, contingent liabilities) of the Borrower and its Subsidiaries, taken as a whole,
(ii) the ability of the Borrower to perform its obligations under the Loan Documents or
(iii) the ability of the Administrative Agent, the Swingline Lender, any LC Issuing Bank
or any Lender to enforce its rights under the Loan Documents.
*Moterial Subsidiories" means any Subsidiary of the Borrower with respect to
which (x) the Borrower's percentage ownership interest in such Subsidiary multiplied by
(y) the book value of the Consolidated Assets of such Subsidiary represents atleast l5o/o
of the Consolidated Assets of the Borrower as reflected in the latest financial statements
of the Borrower delivered pursuant to clause (i) or (ii) of Section 5.01(h).
"Minimum Collateral Amount" means, at any time, (i) with respect to Cash
Collateral consisting of cash or deposit account balances, an amount equal to 103 o/o of
the Fronting Exposure of all LC Issuing Banks with respect to Letters of Credit issued
and outstanding at such time and (ii) otherwise, an amount determined by the
Administrative Agent and the LC Issuing Banks in their sole discretion.
"Moody's" means Moody's Investors Service, Inc.
"Moody's Rating!' means, on any date of determination, the rating most recently
announced by Moody's with respect to any senior unsecured, non-credit enhanced Debt
of the Borrower.
"Multiemployer Plan" means any "multiemployer plan" (as such term is defined
in Section a001(a)(3) of ERISA), which is contributed to by (or to which there is or may
be an obligation to contribute of) the Borrower or any of its ERISA Affiliates or with
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respect to which the Borrower or any of its ERISA Affiliates has, or could reasonably be
expected to have, any liability.
"Non-Consenting Lender" means any Lender that does not approve any consent,
waiver or amendment that (i) requires the approval of all affected Lenders in accordance
with the terms of Section 8.01 and (ii) has been approved by the Required Lenders.
"Non-Defaulting Lendef' means, at the time of determination, a Lender that is
not a Defaulting Lender.
"non-performing Lender" has the meaning specified in Section 2.04(f).
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
*Official Statement" means, for any series of Bonds, the official statement,
reoffering circular or similar disclosure document (however designated) relating to such
Bonds and the applicable LC Issuing Bank, as amended and supplemented from time to
time, and all documents incorporated therein (or in any such supplement or amendment)
by reference.
"Other Connection Taxes" means, with respect to any Recipient, Taxes imposed
as a result of a present or former connection between such Recipient and the jurisdiction
imposing such Tax (other than connections arising solely from such Recipient having
executed, delivered, become a pary to, performed its obligations under, received
payments under, received or perfected a security interest under, engaged in any other
transaction pursuant to or enforced any Loan Document).
"Other Toxes" means all present or future stamp, court or documentary,
intangible, recording, filing or similar Taxes that arise from any payment made under,
from the execution, delivery, performance, enforcement or registration of, from the
receipt or perfection of a security interest under, or otherwise with respect to, any Loan
Document, except any such Taxes imposed with respect to an assignment (other than an
assignment made pursuant to Section 2.20).
"Outstanding Credits" means, on any date of determination, the sum of (i) the
aggregate principal amount of all Loans outstanding on such date plus (ii) the LC
Outstandings on such date. The Outstanding Credits with respect to any Lender at any
time shall be its Commitment Percentage of the total Outstanding Credits at such time.
"Porticipanl'has the meaning assigned to such term in Section 8.07(d).
o'Participont Register" has the meaning specified in Section 8.07(d).
*Potriot Acf' has the meaning specified in Section 8.14.
*PBGC'means the Pension Benefit Guaranty Corporation (or any successor).
l8
"Pension Plan" means any "employee pension benefit plan" (as defined in
Section 3(2) of ERISA) (other than a Multiemployer Plan), subject to the provisions of
Title IV of ERISA or Section 412 of the Internal Revenue Code or Section 302 of
ERISA, maintained or contributed to by the Borrower or any of its ERISA Affiliates or to
which the Borrower or any of its ERISA Affiliates has or may have an obligation to
contribute (or is deemed under Section 4069 of ERISA to have maintained or contributed
to or to have had an obligation to contribute to, or otherwise to have liability with respect
to) such plan.
"Permitted Liens" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced: (i)
Liens for taxes, assessments and governmental charges or levies to the extent not required
to be paid under Section 5.01(a) hereof; (ii) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens, and other
similar Liens arising in the ordinary course of business; (iii) Liens incurred or deposits
made to secure obligations under workers' compensation laws or similar legislation or to
secure public or statutory obligations; (iv) easements, rights of way and other
encumbrances on title to real property that do not render title to the property encumbered
thereby unmarketable, includingzoning and landmarking restrictions; (v) any judgment
Lien, unless an Event of Default under Section 6.01(e) shall have occurred and be
continuing with respect thereto; (vi) any Lien on any asset of any Person existing at the
time such Person is merged or consolidated with or into the Borrower or any Material
Subsidiary and not created in contemplation of such event; (vii) pledges and deposits
made in the ordinary course of business to secure the performance of bids, trade contracts
(other than for Debt), operating leases and surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of business; (viii)
Liens upon or in any real property or equipment acquired, constructed, improved or held
by the Borrower or any Subsidiary in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt incurred solely for the
pufpose of financing the acquisition, construction or improvement of such property or
equipment, or Liens existing on such property or equipment at the time of its acquisition
(other than any such Liens created in contemplation of such acquisition that were not
incurred to finance the acquisition of such property), (ix) Liens securing Project Finance
Debt, (x) any Lien on the Borrower's or any Material Subsidiary's interest in Bonds or
cash or cash equivalents securing (A) the obligation of the Borrower or any Material
Subsidiary to reimburse the issuer of a letter of credit supporting payments to be made in
respect of such Bonds (including any Bond Letter of Credit) for a drawing on such letter
of credit for the purpose of purchasing Bonds or (B) the obligation of the Borrower or
any Material Subsidiary to reimburse or repay amounts advanced under any facility
entered into to provide liquidity or credit support for any issue of Bonds; and (xi)
extensions, renewals or replacements of any Lien described in clause (vi), (vii), (viii), (ix)
or (x) for the same or a lesser amount, provided, Itowever, that no such Lien shall extend
to or cover any properties (other than after-acquired property already within the scope of
the relevant Lien grant) not theretofore subject to the Lien being extended, renewed or
replaced.
"Person" means any natural Person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
"Platform" has the meaning specified in Section 8.02(dxi).
"Pledge Agreement" means, for any series of Bonds, the pledge agreement or
custodian agreement (or similar agreement, however designated), among the
Administrative Agent, the Borrower and the applicable Custodian with respect to such
Bonds, setting forth certain terms relating to the pledge and/or ownership of any such
Bonds pending the remarketing thereof pursuant to the applicable Remarketing
Agreement.
"Project Finance Debf'means Debt of any Subsidiary of the Borrower (i) that is
(A) not recourse to the Borrower other than with respect to Liens granted by the
Borrower on direct or indirect equity interests in such Subsidiary to secure such Debt and
limited Guaranties of, or equity commitments with respect to, such Debt by the Borrower,
which Liens, limited Guaranties and equity commitments are of a type consistent with
other limited recourse project financings, and other than customary contractual carve-outs
to the non-recourse nature of such Debt consistent with other limited recourse project
financings, and (B) incurred in connection with the acquisition, development,
construction or improvement of any project, single purpose or other fixed assets of such
Subsidiary, including Debt assumed in connection with the acquisition of such assets, or
(ii) that represents an extension, renewal, replacement or refinancing of the foregoing,
provided that, in the case of a replacement or refinancing, the principal amount of such
new Debt shall not exceed the principal amount of the Debt being replaced or refinanced
plus l0% of such principal amount.
"Rating Decline" means the occurrence of the following on, or within 90 days
after, the earlier of (i) the occurrence of a Change of Control and (ii) the earlier of (x) the
date of public notice of the occurrence of a Change of Control and (y) the date of the
public notice of the Borrower's (or its direct or indirect parent company's) intention to
effect a Change of Control, which 90-day period will be extended so long as the S&P
Rating or Moody's Rating is under publicly announced consideration for possible
downgrading by S&P or Moody's, as applicable: the S&P Rating is reduced below
BBB+ or the Moody's Rating is reduced below Baal.
"Recipienf'means (i) the Administrative Agent, (ii) any Lender and (iii) any LC
Issuing Bank, as applicable.
"Register" has the meaning specified in Section 8.07(c).
"Reimbursement Amounf'has the meaning specified in Section 2.04(d).
"Related Documents" means, for any series of Bonds, such Bonds and the
lndenture, the Issuer Agreement, any Remarketing Agreement and any Pledge Agreement
relating to such Bonds.
20
"Related Parties" means, with respect to any Person, such Person's Affiliates and
the partners, directors, officers, employees, agents, trustees, administrators, managers,
advisors and representatives of such Person and of such Person's Affiliates.
"Remarketing Agenf' means, for any series of Bonds, any Person acting in the
capacity of remarketing agent for such Bonds pursuant to a Remarketing Agreement
relating to such Bonds.
"Remarketing Agreement" means, for any series of Bonds, any agreement or
other arrangement pursuant to which the applicable Remarketing Agent has agreed to act
in such capacity with respect to such Bonds tendered for purchase pursuant to the
applicable Indenture.
"Removal Effective Dote" has the meaning specified in Section 7.05(b).
"Request for Issuance" means a request made pursuant to Section 2.04 in the
form of Exhibit B.
"Required Lenders" means at any time Lenders owed in excess of 50% of the
then aggregate unpaid principal amount of the Revolving Loans and participation
obligations with respectto the LC Outstandings and Swingline Outstandings, or, if there
are no Outstanding Credits, Lenders having in excess of 50Yo in interest of the
Commitments (without giving effect to any termination in whole of the Commitments
pursuant to Section 6.01). The Commitments, outstanding Loans and participation
obligations with respect to the LC Outstandings and Swingline Outstandings for any
Defaulting Lender shall be disregarded in determining Required Lenders at any time.
"Resignation Effective Date" has the meaning specified in Section 7.05(a).
"Revolving Loan" means a Loan by a Lender to the Borrower pursuant to Section
2.02 as part of a Borrowing and refers to a Base Rate Revolving Loan or a Eurodollar
Rate Revolving Loan.
uS&P" means Standard & Poor's Financial Services LLC, a subsidiary of The
McGraw-Hill Companies, Inc.
*S&P Rating" means, on any date of determination, the rating most recently
announced by S&P with respect to any senior unsecured, non-credit enhanced Debt of the
Borrower.
*SEC" means the United States Securities and Exchange Commission.
*Stated Expiry Date" means the stated expiration date of any Letter of Credit
issued or deemed to be issued pursuant to this Agreement; provided, ltowever, that no
Stated Expiry Date may be requested or included in any such Letter of Credit where (i)
such date would be later than the fifth Business Day preceding the Termination Date then
applicable to the Lender that is the LC Issuing Bank for such Letter of Credit, (ii) in the
case of any Letter of Credit that is not a Bond Letter of Credit, such date would be later
than one year after the date of issuance of such Leffer of Credit, or (iii) after taking into
account (A) the respective Termination Dates then in effect with respect to all Lenders on
the date of issuance or any extension of such Letter of Credit, and (B) the respective
Stated Expiry Dates then in effect with respect to all other Letters of Credit then
outstanding, the maximum amount of the LC Outstandings under all Letters of Credit
(including such Letter of Credit) then outstanding would exceed the total LC
Commitments scheduled to be in effect at any time during the period such Letter of
Credit is scheduled to remain in effect, as determined by the Administrative Agent.
"Subsidiary" of any Person means any corporation, partnership, joint venture,
limited liability company, trust or estate of which (or in which) more than 50o/o of (i) the
issued and outstanding capital stock having ordinary voting power to elect a majority of
the board of directors of such corporation (irrespective of whether at the time capital
stock of any other class or classes of such corporation shall or might have voting power
upon the occurrence of any contingency), (ii) the interest in the capital or profits of such
limited liability company, partnership or joint venture or (iii) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or more of
such Person's other Subsidiaries.
"Swingline Lender" means JPMCB, in its capacity as lender of Swingline Loans
hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.03.
"Swingline Outstandings" means, at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Outstandings with respect
to any Lender at any time shall be its Commitment Percentage of the total Swingline
Outstandings at such time.
"Taxes" means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed
by any Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
uTermination Date" means the earlier to occur of (i) March 27, 2018, or such
later date that may be established for any Lender from time to time pursuant to Section
2.06 hereof, and (ii) the date of termination in whole of the Commitments available to the
Borrower pursuant to Section 2.08 or 6.01.
"Trustee" means, for any series of Bonds, the Person acting in the capacity of
trustee for the holders of such Bonds under the Indenture pursuant to which such Bonds
were issued.
"Type" refers to the distinction between Loans bearing interest at the Base Rate
and Loans bearing interest at the Eurodollar Rate.
22
"U.5. Person" means any Person that is a "United States Person" as defined in
Section 7701(a)(30) of the Internal Revenue Code.
*U.5. Tax Compliance CertiJicate" has the meaning assigned to such term in
Section 2.18(gXiii).
"Withholding Agenf'means the Borrower and the Administrative Agent.
SECTION 1,02. Computation of Time Periods.
In this Agreement in the computation of periods of time from a specified date to a later
specified date, the word "from" means 'ofrom and including" and the words "to" andoountil" each
mean "to but excluding".
SECTION 1.03. Accounting Terms.
All accounting terms not specifically defined herein shall be construed in accordance
with generally accepted accounting principles as in effect from time to time (*GAAP'). If any
"Accounting Change" (as defined below) shall occur and such change results in a change in the
calculation of financial covenants, standards or terms in this Agreement, and either the Borrower
or the Required Lenders (through the Administrative Agent) shall request the same to the other
parties hereto in writing, the Borrower and the Administrative Agent shall enter into negotiations
to amend the affected provisions of this Agreement with the desired result that the criteria for
evaluating the Borrower's consolidated financial condition and results of operations shall be
substantially the same after such Accounting Change as if such Accounting Change had not been
made. Once such request has been made, until such time as such an amendment shall have been
executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all
financial covenants, standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Change had not occurred. "Accounting Change" means a
change in accounting principles required by the promulgation of any final rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants or, if applicable, the SEC (or successors thereto or
agencies with similar functions).
SECTION 1.04, Classffication of Loans and Borrowings.
For purposes of this Agreement, Loans may be classified and referred to by Class (e.9., a
o'Revolving Loan") or by Type (".9., a "Eurodollar Rate Loan") or by Class and Type (e.9., a
"Eurodollar Rate Revolving Loan"). Borrowings also may be classified and referred to by Class
(e.g., a "Revolving Borrowing") or by Type (e.9., a "Eurodollar Rate Borrowing") or by Class
and Type (e.g., a"Eurodollar Rate Revolving Borrowing").
SECTION 1.05. Other Interpretive Provisions.
As used herein, except as otherwise specified herein, (i) references to any Person include
its successors and assigns and, in the case of any Governmental Authority, any Person
succeeding to its functions and capacities; (ii) references to any Applicable Law include
amendments, supplements and successors thereto; (iii) references to specific sections, articles,
23
annexes, schedules and exhibits are to this Agreement; (iv) words importing any gender include
the other gender; (v) the singular includes the plural and the plural includes the singular; (vi) the
words "including", "include" and "includes" shall be deemed to be followed by the words
"without limitation"; (vii) captions and headings are for ease of reference only and shall not
affect the construction hereof; and (viii) references to any time of day shall be to New York City
time unless otherwise specified.
ARTICLE II
AMOUNTS AND TERMS OF THE EXTENSIONS OF CREDIT
SECTION 2.01. The Revolving Loans.
(a) Each Lender severally agrees, on the terms and conditions hereinafter set forth, to
make Revolving Loans to the Borrower from time to time on any Business Day during the period
from the date hereof until the Termination Date applicable to such Lender in an aggregate
outstanding amount not to exceed at any time such Lender's Available Commitment at such
time. Within the limits of each Lender's Commitment and as hereinabove and hereinafter
provided, including without limitation Section 2.01(b), the Borrower may request Revolving
Borrowings hereunder, and repay or prepay Revolving Loans pursuant to Section 2.14 and utilize
the resulting increase in the Available Commitments for further Extensions of Credit in
accordance with the terms hereof.
(b) In no event shall the Borrower be entitled to request or receive any Revolving
Borrowing that (i) would exceed the Available Commitments or (ii) would cause the Outstanding
Credits to exceed the Commitments.
SECTION 2.02, Making the Revolving Loans.
(a) Each Revolving Borrowing shall be in an amount not less than $1,000,000 (or, if
less, the Available Commitments at such time) or an integral multiple of $100,000 in excess
thereof and shall consist of Revolving Loans of the same Type made on the same day by the
Lenders ratably according to their respective Commitment Percentages. Each Revolving
Borrowing shall be made on notice, given not later than 12:00 noon on the third Business Day
prior to the date of the proposed Revolving Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Revolving Loans, or not later than 12:00 noon on the date of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Revolving Loans, by the Borrower
to the Administrative Agent, which shall give to each Lender prompt written notice thereof.
Each such notice of a Revolving Borrowing (a *Notice of Boruowing!') shall be by telephone,
confirmed immediately in writing or facsimile in substantially the form of Exhibit A hereto,
specifuing therein the requested (i) Borrowing Date for such Borrowing, (ii) Type of Revolving
Loans comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the
case of a Borrowing consisting of Eurodollar Rate Revolving Loans, the initial Interest Period
for each such Revolving Loan. Each Lender shall, before 2:00 P.M. on the applicable Borrowing
Date, make available for the account of its Applicable Lending Office to the Administrative
Agent at the Agent's Account, in same day funds, such Lender's ratable portion of the
Borrowing to be made on such Borrowing Date; provided, however, that Swingline Loans shall
be made as provided in Section 2.03. After the Administrative Agent's receipt of such funds and
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upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent
will promptly make such funds available to the Borrower in such manner as the Borrower shall
have specified in the applicable Notice of Borrowing.
(b) Anything in subsection (a) above to the contrary notwithstanding, (i) the
Borrower may not select Eurodollar Rate Revolving Loans for any Borrowing if the aggregate
amount of such Borrowing is less than $1,000,000 or if the obligation of the Lenders to make
Eurodollar Rate Revolving Loans shall then be suspended pursuant to Section 2.12(b),2.13 or
2.16, and (ii) Borrowings of more than one Type and Class may be outstanding at the same time;
provided, however,there shall be not more than l0 Borrowings at any one time outstanding.
(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In
the case of any Borrowing that the related Notice of Borrowing specifies is to comprise
Eurodollar Rate Revolving Loans, the Borrower shall indemnify each Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Revolving Loan to be made by such Lender as part of such
Borrowing when such Revolving Loan, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received written notice from a Lender
prior to any Borrowing Date or, in the case of a Base Rate Loan, prior to the time of Borrowing,
that such Lender will not make available to the Administrative Agent such Lender's Loan as part
of the Borrowing to be made on such Borrowing Date, the Administrative Agent may, but shall
not be required to, assume that such Lender has made such portion available to the
Administrative Agent on such Borrowing Date in accordance with subsection (a) of this Section
2.02, and the Administrative Agent may (but it shall not be required to), in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such Loan available to the Administrative Agent,
such Lender 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, the interest rate applicable at the time to
Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay to the Administrative Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Loan to be made by it as part of any
Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan
on the date of such Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
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SECTION 2.03. Swingline Loons.
(a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees
to make Swingline Loans to the Borrower from time to time on any Business Day during the
period from the date hereof until the Termination Date applicable to the Lender that is the
Swingline Lender, in an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding $50,000,000, or (ii)
the Outstanding Credits exceeding the Commitments; provided that the Swingline Lender shall
not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within
the limits as hereinabove and hereinafter provided, the Borrower may request Swingline
Borrowings hereunder, and repay or prepay Swingline Loans pursuant to Section 2.14 and utilize
the resulting increase in the Available Commitments for further Extensions of Credit in
accordance with the terms hereof. Each Swingline Loan shall be a Base Rate Loan and shall be
in an amount that is an integral multiple of $500,000 and not less than $1,000,000.
(b) To request a Swingline Loan, the Borrower shall notiff the Administrative Agent
of such request by telephone (confirmed by telecopy), not later than 2:00 P.M. on the day of a
proposed Swingline Loan. Each such notice shall be irrevocable and shall speciff the requested
date (which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received
from the Borrower. The Swingline Lender shall make each Swingline Loan available to the
Borrower by means of a credit to the general deposit account of the Borrower with the Swingline
Lender by 4:00 P.M. on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent
not later than 1:00 P.M. on any Business Day require the Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall
specifu the aggregate amount of Swingline Loans in which the Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Lender, speciffing in such notice such Lender's Commitment Percentage of such Swingline
Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account of the Swingline
Lender, such Lender's Commitment Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this subsection is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Swingline Loan shall utilize the
Commitment of each Lender by an amount equal to the amount of such participation. Each
Lender shall comply with its obligation under this subsection by wire transfer of immediately
available funds, in the same manner as provided in Section 2.02(a) with respect to Loans made
by such Lender (and Section2.02 shall apply, mutatis mutandis, to the payment obligations of
the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall notiff the Borrower
of any participations in any Swingline Loan acquired pursuant to this subsection, and thereafter
payments in respect of such Swingline Loan shall be made to the Administrative Agent and not
to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or
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other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to
the Administrative Agent; any such amounts received by the Administrative Agent shall be
promptly remitted by the Administrative Agent to the Lenders that shall have made their
payments pursuant to this subsection (to the extent of each applicable Lender's participation) and
to the Swingline Lender to the extent of its retained interest; provided that any such payment so
remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if
and to the extent such payment is required to be refunded to the Borrower for any reason. The
purchase of participations in a Swingline Loan pursuant to this subsection shall not relieve the
Borrower of any default in the payment thereof.
SECTION 2.04. Letters of Credit.
(a) Subject to the terms and conditions hereof, each LC Issuing Bank agrees to issue
Letters of Credit from time to time for the account of the Borrower (or to extend the stated
maturity thereof or to amend or modify the terms thereof), in an aggregate stated amount not
exceeding such LC Issuing Bank's Fronting Commitment, up to a maximum aggregate stated
amount for all Letters of Credit at any one time outstanding equal to the LC Commitment
Amount. With respect to Letters of Credit that are not Bond Letters of Credit, such issuance
shall occur on not less than two Business Days' prior notice thereof by delivery of (x) a Request
for Issuance for such Leffer of Credit to the Administrative Agent and the LC Issuing Bank for
such Letter of Credit, and (y) such LC Issuing Bank's standard form of Letter of Credit
application for the requested Letter of Credit (including, for direct pay Letters of Credit, any
reimbursement agreement or other standard form required by such LC Issuing Bank) to the letter
of credit department of such LC Issuing Bank for the account of the Borrower. With respect to
each Bond Letter of Credit, such issuance shall occur after receipt of (x) a Request for Issuance
for such Bond Letter of Credit to the Administrative Agent and the LC Issuing Bank for such
Bond Letter of Credit, (y) the Bond LC Reimbursement Agreement for such Bond Letter of
Credit, as may be required by the LC Issuing Bank for such Bond Letter of Credit, and (z) the
documents required pursuant to Section 3.03 and such Bond LC Reimbursement Agreement;
provided that in the case of any Request for Issuance for an extension of an outstanding Bond
Letter of Credit, such Request for Issuance shall be delivered to the Administrative Agent and
the applicable LC Issuing Bank at least 90 days prior to the then-current Stated Expiry Date of
such Bond Letter of Credit. Each Letter of Credit shall be issued in a form acceptable to the
applicable LC Issuing Bank. Each Request for Issuance shall speciff (i) the identity of the
applicable LC Issuing Bank, (ii) the date (which shall be a Business Day) of issuance of such
Letter of Credit (or the date of effectiveness of such extension, modification or amendment) and
the Stated Expiry Date thereoq (iii) the proposed stated amount of such Letter of Credit (which
amount (A) shall not be less than $100,000 and (B) may be subject to any automatic increase and
reinstatement provisions), (iv) the name and address of the beneficiary of such Letter of Credit
and (v) a statement of drawing conditions applicable to such Letter of Credit. If such Request for
Issuance relates to an amendment or modification of a Lefter of Credit, it shall be accompanied
by the consent of the beneficiary of the Letter of Credit thereto (except in the case of an
extension of the Stated Expiry Date of any Bond Letter of Credit where no consent of the
beneficiary is required for such extension). If so requested by the Borrower, a Letter of Credit
that is not a Bond Letter of Credit may provide that it is automatically renewable for additional
one-year periods if subject to an ability of the applicable LC Issuing Bank to not renew by giving
27
notice of the same to the beneficiary of such Letter of Credit. Each Request for Issuance shall be
irrevocable unless modified or rescinded by the Borrower prior to the issuance by the applicable
LC Issuing Bank of the requested Letter of Credit or prior to the effectiveness of the requested
extension, modification or amendment to a Letter of Credit, as applicable.
Upon fulfillment of the applicable conditions precedent and the other
requirements set forth herein, the relevant LC Issuing Bank shall issue (or extend, amend or
modiff) such Letter of Credit and provide notice and a copy thereof to the Administrative Agent,
which shall promptly furnish copies thereof to the Lenders that shall so request; p rovided that the
LC Issuing Bank shall not issue or amend any Letter of Credit if such LC Issuing Bank has
received notice from the Administrative Agent that the applicable conditions precedent have not
been satisfied. Upon each issuance of a Letter of Credit by any LC Issuing Bank, each Lender
shall be deemed, without further action by any party hereto, to have irrevocably and
unconditionally purchased from such LC Issuing Bank without recourse a participation in such
Letter of Credit equal to such Lender's Commitment Percentage of the aggregate amount
available to be drawn under such Leffer of Credit. Upon each modification of a Letter of Credit
by any LC Issuing Bank which modifies the aggregate amount available to be drawn under such
Letter of Credit, such LC Issuing Bank and the Lenders shall be deemed, without further action
by any party hereto, to have purchased or sold, as appropriate, participations in such Letter of
Credit such that each Lender's participation in such Letter of Credit shall equal such Lender's
Commitment Percentage of such modified aggregate amount available to be drawn under such
Letter of Credit. Each Letter of Credit shall utilize the Commitment of each Lender in an
amount equal to the amount of such participation. Without limiting the foregoing, any LC
Issuing Bank that issues a Bond Letter of Credit agrees that (i) all Bonds pledged to such LC
Issuing Bank pursuant to any applicable Pledge Agreement or otherwise registered in the name
of such LC Issuing Bank pursuant to the other Related Documents will be held for the benefit of
such LC Issuing Bank and the Lenders and (ii) to apply and/or remit all proceeds from the sale or
remarketing of such Bonds in accordance with Section 2.17(t).
(b) The Borrower may from time to time appoint one or more additional Lenders
(with the consent of any such Lender, which consent may be withheld in the sole discretion of
each Lender) to act, either directly or through an Affiliate of such Lender, as an LC Issuing Bank
hereunder. Any such appointment and the terms thereof shall be evidenced in a separate written
agreement executed by the Borrower and the relevant LC Issuing Bank, a copy of which
agreement shall be delivered by the Borrower to the Administrative Agent. The Administrative
Agent shall give prompt notice of any such appointment to the other Lenders. Upon such
appointment, if and for so long as such Lender shall have any obligation to issue any Letter of
Credit hereunder or any Letter of Credit issued by such Lender shall remain outstanding, such
Lender shall be deemed to be, and shall have all the rights and obligations of an "LC Issuing
Bank" under this Agreement.
(c) No Letter of Credit shall be requested, issued or modified hereunder if, after the
issuance or modification thereof, (i) the Outstanding Credits would exceed the Commitments
then scheduled to be in effect until the latest Termination Date, (ii) that portion of the LC
Outstandings arising from Letters of Credit issued by an LC Issuing Bank would exceed the
amount of such LC Issuing Bank's Fronting Commitment or (iii) the LC Outstandings would
exceed the LC Commitment Amount. No LC Issuing Bank shall be under any obligation to issue
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any Letter of Credit if any order, judgment or decree of any Governmental Authority shall by its
terms purport to enjoin or restrain such LC Issuing Bank from issuing such Letter of Credit, or
any law applicable to such LC Issuing Bank or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over such LC Issuing Bank
shall prohibit, or request that the LC Issuing Bank refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon the LC Issuing Bank with
respect to such Letter of Credit any restriction, reserve or capital requirement (for which the LC
Issuing Bank is not otherwise compensated or required to be compensated hereunder), which
restriction, reserve or capital requirement was not in effect on the date hereof, or shall impose
upon the LC Issuing Bank any loss, cost or expense (not reimbursed or required to be
reimbursed) that was not applicable on the date hereof and that the LC Issuing Bank in good
faith deems material to it.
(d) The Borrower hereby agrees to pay to the Administrative Agent for the account of
each LC Issuing Bank and each Lender that has funded its participation in the reimbursement
obligations of the Borrower pursuant to subsection (e) below, on demand made by such LC
Issuing Bank to the Borrower, on and after each date on which such LC Issuing Bank shall pay
any amount under any Letter of Credit issued by such LC Issuing Bank, a sum equal to the
amount so paid (the "Reimbursemenl Amount"). Any Reimbursement Amount shall bear
interest, payable on demand, from the date so paid by such LC Issuing Bank until repayment to
such LC Issuing Bank in full at a fluctuating interest rate per annum equal to the interest rate
applicable to Base Rate Loans plus, if any amount paid by such LC Issuing Bank under a Letter
of Credit is not reimbursed by the Borrower within three Business Days, 2Yo. The Borrower may
satisff its obligation hereunder to repay the Reimbursement Amount by requesting a Borrowing
under Section 2.02 (and which Borrowing shall be subject to the conditions in Section 2.02) in
the amount of such Reimbursement Amount, and the proceeds of such Borrowing may be
applied to satisff the Borrower's obligations to such LC Issuing Bank or the Lenders, as the case
may be.
(e) If any LC Issuing Bank shall not have been reimbursed in full for any
Reimbursement Amount in respect of a Leffer of Credit issued by such LC Issuing Bank on the
date of such payment, such LC Issuing Bank shall give the Administrative Agent and each
Lender prompt notice thereof (an "LC Payment Notice") no later than 12:00 noon on the
Business Day immediately succeeding the date of such payment by such LC Issuing Bank. Each
Lender shall fund the participation that such Lender purchased pursuant to Section 2.04(a) by
paying to the Administrative Agent for the account of such LC Issuing Bank an amount equal to
such Lender's Commitment Percentage of such Reimbursement Amount paid by such LC
Issuing Bank, plus interest on such amount at a rate per annum equal to the Federal Funds Rate,
for the first three days from the date of the payment by such LC Issuing Bank, and, thereafter,
until the date of payment to such LC Issuing Bank by such Lender, at a rate of interest equal to
the rate applicable to Base Rate Loans. Each such payment by a Lender shall be made not later
than 3:00 P.M. on the later to occur of (i) the Business Day immediately following the date of
such payment by such LC Issuing Bank and (ii) the Business Day on which such Lender shall
have received an LC Payment Notice from such LC Issuing Bank. Each Lender's obligation to
make each such payment to the Administrative Agent for the account of such LC Issuing Bank
shall be several and shall not be affected by the occurrence or continuance of a Default or the
failure of any other Lender to make any payment under this Section 2.04(e). Each Lender further
29
agrees that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(D The failure of any Lender to make any payment to the Administrative Agent for
the account of any LC Issuing Bank in accordance with subsection (e) above shall not relieve any
other Lender of its obligation to make payment, but no Lender shall be responsible for the failure
of any other Lender. If any Lender (a"non-performing Lender") shall fail to make any payment
to the Administrative Agent for the account of any LC Issuing Bank in accordance with
subsection (e) above, then for so long as such failure shall continue, such LC Issuing Bank shall
be deemed, for purposes of Sections 6.01 and 8.01 hereof, to be a Lender owed a Borrowing in
an amount equal to the outstanding principal amount due and payable by such non-performing
Lender to the Administrative Agent for the account of such LC Issuing Bank pursuant to
subsection (e) above. Any non-performing Lender and the Borrower (without waiving any claim
against such non-performing Lender for such non-performing Lender's failure to fund its
participation in the reimbursement obligations of the Borrower under subsection (e) above)
severally agree to pay to the Administrative Agent for the account of such LC Issuing Bank
forthwith on demand such amount, together with interest thereon for each day from the date such
non-performing Lender would have funded its participation had it complied with the
requirements of subsection (e) above until the date such amount is paid to the Administrative
Agent at (i) in the case of the Borrower, the interest rate applicable at the time to Base Rate
Loans plus, if any amount paid by such LC Issuing Bank under a Letter of Credit is not
reimbursed by the Borrower within three Business Days, 2o/o, in accordance with Section
2.04(d), and (ii) in the case of such non-performing Lender, the Federal Funds Rate, for the first
three days and, thereafter, at a rate of interest equal to the rate applicable to Base Rate Loans.
(g) The payment obligations of each Lender under Section 2.04(e) and of the
Borrower under this Agreement in respect of any payment under any Letter of Credit shall be
absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any other
agreement or instrument relating thereto or to such Letter of Credit;
(ii) any amendment or waiver of, or any consent to departure from, the terms
of this Agreement or such Letter of Credit;
(iii) the existence of any claim, set-off, defense or other right that the Borrower
may have at any time against any beneficiary, or any transferee, of such Letter of Credit
(or any Persons for whom any such beneficiary or any such transferee may be acting),
any LC Issuing Bank, or any other Person, whether in connection with this Agreement,
the transactions contemplated hereby, thereby or by such Letter of Credit, or any
unrelated transaction;
(iv) any statement or any other document presented under such Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
30
(v) payment in good faith by any LC Issuing Bank under the Letter of Credit
issued by such LC Issuing Bank against presentation of a draft or certificate that does not
comply with the terms of such Letter of Credit;
(vi) the use that may be made of any Letter of Credit by, or any act or
omission of, the beneficiary of any Letter of Credit (or any Person for which the
beneficiary may be acting); or
(vii) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing.
(h) Without limiting any other provision of this Section 2.04, for purposes of this
Section 2.04 any LC Issuing Bank may rely upon any oral, telephonic, telegraphic, facsimile,
electronic, written or other communication believed in good faith to have been authorized by the
Borrower, whether or not given or signed by an authorized Person of the Borrower.
(i) The Borrower assumes all risks of the acts and omissions of any beneficiary or
transferee of any Letter of Credit. Neither any LC Issuing Bank, the Lenders nor any of their
respective officers, directors, employees, agents or Afflrliates shall be liable or responsible for,
and the Borrower's reimbursement obligation in respect of any Letter of Credit shall not be
affected by, (i) the use that may be made of such Letter of Credit or any acts or omissions of any
beneficiary or transferee thereof in connection therewith; (ii) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents should prove
to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by any LC
Issuing Bank against presentation of documents that do not comply with the terms of such Letter
of Credit, including failure of any documents to bear any reference or adequate reference to such
Letter of Credit; (iv) any dispute between or among the Borrower, any of its Affiliates, the
beneficiary of any Leffer of Credit or any financing institution or other party to whom any Letter
of Credit may be transferred or any claims or defenses whatsoever of the Borrower or of its
Affiliates against the beneficiary of any Letter of Credit or any such transferee; (v) any error,
omission, interruption or delay in transmission, dispatch or delivery of any message or advice,
however transmitted, in connection with any Letter of Credit; or (vi) any other circumstances
whatsoever in making or failing to make payment under such Letter of Credit, except that the
Borrower and each Lender shall have the right to bring suit against each LC Issuing Bank, and
each LC Issuing Bank shall be liable to the Borrower and any Lender, to the extent of any direct,
as opposed to consequential, damages suffered by the Borrower or such Lender that the
Borrower or such Lender proves, in a court of competent jurisdiction by final and nonappealable
judgment, were caused by such LC Issuing Bank's willful misconduct or gross negligence. In
furtherance and not in limitation of the foregoing, each LC Issuing Bank may accept sight drafts
and accompanying certificates presented under the Letter of Credit issued by such LC Issuing
Bank that appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and payment against such documents
shall not constitute willful misconduct or gross negligence by such LC Issuing Bank.
Notwithstanding the foregoing, no Lender shall be obligated to indemniS, the Borrower for
damages caused by any LC Issuing Bank's willful misconduct or gross negligence.
3l
(j) In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, an LC Issuing Bank relating to any Letter of
Credit issued by such LC Issuing Bank, the terms and conditions of this Agreement shall control.
(k) The Borrower hereby represents and warrants that those letters of credit more
particularly described on Schedule III (collectively, the "Existing Bond Letters of Credit") (i)
constitute "Leffers of Credit" that were previously issued for the account of the Borrower in
compliance with the provisions of the Existing Credit Agreement and the applicable
reimbursement agreement, including the conditions for such issuance set forth therein, and (ii)
remain outstanding as of the date of this Agreement in the amounts and subject to the expiration
dates set forth on such Schedule III. Upon satisfaction of all conditions precedent set forth in
Section 3.01 and in clauses (i) and (ii) of Section 3.02,allsuch Existing Bond Letters of Credit
shall be deemed to be "Bond Letters of Credit" and o'Letters of Credit" issued by the respective
LC Issuing Banks as shown on Schedule III pursuant to this Section 2.04 on the date of this
Agreement for all purposes of this Agreement and the other Loan Documents.
(l) Any LC Issuing Bank may resign at any time by giving written notice thereof to
the Administrative Agent, Lenders, the other LC Issuing Banks (if any) and the Borrower,
provided that (i) there are no Letters of Credit outstanding with respect to such LC Issuing Bank
at such time or (ii) unless the Borrower shall have agreed otherwise, another Lender or Affiliate
thereof reasonably acceptable to the Borrower has agreed to serve as an LC Issuing Bank and
commits in writing to issue one or more Letters of Credit in an aggregate amount at least equal to
those of the resigning LC Issuing Bank. After the resignation of an LC Issuing Bank hereunder,
such resigning LC Issuing Bank shall remain a par:ty hereto and shall continue to have all the
rights and obligations of an LC Issuing Bank under this Agreement and the other Loan
Documents with respect to Letters of Credit issued by it prior to such resignation, but shall not be
required to issue additional Letters of Credit or to extend, renew or increase any existing Letter
of Credit. Upon any such resignation, the Borrower and the resigning LC Issuing Bank may
agree to replace or terminate the outstanding Letters of Credit issued by such LC Issuing Bank
and to designate one or more Lenders as LC Issuing Banks to replace such LC Issuing Bank.
SECTION 2.05. Fees.
(a) The Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee on the aggregate unused amount of such Lender's Commitment (i)
from the date hereof, in the case of each Initial Lender, and (ii) from the effective date specified
in the Assignment and Assumption pursuant to which it became a Lender, in the case of each
other Lender, in each case until the latest Termination Date applicable to such Lender, payable
quarterly in arrears on the last day of each March, June, September and December, commencing
June 30, 2013, and ending on such Termination Date. The commitment fee for any period will
be equal to the Commitment Fee Rate in effect from time to time during such period, times an
amount equal to the Commitments minus the aggregate principal amount of Loans outstanding
during such period provided, that for purposes of calculating the commitment fee, Swingline
Loans shall not be considered outstanding Loans.
(b) The Borrower agrees to pay the fees payable by the Borrower
and on such terms as set forth in the Fee Letters.
such amounts
(c) The Borrower agrees to pay to the Administrative Agent for the account of each
Lender a fee (the "LC Fee") on the average daily aggregate principal amount of each such
Lender's Commitment Percentage of the LC Outstandings (i) from the date hereof, in the case of
each Initial Lender, and (ii) from the effective date specified in the Assignment and Assumption
pursuant to which it became a Lender, in the case of each other Lender, in each case until the
later to occur of (x) the Termination Date applicable to such Lender and (y) the date on which no
Letters of Credit are outstanding, payable on the last day of each March, June, September and
December (commencing on June 30, 2013), and on such later date, at a rate equal at all times to
the Applicable Margin in effect from time to time for Eurodollar Rate Revolving Loans.
SECTION 2.06, Extension of the Terminotion Date.
(a) Not earlier than 60 days prior to, nor later than 60 days after each anniversary of
the date hereof the Borrower may request by written notice made to the Administrative Agent
(which shall promptly notiff the Lenders thereof) a one-year extension of the Termination Date
applicable to each Lender. Each Lender shall notifu the Administrative Agent by the date
specified by the Administrative Agent (which date shall be a Business Day and shall not be less
than 15 days prior to, nor more than 30 days prior to, the Extension Effective Date) that either
(A) such Lender declines to consent to extending the Termination Date or (B) such Lender
consents to extending the Termination Date. Any Lender not responding within the above time
period shall be deemed to have declined to extend the Termination Date. The consent of a
Lender to any such extension shall be in the sole discretion of such Lender. The Administrative
Agent shall, after receiving the notifications from all of the Lenders or the expiration of such
period, whichever is earlier, notiff the Borrower and the Lenders of the results thereof. The
Borrower may request no more than two extensions pursuant to this Section.
(b) If any Lender declines, or is deemed to have declined, to consent to such request
for extension (each a "Declining Lender"), the Borrower shall have the right to replace such
Declining Lender in accordance with Section 2.20(b). Any Lender replacing a Declining Lender
shall be deemed to have consented to such request for extension (regardless of when such
replacement is effective) and shall not be deemed to be a Declining Lender.
(c) If the Required Lenders have consented to the extension of the Termination Date,
the Termination Date of each Lender that consented to the extension shall be extended to the date
that is one year after such Lender's then-effective Termination Date, effective as of the date to be
determined by the Administrative Agent and the Borrower (the "Exlension Effeclive Date"). On
or prior to the Extension Effective Date, the Borrower shall deliver to the Administrative Agent,
in form and substance reasonably satisfactory to the Administrative Agent (i) the resolutions of
the Borrower authorizing such extension and all Governmental Approvals (if any) required in
connection with such extension, certified as being in effect as of the Extension Effective Date
and the related incumbency certificate of the Borrower, (ii) a favorable opinion of counsel for the
Borrower as to such matters as any Lender through the Administrative Agent may reasonably
request and (iii) a certificate of the Borrower stating that on and as of such Extension Effective
Date, and after giving effect to the extension to be effective on such date, all conditions
aaJJ
precedent to an Extension of Credit under Section 3.02 are satisfied. On each Extension
Effective Date, each Declining Lender shall have received payment in full of the principal
amount of all Loans outstanding owing to such Declining Lender and all interest thereon and all
fees and other amounts (including, without limitation, any amounts payable pursuant to Section
8.0a(c)) payable to such Declining Lender accrued through such Extension Effective Date.
Promptly following such Extension Effective Date, the Administrative Agent shall distribute an
amended Schedule I to this Agreement (which shall thereafter be incorporated into this
Agreement) to reflect any changes in the Lenders, the Commitments and each Lender's
Commitment Percentage as of such Extension Effective Date.
(d) The Swingline Lender and each LC Issuing Bank may, in its sole discretion, elect
not to serve in such capacity following any extension of the Termination Date; provided that (i)
the Borrower and the Administrative Agent may appoint a replacement for such resigning
Swingline Lender or LC Issuing Bank, as the case may be, and (ii) whether such replacement is
appointed shall not otherwise affect the extension of the Termination Date.
SECTION 2.07. Increase of the Commitments.
(a) The Borrower may, from time to time, request by written notice to the
Administrative Agent to increase the Commitments by a maximum aggregate amount for all
such increases of up to $200,000,000, by designating one or more Lenders or other financial
institutions (that will become Lenders), in each case, reasonably acceptable to the Administrative
Agent and acceptable to the Swingline Lender and each LC Issuing Bank, in their respective sole
discretion, that agree to accept all or a portion of such additional Commitments (each a
o' Designated Lender").
(b) The Administrative Agent shall promptly notify the Designated Lenders of the
Borrower's request pursuant to subsection (a) above. Each Designated Lender shall noti$ the
Administrative Agent by the date specified by the Administrative Agent (which date shall be a
Business Day) that either (A) such Designated Lender declines to accept its additional
Commitments or (B) such Designated Lender consents to accept the offered Commitments. Any
Designated Lender not responding on or prior to the date specified by the Administrative Agent
shall be deemed to have declined to accept the offered Commitments. The Administrative Agent
shall, after receiving the notifications from all of the Designated Lenders or following the date
specified in the notice to such Designated Lenders, whichever is earlier, notifu the Borrower and
the Lenders of the results thereof and the effective date of any additional Commitments. The
effectiveness of such additional Commitments shall be subject to the condition precedent that the
Borrower shall have delivered to the Administrative Agent (i) the resolutions of the Borrower
authorizing such additional Commitments and all Governmental Approvals (if any) required in
connection with such additional Commitments, certified as being in effect as of the effective date
of such additional Commitments, (ii) a favorable opinion of counsel for the Borrower as to such
matters as any Lender through the Administrative Agent may reasonably request and (iii) a
certificate signed by a duly authorized officer of the Borrower, dated as of the effective date of
such additional Commitments, stating that all conditions precedent to an Extension of Credit
have been satisfied on and as ofsuch effective date.
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(c) Promptly following the effective date of any Commitment increase pursuant to
this Section 2.07, (i) the Administrative Agent shall distribute an amended Schedule I to this
Agreement (which shall thereafter be incorporated into this Agreement) to reflect any changes in
Lenders, the Commitments and each Lender's Commitment Percentage as of such effective date
and (ii) the Borrower shall prepay the outstanding Revolving Borrowings (if any) in full, and
shall simultaneously make new Revolving Borrowings hereunder in an amount equal to such
prepayment, so that, after giving effect thereto, the Revolving Borrowings are held ratably by the
Lenders in accordance with their respective Commitments (after giving effect to such
Commitment increase). Prepayments made under this clause (c) shall not be subject to the notice
requirements of Section 2.14.
(d) Notwithstanding any provision contained herein to the contrary, from and after
the date of any Commitment increase and the making of any Loans on such date pursuant to
clause (cXii) above, all calculations and payments of fees and of interest on the Loans shall take
into account the actual Commitment of each Lender and the principal amount outstanding of
each Loan made by such Lender during the relevant period of time.
SECTION 2.08. Terminotion or Reduction of the Commitments.
(a) The Borrower shall have the right, upon at least three Business Days' notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the Available
Commitments, provided that (i) each partial reduction shall be in the aggregate amount of
$10,000,000 or an integral multiple of $5,000,000 in excess thereof and (ii) no such termination
or reduction shall be made that would reduce the aggregate Commitments to an amount less than
the Outstanding Credits on the date of such termination or reduction. Subject to the foregoing,
any reduction of the Commitments to an amount below $600,000,000 shall also result in a
reduction of the LC Commitment Amount to the extent of such deficit (and if such reduction
would cause the LC Commitment Amount to be less than the aggregate Fronting Commitments,
with automatic reductions in the amount of each Fronting Commitment ratably in proportion to
the amount of such reduction of the LC Commitment Amount unless, in the case of any LC
Issuing Bank, such LC Issuing Bank consents otherwise). Each such notice of termination or
reduction shall be irrevocable; provided, however, that a notice of termination delivered pursuant
to this Section 2.08 may state that such notice is conditioned upon the effectiveness of other
credit facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the effective date specified in the notice of termination) if
such condition is not satisfied.
(b) The Borrower may terminate the unused amount of the Commitment of any
Lender that is a Defaulting Lender upon not less than three Business Days' prior notice to the
Administrative Agent (which shall promptly notiff the Lenders thereof), and in such event the
provisions of Section 2.21(a)(ii) will apply to all amounts thereafter paid by the Borrower for the
account of such Defaulting Lender under this Agreement (whether on account of principal,
interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have
occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or
release of any claim the Borrower, the Administrative Agent, any LC Issuing Bank, the
Swingline Lender or any Lender may have against such Defaulting Lender.
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(c) The Commitment of each Lender shall automatically terminate on the
Termination Date applicable to such Lender as provided in Section 2.06.
(d) Once terminated, a Commitment or any portion thereof may not be reinstated.
SECTION 2.09. Repayment of Loans.
(a) The Borrower shall repay to (i) the Administrative Agent for the account of each
Lender on the Termination Date applicable to such Lender the aggregate principal amount of the
Revolving Loans made to the Bonower by such Lender then outstanding and (ii) to the
Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the
latest Termination Date (or such earlier Termination Date beyond which the Swingline Lender
has elected, pursuant to Section 2.06(d), not to act in such capacity), and the tenth Business Day
after such Swingline Loan is made; provided that on each date that a Revolving Borrowing is
made, the Borrower shall repay all Swingline Loans then outstanding. Without limiting the
foregoing, the Borrower shall also repay (to the Administrative Agent for the account of the
Lenders) Revolving Loans and (to the Swingline Lender) Swingline Loans, in each ease, to the
extent and at the time required pursuant to the terms of any applicable Governmental Approval
relating to the Borrower's ability to incur Debt.
(b) If at any time the aggregate principal amount of Outstanding Credits exceeds the
Commitments, the Borrower shall pay or prepay so much of the Borrowings and/or Cash
Collateralize the LC Outstandings as shall be necessary in order that the Outstanding Credits
minus the principal amount of Cash Collateral securing the LC Outstandings will not exceed the
Commitments.
SECTION 2.10. Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and interest payable and paid to
such Lender from time to time under this Agreement.
(b) The Administrative Agent shall maintain accounts in which it will record (i) the
amount of each Loan made hereunder, the Class and Type of each Loan made and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(c) The entries made in the accounts maintained pursuant to subsections (a) and (b) of
this Section 2.10 shall, to the extent permiued by Applicable Law, be prima facie evidence of the
existence and amounts of the obligations therein recorded; provided, however, that the failure of
any Lender or the Administrative Agent to maintain such accounts or any error therein shall not
in any manner affect the obligations of the Borrower to repay the Loans and interest thereon in
accordance with their terms.
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(d) Any Lender may request that any Loans made by it be evidenced by one or more
promissory notes. In such event, the Borrower shall prepare, execute and deliver to such Lender
one or more promissory notes payable to the order of such Lender (or, if requested by such
Lender, to such Lender and its assignees) and in a form reasonably satisfactory to the
Administrative Agent. Thereafter, the Loans evidenced by such promissory notes and interest
thereon shall at all times (including after assignment pursuant to Section 8.07) be represented by
one or more promissory notes in such form payable to the order of the payee named therein.
SECTION 2.11. Interest on Loans.
The Borrower shall pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount shall be paid in full, at the following rates per
annum:
(a) Base Rate Loans. During such periods as such Loan is a Base Rate Revolving
Loan or a Swingline Loan, a rate per annum equal at all times to the sum of (x) the Base Rate
plus (y) the Applicable Margin for Base Rate Loans in effect from time to time, payable (A) in
the case of Base Rate Revolving Loans, in arrears quarterly on the last day of each March, June,
September and December during such periods and on the date such Base Rate Loan shall be
Converted or paid in fuIl, and (B) in the case of Swingline Loans, on the date such Swingline
Loan is required to be paid in full as provided in Section 2.09.
(b) Eurodollar Rote Revolving Loans. During such periods as such Revolving Loan
is a Eurodollar Rate Revolving Loan, a rate per annum equal at all times during each Interest
Period for such Revolving Loan to the sum of (x) the Eurodollar Rate for such Interest Period for
such Revolving Loan plus (y) the Applicable Margin for Eurodollar Rate Revolving Loans in
effect from time to time, payable in arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest Period and on the date such
Eurodollar Rate Revolving Loan shall be Converted or paid in full.
(c) Additional Interest on Eurodollar Rate Revolving Loans. The Bomower shall
pay to each Lender, so long as such Lender shall be required under regulations ofthe Board of
Governors of the Federal Reserve System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocuffency Liabilities, additional interest on the unpaid principal
amount of each Eurodollar Rate Revolving Loan of such Lender, from the date of such
Revolving Loan until such principal amount is paid in full, at an interest rute per annum equal at
all times to the remainder obtained by subtracting (i) the Eurodollar Rate for the Interest Period
for such Revolving Loan from (ii) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to l00o/o minus the Eurodollar Rate Reserve Percentage of such Lender for such
Interest Period, payable on each date on which interest is payable on such Revolving Loan. Such
additional interest shall be determined by such Lender and notified to the Borrower through the
Administrative Agent.
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SECTION 2.12. Interest Rate Determination.
(a) The Administrative Agent shall give prompt notice to the Borrower and the
Lenders of the applicable interest rate determined by the Administrative Agent for purposes of
Section 2.ll(a) or (b), and, if applicable, the rate for the purpose of determining the applicable
interest rate under Section 2.ll(c).
(b) If, with respect to any Eurodollar Rate Revolving Loans, (i) the Required Lenders
notiff the Administrative Agent that the Eurodollar Rate for any lnterest Period for such
Revolving Loans will not adequately reflect the cost to such Required Lenders of making,
funding or maintaining their respective Eurodollar Rate Revolving Loans for such Interest
Period, or (ii) the Administrative Agent determines that adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar
Rate, the Administrative Agent shall forthwith so notify the Borrower and the Lenders,
whereupon (A) each Eurodollar Rate Revolving Loan will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Revolving Loan, and (B) the
obligation of the Lenders to make, or to Convert Revolving Loans into, Eurodollar Rate
Revolving Loans shall be suspended until the Administrative Agent shall notiff the Borrower
and the Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.13. Conversion of Revolving Loons.
(a) Voluntary. The Borrower may on any Business Day, upon notice given to the
Administrative Agent not later than l2:00 noon on the third Business Day prior to the date of the
proposed Conversion and subject to the provisions of Sections 2.12 and 2.16, Convert all or any
part of Revolving Loans of one Type comprising the same Borrowing into Revolving Loans of
the other Type or of the same Type but having a new Interest Period; provided, however, that any
Conversion of Eurodollar Rate Revolving Loans into Base Rate Revolving Loans shall be made
only on the last day of an Interest Period for such Eurodollar Rate Revolving Loans, any
Conversion of Base Rate Revolving Loans into Eurodollar Rate Revolving Loans shall be in an
amount not less than the minimum amount specified in Section 2.02(b) and no Conversion of any
Revolving Loans shall result in more separate Borrowings than permitted under Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions specified above, speciff (i) the
date of such Conversion, (ii) the Revolving Loans to be Converted, and (iii) if such Conversion
is into Eurodollar Rate Revolving Loans, the duration of the initial Interest Period for each such
Revolving Loan. Each notice of Conversion shall be irrevocable and binding on the Borrower.
This Section shall not apply to Swingline Loans, which may not be Converted.
(b) Mandatory.
(i) If the Borower shall fail to select the Type of any Revolving Loan or the
duration of any Interest Period for any Borrowing comprising Eurodollar Rate Revolving
Loans in accordance with the provisions contained in the definition of "Interest Period"
in Section l.0l and Section 2.13(a), or if any proposed Conversion of a Borrowing that is
to comprise Eurodollar Rate Revolving Loans upon Conversion shall not occur as a result
of the circumstances described in subsection (c) below, or if an Event of Default has
occurred and is continuing and Eurodollar Rate Revolving Loans are outstanding, the
38
Administrative Agent will forthwith so notiff the Borrower and the Lenders, and (i) such
Revolving Loans will automatically, on the last day of the then existing Interest Period
therefor, Convert into Base Rate Loans and (ii) the obligation of the Lenders to make, or
to Convert Revolving Loans into, Eurodollar Rate Revolving Loans shall be suspended.
(ii) On the date on which the aggregate unpaid principal amount of Eurodollar
Rate Revolving Loans comprising any Borrowing shall be reduced, by payment or
prepayment or otherwise, to less than $10,000,000, such Revolving Loans shall
automatically Convert into Base Rate Revolving Loans.
(c) Failure to Converl. Each notice of Conversion given pursuant to subsection (a)
above shall be irrevocable and binding on the Borrower. In the case of any Borrowing that is to
comprise Eurodollar Rate Revolving Loans upon Conversion, the Borrower agrees to indemniff
each Lender against any loss, cost or expense incurred by such Lender if, as a result of the failure
of the Borrower to satisff any condition to such Conversion (including, without limitation, the
occurrence of any Default), such Conversion does not occur. The Borrower's obligations under
this subsection (c) shall survive the repayment of all other amounts owing to the Lenders and the
Administrative Agent under this Agreement and the termination of the Commitments.
(d) Limitation on Certoin Conversions Notwithstanding any other provision of this
Agreement to the contrary, the Borrower may not borrow Revolving Loans at the Eurodollar
Rate or Convert Revolving Loans resulting in Eurodollar Rate Revolving Loans at any time an
Event of Default has occurred and is continuing.
SECTION 2.14. Optional Prepayments of Loans.
The Borrower may prepay Loans, (i) upon at least two Business Days' notice, in the case
of Eurodollar Rate Revolving Loans, and (ii) upon notice not later than 12:00 noon on the date of
prepayment, in the case of Base Rate Revolving Loans and Swingline Loans, to the
Administrative Agent (and, in the case of a Swingline Loan, the Swingline Lender) stating the
proposed date and aggregate principal amount of the prepayment, and, if such notice is given, the
Borrower shall prepay the outstanding principal amount of the Loans comprising part of the
same Borrowing in whole or ratably in part, without penalty, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that (x) each
partial prepayment shall be in an aggregate principal amount of $1,000,000 or an integral
multiple of $100,000 in excess thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Loan, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 8.04(c).
SECTION 2.15. Increased Costs.
(a) Increased Costs Generally. lf any Change in Law shall:
(i) impose, modiff or deem applicable any reserve, assessment, special
deposit, compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in by, any Lender
(except any reserve requirement reflected in the Eurodollar Rate Reserve Percentage) or
any LC Issuing Bank;
39
(ii) other than (A) Indemnified Taxes and (B) Excluded Taxes, subject any
Recipient to any Taxes on, or change the basis of taxation of payments to any Recipient
in respect ol its loans, loan principal, letters of credit, commitments, or other obligations,
or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or any LC Issuing Bank or the London interbank
market any other condition, cost or expense (other than Taxes) affecting this Agreement
or Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other
Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its
obligation to make any such Loan, or to increase the cost to such Lender, such LC Issuing Bank
or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the
amount of any sum received or receivable by such Lender, LC Issuing Bank or other Recipient
hereunder (whether of principal, interest or any other amount) then, upon the good faith request
of such Lender, LC Issuing Bank or other Recipient, the Borrower will pay to such Lender, LC
Issuing Bank or other Recipient, as the case may be, such additional amount or amounts as will
compensate such Lender, LC Issuing Bank or other Recipient, as the case may be, for such
additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or LC Issuing Bank determines that any
Change in Law affecting such Lender or LC Issuing Bank or any lending office of such Lender
or such Lender's or LC Issuing Bank's holding company, if any, regarding capital or liquidity
requirements, has or would have the effect of reducing the rate of return on such Lender's or LC
Issuing Bank's capital or on the capital of such Lender's or LC Issuing Bank's holding company,
if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made
by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters
of Credit issued by any LC Issuing Bank, to a level below that which such Lender or LC Issuing
Bank or such Lender's or LC Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or LC Issuing Bank's policies and the
policies of such Lender's or LC Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender or LC Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such Lender or LC
Issuing Bank or such Lender's or LC Issuing Bank's holding company for any such reduction
suffered.
(c) Certi/icates for Reimbursement. A certificate of a Lender or LC Issuing Bank
setting forth the amount or amounts necessary to compensate such Lender or LC Issuing Bank or
its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall pay
such Lender or LC Issuing Bank, as the case may be, promptly upon demand the amount shown
as due on any such certificate.
(d) Delay in Requests. Failure or delay on the part of any Lender or LC Issuing Bank
to demand compensation pursuant to this Section shall not constitute a waiver of such Lender's
or LC Issuing Bank's right to demand such compensation; provided that the Borrower shall not
40
be required to compensate a Lender or LC Issuing Bank pursuant to this Section for any
increased costs incurred or reductions suffered more than 180 days prior to the date that such
Lender or LC Issuing Bank, as the case may be, notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions, and of such Lender's or LC Issuing Bank's
intention to claim compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof).
SECTION 2.16. Illegalig.
If due to any Change in Law it shall become unlawful or impossible for any Lender (or
its Eurodollar Lending Office) to make, maintain or fund its Eurodollar Rate Revolving Loans,
and such Lender shall so notiff the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Lenders and the Borrower, whereupon, until such
Lender notifies the Borrower and the Administrative Agent that the circumstances giving rise to
such suspension no longer exist, the obligation of such Lender to make Eurodollar Rate
Revolving Loans, or to Convert outstanding Revolving Loans into Eurodollar Rate Revolving
Loans, shall be suspended. Before giving any notice to the Administrative Agent pursuant to this
Section 2.16, such Lender shall use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions applicable to such Lender) to designate a different Eurodollar
Lending Office if such designation would avoid the need for giving such notice and would not,
in the judgment of such Lender, be otherwise disadvantageous to such Lender. If such notice is
given, each Eurodollar Rate Revolving Loan of such Lender then outstanding shall be converted
to a Base Rate Revolving Loan either (i) on the last day of the then current Interest Period
applicable to such Eurodollar Rate Revolving Loan if such Lender may lawfully continue to
maintain and fund such Revolving Loan to such day or (ii) immediately if such Lender shall
determine that it may not lawfully continue to maintain and fund such Revolving Loan to such
duy.
SECTION 2.17. Payments and Computations.
(a) The Borrower shall make each payment to be made by it hereunder not later than
l:00 P.M. on the day when due in Dollars to the Administrative Agent at the Agent's Account
(except payments to be made directly to the Swingline Lender as expressly provided herein) in
same day funds without condition or deduction for any counterclaim, defense, recoupment or
setoff. The Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or commitment fees ratably (other than amounts
payable pursuant to Section 2.02(c),2.06,2.1l(c), 2.13(c),2.15,2.18, 2.21 or 8.04(c)) to the
Lenders for the account of their respective Applicable Lending Offices, and like funds relating to
the payment of any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Assumption and recording of the
information contained therein in the Register pursuant to Section 8.07(c), from and after the
effective date specified in such Assignment and Assumption, the Administrative Agent shall
make all payments hereunder in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Assumption shall make all appropriate
41
adjustments in such payments for periods prior to such effective date directly between
themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent payment owed
to such Lender is not made when due hereunder, after any applicable grace period, to charge
from time to time against any or all of the Borrower's accounts with such Lender any amount so
due.
(c) All computations of interest based on the rate referred to in clause (i) of the
definition of the "Base Rate" contained in Section 1.01 shall be made by the Administrative
Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of
interest based on the Eurodollar Rate, the Federal Funds Rate or the rate referred to in clause (iii)
of the definition of the "Base Rate" and of commitment fees and LC Fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the period for which such
interest, commitment fees or LC Fees are payable. Each determination by the Administrative
Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest or
commitment fees, as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Revolving Loans to be made in the next
following calendar month or on a date after the Termination Date, such payment shall be made
on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to a Lender 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 Lender on such due date
an amount equal to the amount then due such Lender. If and to the extent that the Borrower shall
not have so made such payment in full to the Administrative Agent, each Lender shall repay to
the Administrative Agent forthwith on demand such amount distributed to such Lender together
with interest thereon, for each day from the date such amount is distributed to such Lender until
the date such Lender repays such amount to the Administrative Agent, at the Federal Funds Rate.
(0 Notvrithstanding anything to the contrary set forth in subsection (a) above or
Section 2.04(d), the Borrower may pay, or cause to be paid pursuant to the applicable Related
Documents, the Reimbursement Amount with respect to any drawing under a Bond Letter of
Credit directly to the LC Issuing Bank that issued such Bond Letter of Credit. Upon receipt of
any such payment, such LC Issuing Bank will promptly (i) (A) apply such payment to that
portion of such Reimbursement Amount participations in which have not been funded by the
Lenders under Section 2.0a(e)) and (B) remit the balance of such payment to the Administrative
Agent for further payment to the Lenders that have funded participations in such Reimbursement
Amount pursuant to Section 2.04(e), or (ii) if such Reimbursement Amount has been financed
42
with Borrowings, remit such payment to the Administrative Agent, which will apply such
payment to the prepayment of Borrowings in a principal amount equal to the principal amount of
such Reimbursement Amount so financed. The Administrative Agent shall select the
Borrowings to be prepaid pursuant to clause (ii) above in a manner that will mitigate, to the
extent practical, the Borrower's obligations under Section 8.0a(c) with respect to such
prepayment.
SECTION 2.18. Taxes.
(a) DeJined Terms. For purposes of this Section 2.1 8 and for the avoidance of doubt,
the term "Lender" includes any LC Issuing Bank and the Swingline Lender, and the term
"Applicable Law" includes FATCA.
(b) Poyments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrower under any Loan Document shall be made without deduction or
withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as
determined in the good faith discretion of an applicable Withholding Agent) requires the
deduction or withholding of any Tax from any such payment by a Withholding Agent, then the
applicable Withholding Agent shall be entitled to make such deduction or withholding and shall
timely pay the full amount deducted or withheld to the relevant Governmental Authority in
accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable
by the Borrower shall be increased as necessary so that after such deduction or withholding has
been made (including such deductions and withholdings applicable to additional sums payable
under this Section) the applicable Recipient receives an amount equal to the sum it would have
received had no such deduction or withholding been made.
(c) Payment of Other Taxes by the Borrower. The Borrower shall timely pay to the
relevant Governmental Authority in accordance with Applicable Law, or at the option of the
Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) Indemnijication by the Botower. The Borrower shall indemniff each Recipient,
within 30 days after demand therefor, for the full amount of any Indemnified Taxes (including
Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section)
payable or paid by such Recipient or required to be withheld or deducted from a payment to such
Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes were corectly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) Indemnilication by the Lenders. Each Lender shall severally indemniff the
Administrative Agent, within 30 days after demand therefor, for any Indemnified Taxes
attributable to such Lender (but only to the extent that the Borrower has not already indemnified
the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the
Borrower to do so). Each Lender shall severally indemniff the Administrative Agent and the
Borrower, within 30 days after demand therefor, for (i) any Taxes attributable to such Lender's
failure to comply with the provisions of Section 8.07(d) relating to the maintenance of a
43
Participant Register and (ii) any Excluded Taxes attributable to such Lender, in each case, that
are payable or paid by the Administrative Agent or the Borrower in connection with any Loan
Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not
such Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to any Lender by
the Administrative Agent or the Borrower shall be conclusive absent manifest error. Each
Lender hereby authorizes the Administrative Agent or the Borrower to set off and apply any and
all amounts at any time owing to such Lender under any Loan Document or otherwise payable
by the Administrative Agent or the Borrower to the Lender from any other source against any
amount due to the Administrative Agent or the Borrower under this subsection (e).
(0 Evidence of Poymenls. As soon as practicable after any payment of Taxes by the
Borrower to a Governmental Authority pursuant to this Section 2.18, the Borrower shall deliver
to the Administrative Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(g) Status of Lenders. (i) Any Lender that is entitled to an exemption from or
reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested
by the Borrower or the Administrative Agent, such properly completed and executed
documentation reasonably requested by the Borrower or the Administrative Agent as will permit
such payments to be made without withholding or at a reduced rate of withholding. In addition,
any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver
such other documentation prescribed by Applicable Law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent
to determine whether or not such Lender is subject to backup withholding or information
reporting requirements. Notwithstanding anything to the contrary in the preceding two
sentences, the completion, execution and submission of such documentation (other than such
documentation set forth in Section 2.18(gXiiXA), (iiXB) and (ii)(D) below) shall not be required
if in the Lender's reasonable judgment such completion, execution or submission would subject
such Lender to any material unreimbursed cost or expense or would materially prejudice the
legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing,
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the
Administrative Agent on or prior to the date on which such Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), executed originals of IRS Form W-9 certiffing that such Lender is
exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so,
deliver to the Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the reasonable request of
the Borrower or the Administrative Agent), whichever of the following is applicable:
44
(i) in the case of a Foreign Lender claiming the benefits of an income
tax treaty to which the United States is a party (x) with respect to payments of
interest under any Loan Document, executed originals of IRS Form W-8BEN
establishing an exemption from, or reduction of, U.S. federal withholding Tax
pursuant to the "interest" article of such tax treaty and (y) with respect to any
other applicable payments under any Loan Document, IRS Form W-8BEN
establishing an exemption from, or reduction of, U.S. federal withholding Tax
pursuant to the "business profits" or "other income" article of such tax treaty;
(ii) executed originals of IRS Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the Intemal Revenue
Code, (x) a certificate substantially in the form of Exhibit F-l to the effect that
such Foreign Lender is not a "bank" within the meaning of Section 881(c)(3)(A)
of the Internal Revenue Code, a "10 percent shareholder" of the Borrower within
the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a
"controlled foreign corporation" described in Section 881(c)(3)(C) of the Internal
Revenue Code (a *U.5. Tax Compliance Certilicate") and (y) executed originals
of IRS Form W-8BEN; or
(iv) to the extent a Foreign Lender is not the beneficial owner, executed
originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form
W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit
F-2 or Exhibit F-3, IRS Form W-9, and/or other certification documents from
each beneficial owner, as applicable; provided that if the Foreign Lender is a
partnership and one or more direct or indirect partners of such Foreign Lender are
claiming the portfolio interest exemption, such Foreign Lender may provide a
U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4 on
behalf of each such direct and"indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so,
deliver to the Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the reasonable request of
the Borrower or the Administrative Agent), executed originals of any other form prescribed by
Applicable Law as a basis for claiming exemption from or a reduction in withholding Tax, duly
completed, together with such supplementary documentation as may be prescribed by Applicable
Law to permit the Borrower or the Administrative Agent to determine the withholding or
deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be
subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to
comply with the applicable reporting requirements of FATCA (including those contained in
Section l47l(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall
45
deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and
at such time or times reasonably requested by the Borrower or the Administrative Agent such
documentation prescribed by Applicable Law (including as prescribed by Section
l47l(bX3XC)(i) of the Internal Revenue Code) and such additional documentation reasonably
requested by the Borrower or the Administrative Agent as may be necessary for the Borrower
and the Administrative Agent to comply with their obligations under FATCA and to determine
that such Lender has complied with such Lender's obligations under FATCA or to determine the
amount to deduct and withhold from such payment. Solely for purposes of this clause (D),
"FATCA" shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or
becomes obsolete or inaccurate in any respect, it shall update such form or certification or
promptly notit/ the Borrower and the Administrative Agent in writing of its legal inability to do
so.
(h) Treatment of Certain Refunds. If any party determines, in its sole discretion
exercised in good faith, that it has received a refund of any Taxes as to which it has been
indemnified pursuant to this Section 2.18 (including by the payment of additional amounts
pursuant to this Section 2.18), it shall pay to the indemniffing party an amount equal to such
refund (but only to the extent of indemnity payments made under this Section with respect to the
Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes)
of such indemnified party and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund). Such indemniffing party, upon the
request of such indemnified party, shall repay to such indemnified party the amount paid over
pursuant to this subsection (h) (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) in the event that such indemnified party is required to repay
such refund to such Governmental Authority. Notwithstanding anything to the contrary in this
subsection (h), in no event will the indemnified party be required to pay any amount to an
indemniffing party pursuant to this subsection (h) the payment of which would place the
indemnified party in a less favorable net after-Tax position than the indemnified party would
have been in if the Tax subject to indemnification and giving rise to such refund had not been
deducted, withheld or otherwise imposed and the indemnification payments or additional
amounts with respect to such Tax had never been paid. This subsection shall not be construed to
require any indemnified party to make available its Tax returns (or any other information relating
to its Taxes that it deems confidential) to the indemniffing party or any other Person.
(i) Survival. Each party's obligations under this Section 2.18 shall survive the
resignation or replacement of the Administrative Agent or any assignment of rights by, or the
replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all obligations under any Loan Document.
SECTION 2.19. Sharing of Payments, Etc.
If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of its Loans or other obligations
hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of
its Loans and accrued interest thereon or other such obligations greater than its Commitment
46
Percentage thereof as provided herein, then the Lender receiving such greater proportion shall
(i) notiff the Administrative Agent of such fact, and (ii) purchase (for cash at face value)
participations in the Loans and such other obligations of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them; provided that:
(A) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest; and
(B) the provisions of this Section shall not be construed to apply to (x) any
payment made by the Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence of a
Defaulting Lender and any payment made pursuant to Section 2.02(c),2.06,2.11(c),
2.13(c), 2.15,2.18,2.21 or 8.0a(c) or, in respect of Eurodollar Rate Revolving Loans
converted into Base Rate Revolving Loans, pursuant to Section 2.16), or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Loans or participations in LC Outstandings to any assignee or participant, other
than to the Borrower or any Subsidiary thereof (as to which the provisions of this Section
shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
Applicable Law, that any Lender acquiring a participation pursuant to the foregoing
urrrangements may exercise against the Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
SECTION 2.20. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Dffirent Lending Office. If any Lender requests compensation
under Section 2.15, or requires the Borrower to pay any Indemnified Taxes or additional
amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.18, then such Lender shall (at the request of the Borrower) use reasonable efforts to
designate a different Applicable Lending Office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or2.l8, as the case may be, in the future, and
(ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders.If any Lender requests compensation under
Section 2.15, or requires the Borrower to pay any Indemnified Taxes or additional amounts to
any Lender or any Governmental Authority for the account of any Lender pursuant to
Section2.l8 and, in each case, such Lender has declined or is unable to designate a different
Applicable Lending Office in accordance with subsection (a) above, or if any Lender is a
47
Declining Lender, a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 8.07), all of its interests, rights (other
than its existing rights to payments pursuant to Section 2.15 or Section 2.18) and obligations
under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume
such obligations (which assignee may be another Lender, if such Lender accepts such
assignment); prov i de d that:
(i) the Borrower shall have paid to the Administrative Agent the assignment
fee (if any) specified in Section 8.07(b)(iv);
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, any participations in Swingline Loans funded pursuant
to Section 2.03(c) and any participations in Letters of Credit funded pursuant to Section
2.04(e), together with all applicable accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including any
amounts under Section 8.0a(c)) from the assignee (to the extent of such outstanding
principal amounts and accrued interest and fees) or the Borrower (in the case of all other
amounts);
(iiD in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant to
Section2.l8, such assignment will result in a reduction in such compensation or
payments thereafter;
(iv) such assignment shall not conflict with Applicable Law;
(v) in the case of any assignment resulting from a Lender becoming a
Declining Lender or a Non-Consenting Lender, the applicable assignee shall have
consented to the applicable extension, amendment, waiver or consent; and
(vi) No Default shall have occurred and be continuing.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
SECTION 2.21. Defaulting Lenders.
(a) Defuulting Lender Adjustments. Notwithstanding anything to the contrary
contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as
such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
(D Waivers and Amendments. Such Defaulting Lender's right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in the definition of Required Lenders and in Section 8.01.
48
(iD Defoulting Lender Waterfall. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of such Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Article 6.01 or
otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to
Section 8.05 shall be applied at such time or times as may be determined by the
Administrative Agent as follows: first, to the payment of any amounts owing by such
Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a
pro rata basis of any amounts owing by such Defaulting Lender to any LC Issuing Bank
or the Swingline Lender hereunder; third, to Cash Collateralize the LC lssuing Banks'
Fronting Exposure with respect to such Defaulting Lender in accordance with Section
2.22;fourth, as the Borrower may request (so long as no Default exists), to the funding of
any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof
as required by this Agreement, as determined by the Administrative Agent; fifth, if so
determined by the Administrative Agent and the Borrower, to be held in a deposit
account and released pro rata in order (x) to satisfu such Defaulting Lender's potential
future funding obligations with respect to Loans under this Agreement and (y) to Cash
Collateralize the LC Issuing Banks' future Fronting Exposure with respect to such
Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in
accordance with Section 2.22; sixth, to the payment of any amounts owing to the
Lenders, the Issuing Banks or the Swingline Lender as a result of any judgment of a court
of competent jurisdiction obtained by any Lender, the LC Issuing Banks or the Swingline
Lender against such Defaulting Lender as aresult of such Defaulting Lender's breach of
its obligations under this Agreement; seventh, so long as no Default exists, to the
payment of any amounts owing to the Borrower as a result of any judgment of a court of
competent jurisdiction obtained by the Borrower against such Defaulting Lender as a
result of such Defaulting Lender's breach of its obligations under this Agreement; and
eighth, to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if (x) such payment is a payment of the principal amount of
any Loans or LC Outstandings in respect of which such Defaulting Lender has not fully
funded its appropriate share, and (y) such Loans were made or the related Letters of
Credit were issued at a time when the conditions set forth in Section 3.02 were satisfied
or waived, such payment shall be applied solely to pay the Loans of, and LC
Outstandings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being
applied to the payment of any Loans of, or LC Outstandings owed to, such Defaulting
Lender until such time as all Loans and funded and unfunded participations in LC
Outstandings and Swingline Outstandings are held by the Lenders pro rata in accordance
with the Commitments without giving effect to Section 2.21(a)(iv). Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or
held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to
this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender,
and each Lender irrevocably consents hereto.
(iiD Certoin Fees. (A) No Defaulting Lender shall be entitled to receive any
commitment fee for any period during which that Lender is a Defaulting Lender (and the
Borrower shall not be required to pay any such fee that otherwise would have been
required to have been paid to that Defaulting Lender).
49
(B) Each Defaulting Lender shall be entitled to receive LC Fees for
any period during which that Lender is a Defaulting Lender only to the extent
allocable to its Commitment Percentage of the LC Outstandings for which it has
provided Cash Collateral pursuant to Section 2.22.
(C) With respect to any LC Fee not required to be paid to any
Defaulting Lender pursuant to clause (B) above, the Borrower shall (x) pay to
each Non-Defaulting Lender that portion of any such LC Fee otherwise payable to
such Defaulting Lender with respect to such Defaulting Lender's participation in
LC Outstandings that has been reallocated to such Non-Defaulting Lender
pursuant to clause (iv) below, (y) pay to each LC Issuing Bank the amount of any
such LC Fee otherwise payable to such Defaulting Lender to the extent allocable
to such LC Issuing Bank's Fronting Exposure to such Defaulting Lender, and (z)
not be required to pay the remaining amount of any such LC Fee.
(iv) Reallocation of Participations to Reduce Fronting Exposure. All or any
part of such Defaulting Lender's participation in LC Outstandings and Swingline
Outstandings shall be reallocated among the Non-Defaulting Lenders in accordance with
their respective Commitment Percentages (calculated without regard to such Defaulting
Lender's Commitment) but only to the extent that (x) the conditions set forth in Section
3.02 are satisfied at the time of such reallocation (and, unless the Borrower shall have
otherwise notified the Administrative Agent at such time, the Borrower shall be deemed
to have represented and warranted that such conditions are satisfied at such time), (y)
such reallocation does not cause the aggregate Outstanding Credits of any Non-
Defaulting Lender to exceed such Non-Defaulting Lender's Commitment and (z) such
reallocation does not cause the aggregate Outstanding Credits of all Non-Defaulting
Lenders to exceed the Commitments of all Non-Defaulting Lenders. No reallocation
hereunder shall constitute a waiver or release of any claim of any party hereunder against
a Defaulting Lender arising from that Lender having become a Defaulting Lender,
including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting
Lender' s increased exposure following such reallocation.
(v) Cash Collateral, Repoyment of Swingline Loans. If the reallocation
described in paragraph (iv) above cannot, or can only partially, be effected, the Borrower
shall, without prejudice to any right or remedy available to it hereunder or under law, (x)
first, prepay Swingline Loans in an amount equal to the Swingline Lender's Fronting
Exposure and (y) second, Cash Collateralize the LC Issuing Banks' Fronting Exposure in
accordance with the procedures set forth in Section 2.22.
(vi) Reduction of Avoilable Commitments. The Borrower may terminate the
Available Commitment of any Lender that is a Defaulting Lender in accordance with
Section 2.08(b).
(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the
Swingline Lender and each LC Issuing Bank agree in writing that a Lender is no longer a
Defaulting Lender, the Administrative Agent will so notiff the parties hereto, whereupon as of
the effective date specified in such notice and subject to any conditions set forth therein (which
may include arrangements with respect to any Cash Collateral), that Lender will, to the extent
applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such
other actions as the Administrative Agent may determine to be necessary to cause the Loans and
funded and unfunded participations in LC Outstandings and Swingline Outstandings to be held
pro rata by the Lenders in accordance with the Commitments (without giving effect to Section
2.21(a)(iv)\ whereupon such Lender will cease to be a Defaulting Lender; provided that no
adjustments will be made retroactively with respect to fees accrued or payments made by or on
behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that
except to the extent otherwise expressly agreed in writing by the affected parties, no change
hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of
any party hereunder arising from that Lender's having been a Defaulting Lender.
(c) New Swingline Loans/Letters of Credit. So long as any Lender is a Defaulting
Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is
satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and
(ii) no LC Issuing Bank shall be required to issue, extend, renew or increase any Letter of Credit
unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
(d) Bankruptcy Event of a Parent Company. If (i) a Bankruptcy Event with respect
to a direct or indirect parent company of any Lender shall occur following the date hereof and for
so long as such event shall continue or (ii) the Swingline Lender or any LC Issuing Bank has a
good faith belief that any Lender has defaulted in fulfilling its obligations under one or more
other agreements in which such Lender commits to extend credit, the Swingline Lender shall not
be required to fund any Swingline Loan, and no LC Issuing Bank shall be required to issue,
extend, renew or increase any Letter of Credit, unless the Swingline Lender or such LC Issuing
Bank, as the case may be, shall have entered into arrangements with the Borrower or such
Lender, satisfactory to the Swingline Lender or such LC Issuing Bank, as the case may be, to
defease any risk to it in respect of such Lender hereunder.
SECTION 2.22. Cash Collateral.
At any time that there shall exist a Defaulting Lender, within one Business Day following
the written request of the Administrative Agent or any LC Issuing Bank (with a copy to the
Administrative Agent) the Borrower shall Cash Collateralize the LC Issuing Banks' Fronting
Exposure with respect to such Defaulting Lender (determined after giving effect to Section
2.21(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less
than the Minimum Collateral Amount.
(i) Grant of Security fnterest. The Borrower, and to the extent provided by
any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative
Agent, for the benefit of the LC Issuing Banks, and agrees to maintain, a first priority
security interest in all such Cash Collateral as security for the Defaulting Lenders'
obligation to fund participations in respect of LC Outstandings, to be applied pursuant to
paragraph (ii) below. If at any time the Administrative Agent determines that Cash
Collateral is subject to any right or claim of any Person other than the Administrative
Agent and the LC Issuing Banks as herein provided, or that the total amount of such Cash
Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly
5l
upon demand by the Administrative Agent, pay or provide to the Administrative Agent
additional Cash Collateral in an amount sufficient to eliminate such deficiency (after
giving effect to any Cash Collateral provided by the Defaulting Lender).
(ii) Appticotion Norwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under this Section 2.22 or Section 2.21 in respect of
Letters of Credit shall be applied to the satisfaction of the Defaulting Lender's obligation
to fund participations in respect of LC Outstandings (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) for which the
Cash Collateral was so provided, prior to any other application of such property as may
otherwise be provided for herein.
(iii) Termination of Requirement. Cash Collateral (or the appropriate portion
thereof) provided to reduce any LC Issuing Bank's Fronting Exposure shall no longer be
required to be held as Cash Collateral pursuant to this Section 2.22 following (A) the
elimination of the applicable Fronting Exposure (including by the termination of
Defaulting Lender status of the applicable Lender), or (B) the determination by the
Administrative Agent and each LC Issuing Bank that there exists excess Cash Collateral;
provided that, subject to Section 2.21, the Person providing Cash Collateral and each LC
Issuing Bank may agree that Cash Collateral shall be held to support future anticipated
Fronting Exposure or other obligations.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3,01. Conditions Precedent to Effectiveness.
The obligation of each Lender, each LC Issuing Bank and the Swingline Lender to make
the initial Extension of Credit to be made by it hereunder shall become effective on and as of the
first date on which the following conditions precedent have been satisfied:
(a) The Administrative Agent shall have received on or before such date of
effectiveness the following, each dated such day (except as noted otherwise below), in form and
substance reasonably satisfactory to the Administrative Agent and, to the extent requested by the
Administrative Agent, in sufficient copies (except with respect to the promissory notes described
in paragraph (i) below) for the Swingline Lender, each Lender and each LC Issuing Bank:
(i) Promissory notes payable to the order of each Lender that has requested
the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(ii) (A) A copy of the articles of incorporation or other organizational
documents of the Borrower and each amendment thereto, certified by the Secretary of
State of Oregon as being a true and correct copy thereof, and (B) a certificate from the
Secretary of State of Oregon (dated not more than l0 days prior to the date hereof)
attesting to the continued existence and good standing of the Borrower in that State.
52
(iiD Certified copies of the resolutions of the board of directors of the
Borrower approving this Agreement and the other Loan Documents and of all documents
evidencing other necessary corporate action and Governmental Approvals required for
the execution, delivery and performance by the Borrower of this Agreement and the other
Loan Documents.
(iv) A certificate of the Secretary or Assistant Secretary of the Borrower
certi$ing (A) the names and true signatures of the officers of the Borrower authorized to
sign this Agreement and the other documents to be delivered by the Borrower hereunder,
and (B) that attached thereto are true and correct copies of the bylaws of the Borrower as
in effect on such date.
(v) A favorable opinion of in-house counsel for the Borrower, substantially in
the form of Exhibit D-l hereto.
(vi) A favorable opinion of special New York counsel for the Borrower,
substantially in the form of Exhibit D-2 hereto.
(vii) A favorable opinion of King &, Spalding LLP, counsel for the
Administrative Agent, in the form of Exhibit E hereto.
(b) On such date, the following statements shall be true and the Administrative Agent
shall have received for the account of each Lender a certificate signed by a duly authorized
officer of the Borrower, dated such date, stating that:
(i) The representations and warranties of the Borrower contained in this
Agreement are true and correct on and as of the date of such effectiveness as though
made on and as of such date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Borrower and each Lender that is an LC Issuing Bank on such date shall have
entered into an LC Issuing Bank Fee Letter.
(d) The Borrower shall have paid all accrued fees and expenses of the Administrative
Agent, the Global Coordinator, the Joint Lead Arrangers and the Lenders payable on the date
hereof (including the accrued fees and expenses of counsel to the Administrative Agent to the
extent then due and payable).
(e) The Administrative Agent shall have received all documentation and information
required by regulatory authorities under applicable "know your customer" and anti-money
laundering rules and regulations, including without limitation the Patriot Act, to the extent such
documentation or information is requested by the Administrative Agent on behalf of the Lenders
reasonably in advance ofthe date hereof.
(0 All amounts outstanding under the Existing Credit Agreement, whether for
principal, interest, fees or otherwise, shall have been paid in full, all commitments to lend
53
thereunder shall have been terminated, and the Existing Credit Agreement shall have been
terminated.
(g) The Administrative Agent shall have received such other approvals or documents
as the Administrative Agent, the Swingline Lender, any Lender or any LC Issuing Bank shall
have reasonably requested through the Administrative Agent reasonably in advance of the date
hereof.
SECTION 3.02, Conditions Precedent to each Ertension of Credit.
The obligation of each Lender, each LC Issuing Bank and the Swingline Lender to make
each Extension of Credit to be made by it hereunder (other than in connection with any
Borrowing that would not increase the aggregate principal amount of Loans outstanding
immediately prior to the making of such Borrowing) shall be subject to the following statements
being true on the date of such Borrowing (and each of the giving of the applicable Notice of
Borrowing or Request for Issuance and the acceptance by the Borrower of the proceeds of any
such Extension of Credit shall constitute a representation and warranty by the Borrower that on
the date of such Extension of Credit such statements are true):
(i) The representations and warranties of the Borrower contained in
Section 4.01 (other than the representations and warranties in the first sentence of
Section4.0l(g), in Section4.0l(i) and in the first sentence of Section a.0l(n)) are true
and correct in all material respects (without duplication of any materiality qualifiers) on
and as of the date of such Extension of Credit, before and after giving effect to such
Extension of Credit and to the application of the proceeds therefrom, as though made on
and as ofsuch date, and
(ii) No event has occurred and is continuing, or would result from such
Extension of Credit or from the application of the proceeds therefrom, that constitutes a
Default.
SECTION 3.03. Conditions Precedent to Issuance of Each Bond Letter of Credit.
The obligation of each LC Issuing Bank to issue any Bond Letter of Credit in connection
with any series of Bonds shall be subject to the satisfaction of the conditions precedent set forth
in Sections 3.01 and 3.02 and the further conditions precedent that:
(a) The Administrative Agent shall have received on or before the date of such
issuance the following, in form and substance reasonably satisfactory to the Administrative
Agent and the applicable LC Issuing Bank and, to the extent requested by the Administrative
Agent, in sufficient copies for each Lender:
(i) Counterparts of any Pledge Agreement relating to such Bonds, duly
executed by the Borrower, the Administrative Agent and the applicable Custodian, or
other evidence that the Bonds purchased with the proceeds of such Bond Letter of Credit
will be effectively pledged to or held for the benefit of such LC Issuing Bank and the
Lenders, and that a separate CUSIP number has been assigned to such Bonds.
54
(ii) Certified copies or originals of the other applicable Related Documents
(which, in the case of the applicable Bonds, may be a specimen of such Bonds).
(iii) Certified copies of the resolutions of the board of directors of the
Borrower approving the Related Documents to which the Borrower is a party in
connection with such Bond Letter of Credit, and of all documents evidencing other
necessary corporate action and Governmental Approvals, if any, with respect to the
transactions contemplated by such Related Documents.
(iv) A certificate of the Secretary or Assistant Secretary of the Borrower
certiffing the names and true signatures of the Borrower authorized to sign the Related
Documents to which the Borrower is a party in connection with such Bond Letter of
Credit and the other documents to be delivered by the Borrower hereunder in connection
with the issuance of such Bond Letter of Credit.
(v) A copy of the Official Statement, if any, relating to the Bonds to be
supported by such Bond Letter of Credit.
(vi) A certificate of an authorized officer of the applicable Custodian certiffing
the names, true signatures and incumbency of the officers of such Custodian authorized
to sign the applicable Pledge Agreement.
(vii) A certificate of an authorized officer of the applicable Trustee certiffing
the names, true signatures and incumbency of the officers of such Trustee authorized to
make drawings under such Bond Letter of Credit.
(viii) A favorable opinion of counsel to the Borrower with respect to the Related
Documents to which the Borrower is a party.
(ix) A reliance letter from bond counsel relating to the Bonds to be supported
by such Bond Letter of Credit permitting the Lenders to rely on the approving opinion of
bond counsel with respect to such Bonds.
(x) The Administrative Agent shall have received such other approvals or
documents as the Administrative Agent, the Swingline Lender, any Lender or any LC
Issuing Bank shall have reasonably requested through the Administrative Agent
reasonably in advance ofthe date hereof.
(b) On the date of such issuance, the following statements shall be true and correct,
and the Administrative Agent shall have received on or before such date for the account of the
applicable LC Issuing Bank and each Lender a certificate signed by a duly authorized officer of
the Borrower, dated such date, stating that the following representations and warranties are true
and correct in all material respects (without duplication of any materiality qualifiers) on and as of
such date, as though made on and as of such date:
(i) The execution, delivery and performance by the Borrower of each Related
Document to which the Borrower is a party in connection with such Bond Letter of
Credit, and the consummation of the transactions contemplated thereby, are within the
55
Borrower's corporate powers and have been duly authorized by all necessary corporate
and shareholder action. Each Related Document to which the Borrower is stated to be a
party in connection with such Bond Letter of Credit has been duly executed and delivered
by the Borrower.
(iD No authorization or approval or other action by, and no notice to or filing
with, any Governmental Authority or any other third party is required for the due
execution, delivery and performance by the Borrower of any Related Document to which
the Borrower is a party in connection with such Bond Letter of Credit, other than such
authorizations, approvals, actions, notices and filings that have been obtained or made (as
applicable) prior to such date.
(iii) The execution, delivery and performance by the Borrower of each Related
Document to which the Borrower is a party in connection with such Bond Letter of
Credit will not (A) violate (x) the articles of incorporation or bylaws (or comparable
documents) of Borrower or any of its Material Subsidiaries or (y) any Applicable Law,
(B) be in conflict with, or result in a breach of or constitute a default under, any contract,
agreement, indenture or instrument to which the Borrower or any of its Material
Subsidiaries is a party or by which any of its or their respective properties is bound, or
(C) result in the creation or imposition of any Lien on the property of Borrower or any of
its Material Subsidiaries other than Permitted Liens and Liens required under this
Agreement, except to the extent such conflict, breach or default referred to in the
preceding clause (B), individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect.
(iv) Each Related Document to which the Borrower is a party in connection
with such Bond Letter of Credit is the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms.
(v) The representations and warranties of the Borrower in the Related
Documents to which the Borrower is a party in connection with such Bond Letter of
Credit are true and correct in all material respects (without duplication of any materiality
qualifiers).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Represenlations and Warranties of the Boruower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the State of Oregon and is duly qualified to do business and is in good
standing as a foreign corporation under the laws of each state in which the ownership of its
properties or the conduct of its business makes such qualification necessary, except where the
failure to be so qualified would not reasonably be expected to have a Material Adverse Effect,
and each Material Subsidiary is duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by the Borrower of each Loan
Document, and the consummation of the transactions contemplated hereby and thereby, are
within the Borrower's corporate powers and have been duly authorized by all necessary
corporate action. Each Loan Document has been duly executed and delivered by the Borrower.
(c) No authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority or any other third party is required for the due execution, delivery
and performance by the Borrower of any Loan Document, other than such Governmental
Approvals that have been duly obtained and are in full force and effect, which as of the date
hereof include: Decision 88-04-062 of the Public Utilities Commission of the State of California
dated April 27, 1988; Order No. 32221 of the Idaho Public Utilities Commission issued April 8,
2011, in Case No. PAC-E-11-09; Order No. 94-1240 and Order No. 98-158 of the Public Utility
of Commission of Oregon issued August 17, 1994 and April 16, 1998, respectively; Order
Establishing Compliance issued April 8, 1998, in Docket UE-980404, by the Washington
Utilities and Transportation Commission; Order Approving Securities Exemption and Accepting
the Substance and Format of the Quarterly Financing Activity Report To Be Filed Thereunder
issued November 7, 2010, in Docket No. 20000-372-EA-10 (Record No. 12519), by the Public
Service Commission of Wyoming; Report and Order issued May 10, 2007, in Docket No. 07-
035-16, by the Public Service Commission of Utah; and Letter Order issued November 29,2011,
in DocketNo. ES11-51-000, by FERC.
(d) The execution, delivery and performance by Borrower of the Loan Documents
will not (i) violate (A) the articles of incorporation or bylaws (or comparable documents) of
Borrower or any of its Material Subsidiaries or (B) any Applicable Law, (ii) be in conflict with,
or result in a breach of or constitute a default under, any contract, agreement, indenture or
instrument to which the Borrower or any of its Material Subsidiaries is a pary or by which any
of its or their respective properties is bound or (iii) result in the creation or imposition of any
Lien on the property of Borrower or any of its Material Subsidiaries other than Permitted Liens
and Liens required under this Agreement, except to the extent such conflict, breach or default
referred to in the preceding clause (ii), individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
(e) Each Loan Document is the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except as limited by bankruptcy
and similar laws affecting the enforcement of creditors' rights generally and by the application of
general equitable principles.
(D The Borrower and each Material Subsidiary are in compliance with all Applicable
Laws (including Environmental Laws), except to the extent that failure to comply would not
reasonably be expected to have a Material Adverse Effect.
(g) There is no action, suit, proceeding, claim or dispute pending or, to the
Borrower's knowledge, threatened against or affecting the Borrower or any of its Material
Subsidiaries, or any of its or their respective properties or assets, before any Governmental
57
Authority that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect. There is no injunction, writ, preliminary restraining order or any other order of
any nature issued by any Governmental Authority directing that any material aspect of the
transactions expressly provided for in any of the Loan Documents not be consummated as herein
or therein provided.
(h) The consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
as at December 31,2012, and the related consolidated statements of income, cash flows and
stockholders' equity for the fiscal year ended on such date, certified by Deloitte & Touche LLP,
copies of which have heretofore been furnished to the Administrative Agent and each Lender,
present fairly in all material respects the financial condition of the Borrower and its Consolidated
Subsidiaries as at such date, and the consolidated results of their operations and cash flows for
the fiscal year then ended. All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as may be disclosed therein).
(i) Since December 31,2012, no event has occurred that could reasonably be
expected to have a Material Adverse Effect.
0) The Borrower and each Material Subsidiary have filed or caused to be filed all
Federal and other material tax returns that are required by Applicable Law to be filed, and have
paid all taxes shown to be due and payable on said returns or on any assessments made against it
or any of its property; other than (i) with respect to taxes the amount or validity of which is
currently being contested in good faith by appropriate proceedings and with respect to which
reseryes in conformity with GAAP have been provided on the books of the Borrower or the
applicable Material Subsidiary, as the case may be, or (ii) to the extent that the failure to do so
could not reasonably be expected to result in a Material Adverse Effect.
(k) No ERISA Event has occurred other than as would not, either individually or in
the aggregate, be reasonably expected to have a Material Adverse Effect. There are no actions,
suits or claims pending against or involving a Pension Plan (other than routine claims for
benefits) or, to the knowledge of the Borrower or any of its ERISA Affiliates, threatened, that
would reasonably be expected to be asserted successfully against any Pension Plan and, if so
asserted successfully, would reasonably be expected either singly or in the aggregate to have a
Material Adverse Effect. No lien imposed under the Internal Revenue Code or ERISA on the
assets of the Borrower or any of its ERISA Affiliates exists or is likely to arise with respect to
any Pension Plan. The Borrower and each of its Subsidiaries have complied with foreign law
applicable to its Foreign Plans, except to the extent that failure to comply would not reasonably
be expected to have a Material Adverse Effect.
(l) The Borrower is not engaged in the business of extending credit for the purpose of
buying or carrying Margin Stock, and no proceeds of any Loan will be used to buy or carry any
Margin Stock or to extend credit to others for the purpose of buying or carrying any Margin
Stock. Not more than 25o/o of the assets of the Borrower and the Material Subsidiaries that are
subject to the restrictions of Section 5.02(a) or (c) constitute Margin Stock.
58
(m) Neither the Borrower nor any Subsidiary is an "investment company" or a
company o'controlled" by an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended.
(n) There are no claims, Iiabilities, investigations, litigation, notices of violation or
liability, administrative proceedings, judgments or orders, whether asserted, pending or
threatened, relating to any liability under or compliance with any applicable Environmental Law,
against the Borrower or any Material Subsidiary or relating to any real property currently or
formerly owned, leased or operated by the Borrower or any Material Subsidiary, that would
reasonably be expected to have a Material Adverse Effect. No Hazardous Materials have been or
are present or are being spilled, discharged or released on, in, under or from property (real,
personal or mixed) currently or formerly owned, leased or operated by the Borrower or any
Material Subsidiary in any quantity or manner violating, or resulting in liability under, any
applicable Environmental Law, which violation or liability would reasonably be expected to
have a Material Adverse Effect.
(o) No wriffen statement or information furnished by or on behalf of the Borrower to
the Administrative Agent, any Lender or any LC Issuing Bank in connection with the
syndication or negotiation of this Agreement (including the CIM) or delivered pursuant hereto, in
each case as of the date such statement or information is made or delivered, as applicable,
contained or contains, any material misstatement of fact or intentionally omitted or omits to state
any material fact necessary to make the statements therein, in the light of the circumstances
under which they were, are, or will be made, not misleading.
(p) Each Material Subsidiary as of the date hereof is set forth on Schedule IV.
(q) The Borrower and each Material Subsidiary are in compliance in all material
respects with all (i) United States economic sanctions laws, executive orders and implementing
regulations as promulgated by the U.S. Treasury Department's Office of Foreign Assets Control,
(ii) applicable anti-money laundering and counter-terrorism financing provisions of the Bank
Secrecy Act and all rules regulations issued pursuant to it and (iii) applicable provisions of the
United States Foreign Corrupt Practices Act of 1977.
ARTICLE V
COYENANTS OF THE BORROWER
SECTION 5.0 1. Alfirmative Covenants.
So long as any Loan or any other amount payable hereunder shall remain unpaid, any
Letter of Credit shall remain outstanding or any Lender shall have any Commitment hereunder,
the Borrower will:
(a) Payment of Taxes, Etc. Pay and discharge, and cause each Material Subsidiary to
pay and discharge, before the same shall become delinquent, (i) all taxes, assessments and
governmental charges or levies imposed upon it or its property, and (ii) all lawful claims that, if
unpaid, would by Applicable Law become a Lien upon its property, in each case, except to the
extent that the failure to pay and discharge such amounts, either singly or in the aggregate, would
59
not reasonably be expected to have a Material Adverse Effect; provided, however, that neither
the Borrower nor any Material Subsidiary shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper proceedings and
as to which adequate reserves are being maintained in accordance with GAAP.
(b) Preservation of Existence, Etc. Preserve and maintain, and cause each Material
Subsidiary to preserve and maintain, its corporate, partnership or limited liability company (as
the case may be) existence and all rights (charter and statutory) and franchises, except to the
extent the failure to maintain such rights and franchises would not reasonably be expected to
have a Material Adverse Effect; provided, however, that the Borrower and any Material
Subsidiary may consummate any merger or consolidation permitted under Section 5.02(b).
(c) Compliance with Laws, Etc. Comply, and cause each Material Subsidiary to
comply with Applicable Law (with such compliance to include, without limitation, compliance
with Environmental Laws, the Patriot Act and the United States economic sanctions laws,
executive orders and implementing regulations as promulgated by the U.S. Treasury
Department's Office of Foreign Assets Control), except to the extent the failure to do so would
not reasonably be expected to have a Material Adverse Effect.
(d) Inspection Rights. At any reasonable time and from time to time, permit the
Administrative Agent, the Swingline Lender, any LC Issuing Bank or any Lender or any
designated agents or representatives thereof, at all reasonable times and to the extent permitted
by Applicable Law, to examine and make copies of and abstracts from the records and books of
account of, and visit the properties of, the Borrower and any Material Subsidiary and to discuss
the affairs, finances and accounts of the Borrower and any Material Subsidiary with any of their
officers or directors and with their independent certified public accountants (at which discussion,
if the Borrower or such Material Subsidiary so requests, a representative of the Borrower or such
Material Subsidiary shall be permitted to be present, and if such accountants should require that a
representative of the Borrower be present, the Borrower agrees to provide a representative to
attend such discussion); provided that (i) such designated agents or representatives shall agree to
any reasonable confidentiality obligations proposed by the Borrower and shall follow the
guidelines and procedures generally imposed upon like visitors to the Borrower's facilities, and
(ii) unless an Event of Default shall have occurred and be continuing, such visits and inspections
shall occur not more than once in any fiscal quarter.
(e) Keeping of Books. Keep, and cause each Material Subsidiary to keep, proper
books of record and account, in which full and correct entries shall be made of all financial
transactions and the assets and business of the Borrower and each such Material Subsidiary in
accordance with GAAP.
(0 Maintenance of Properties, Etc. Maintain and preserve, and cause each Material
Subsidiary to maintain and preserve, all of its properties that are material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted.
(g) Maintenance of Insurance. Maintain, and cause each Material Subsidiary to
maintain, insurance with responsible and reputable insurance companies or associations in such
amounts and covering such risks as is usually carried by companies engaged in similar
60
businesses and owning similar properties in the same general areas in which Borrower or any of
its Material Subsidiaries operates to the extent available on commercially reasonable terms (the
"Industry Standord'); provided, however, that the Borrower and each Material Subsidiary may
self-insure to the same extent as other companies engaged in similar businesses and owning
similar properties and to the extent consistent with prudent business practice; and provided,
further, that if the Industry Standard is such that the insurance coverage then being maintained by
Borrower and its Material Subsidiaries is below the Industry Standard, Borrower shall only be
required to use its reasonable best efforts to obtain the necessary insurance coverage such that its
and its Material Subsidiaries' insurance coverage equals or is greater than the Industry Standard.
(h) Reporting Requiremenls. Furnish to the Lenders:
(i) within 60 days after the end of each of the first three quarters of each
fiscal year of the Borrower, a copy of the consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of the end of such quarter and consolidated statements of
income and cash flows of the Borrower and its Consolidated Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end of such
quarter, duly certified (subject to year-end audit adjustments) by the chief financial
officer, chief accounting officer, treasurer or assistant treasurer of the Borrower as having
been prepared in accordance with generally accepted accounting principles and a
certificate of the chief financial officer, chief accounting officer, treasurer or assistant
treasurer of the Borrower as to compliance with the terms of this Agreement and setting
forth in reasonable detail the calculations necessary to demonstrate compliance with
Section 5.03, provided that in the event of any change in GAAP used in the preparation
of such financial statements, the Borrower shall also provide, if necessary for the
determination of compliance with Section 5.03, a statement of reconciliation conforming
such financial statements to GAAP in effect on the date hereof;
(ii) within 120 days after the end of each fiscal year of the Borrower, a copy
of the annual audit report for such year for the Borrower and its Consolidated
Subsidiaries, containing a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such fiscal year and consolidated statements of
income and cash flows of the Borrower and its Consolidated Subsidiaries for such fiscal
year, in each case accompanied by an opinion by Deloitte & Touche LLP or other
independent public accountants of nationally recognized standing, and a certificate of the
chief financial officer, chief accounting officer, treasurer or assistant treasurer of the
Borrower as to compliance with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate compliance with Section 5.03,
provided that in the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for the determination
of compliance with Section 5.03, a statement of reconciliation conforming such financial
statements to GAAP in effect on the date hereof;
(iii) within five days after the chief financial officer or treasurer of the
Borrower obtains knowledge of the occurrence of any Default, a statement of the chief
financial officer or treasurer of the Borrower setting forth details of such Default and the
action that the Borrower has taken and proposes to take with respect thereto;
61
(iv) within ten Business Days after the Borrower or any of its ERISA Affiliates
knows or has reason to know that (A) the Borrower or any of its ERISA Affiliates has
failed to comply with ERISA or the related provisions of the Internal Revenue Code with
respect to any Pension Plan, and such noncompliance will, or could reasonably be
expected to, result in material liability to the Borrower or its Subsidiaries, and/or (B) any
ERISA Event (other than an ERISA Event as defined in clause (vi) of the definition of
"ERISA Event") has occurred, a certificate of the chief financial officer of the Borrower
describing such ERISA Event and the action, if any, proposed to be taken with respect to
such ERISA Event and a copy of any notice filed with the PBGC or the IRS pertaining to
such ERISA Event and all notices received by the Borrower or such ERISA Affiliate
from the PBGC or any other governmental agency with respect thereto;
(v) promptly after the commencement thereof notice of all actions and
proceedings before, and orders by, any Governmental Authority affecting the Borrower
or any Material Subsidiary of the type described in Section 4.01(g);
(vi) together with the financial statements delivered in paragraphs (i) and (ii)
of this Section 5.01(h), if Schedule IV shall no longer set forth a complete and correct list
of all Material Subsidiaries as of the last date of the period for which such financial
statements were prepared, an updated Schedule IV setting forth all Material Subsidiaries
as of the last date of such period for which such financial statements have been prepared;
and
(vii) such other information respecting the Borrower or any of its Subsidiaries
as any Lender through the Administrative Agent may from time to time reasonably
request.
If the financial statements required to be delivered pursuant to Section 5.01(h)(i) or 5.01(h)(ii)
are included in any Form l0-K or 10-Q filed by the Borrower, the Borrower's obligation to
deliver such documents or information to the Administrative Agent shall be deemed to be
satisfied upon (x) delivery of a copy of the relevant form to the Administrative Agent within the
time period required by such Section or (y) the relevant form being available on EDGAR and the
delivery of a notice to the Administrative Agent (which notice may be delivered by electronic
mail and/or included in the applicable compliance certificate delivered pursuant to Section
5.01(hxi) or 5.01(h)(ii)) that such form is so available, in each case within the time period
required by such Section.
(i) Use of Proceeds. Use the proceeds of the Borrowings and the Leffers of Credit
for working capital and other general corporate purposes.
O Control of Purchased Bonds. So long as any Bond Letter of Credit shall remain
outstanding, cause each Bond purchased with the proceeds of such Bond Letter of Credit to be
subject to the Lien of an applicable Pledge Agreement or otherwise registered in the name of the
applicable LC Issuing Bank, the Administrative Agent or any nominee of such LC Issuing Bank
or of the Administrative Agent pending the remarketing of such Bonds pursuant to the applicable
Remarketing Agreement and the other applicable Related Documents.
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SECTION 5.02. Negative Covenants.
So long as any Loan or any other amount payable hereunder shall remain unpaid, any
Letter of Credit shall remain outstanding or any Lender shall have any Commitment hereunder,
the Borrower agrees that it will not:
(a) Liens, Etc. Create or suffer to exist, or cause or permit any Material Subsidiary to
create or suffer to exist, any Lien on or with respect to any of its properties, including, without
limitation, equity interests held by such Person in any Subsidiary of such Person, whether now
owned or hereafter acquired, other than (i) Permitted Liens, (ii) Liens created under Section 2.22
or 6.02, (iii) Liens created by the Mortgage and Deed of Trust, dated as of January 9, 1989, as
amended and supplemented, of PacifiCorp, entered into with The Bank of New York Mellon
Trust Company, N.A. (as successor trustee to JPMorgan Chase Bank, N.A.) or any other first
mortgage indenture or similar agreement or instrument pursuant to which the Borrower or any of
its Material Subsidiaries may issue bonds, notes or similar instruments secured by a lien on all or
substantially all of its fixed assets, so long as under the terms of such indenture or similar
agreement or instrument no "event of default" (howsoever designated) in respect of any bonds or
other instruments issued thereunder will be triggered by reference to a Default, and (iv) Liens, in
addition to the foregoing, securing obligations not greater than the greater of (A) 7.5%o of
consolidated shareholders' equity of all classes (whether common, preferred, mandatorily
convertible preferred or preference) of the Borrower and (B) $100,000,000.
(b) Mergers, Etc. Merge or consolidate with or into any Person, unless (i) the
successor entity (if other than the Borrower) (A) assumes, in form reasonably satisfactory to the
Administrative Agent, all of the obligations of the Borrower under this Agreement, (B) is a
corporation or limited liability company formed under the laws of the United States of America,
one of the States thereof or the District of Columbia, (C) is in pro forma compliance with the
covenant in Section 5.03 both before and after giving effect to such proposed transaction and (D)
has long-term senior unsecured debt ratings issued (and confirmed after giving effect to such
merger) by S&P or Moody's of at least BBB- and Baa3, respectively (or if no such ratings have
been issued, commercial paper ratings issued (and confirmed after giving effect to such merger)
by S&P and Moody's of at least A-3 and P-3, respectively), and (ii) no Default shall have
occurred and be continuing at the time of such proposed transaction or would result therefrom,
and provided, in each case of clause (i) where the successor entity is other than the Borrower,
that the Administrative Agent shall have received, and be reasonably satisfied with, all
documentation and information required by regulatory authorities under applicable "know your
customer" and anti-money laundering rules and regulations, including without limitation the
Patriot Act, to the extent such documentation or information is requested by the Administrative
Agent on behalf of the Lenders prior to the date of such proposed transaction.
(c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of all or
substantially all of its assets to any Person, or grant any option or other right to purchase, lease or
otherwise acquire such assets, except that the Borrower may sell, lease, transfer or otherwise
dispose of all or substantially all of its assets to any Person so long as the requirements set forth
in Section 5.02(b) are satisfied as if such disposition were a merger or consolidation in which the
Borrower is not the surviving entity.
63
(d) Use of Proceeds. Use the proceeds of any Extension of Credit to buy or carry
Margin Stock.
(e) Optional Redemption of Bonds. So long as any Bond Letter of Credit shall
remain outstanding, cause or permit delivery of a notice of an optional redemption or purchase of
the applicable Bonds or of a change in the interest modes (other than to or from a mode in which
interest is payable at a rate determined daily or weekly) on such Bonds resulting in a mandatory
redemption or purchase of such Bonds under the applicable Indenture, unless (i) the Borrower
has deposited with the Administrative Agent, the applicable LC Issuing Bank or the applicable
Trustee an amount equal to the principal of, premium, if any, and interest on such Bonds on the
date of such redemption or purchase, or (ii) any notice of such redemption or purchase or change
in the applicable interest mode is conditional upon receipt by the applicable Trustee or paying
agent on or prior to the date fixed for the applicable redemption or purchase of funds (other than
funds drawn under such Bond Letter of Credit) sufficient to pay the principal of premium, if
any, and interest on such Bonds on the date of such redemption or purchase.
(f) Amendments to Indenture. So long as any Bond Letter of Credit shall remain
outstanding, amend, modify, terminate or grant, or permit the amendment, modification,
termination or grant of, any waiver under (or consent to, or permit or suffer to occur any action
or omission which results in, or is equivalent to, an amendment, modification, or grant of a
waiver under) any provision of the applicable Indenture that would (i) directly affect the rights or
obligations of the applicable LC Issuing Bank under the applicable Related Documents without
the prior written consent of such LC Issuing Bank or (ii) have an adverse effect on the rights or
obligations of the Lenders hereunder without the prior written consent of the Required Lenders.
(g) Offtcial Statement, So long as any Bond Letter of Credit shall remain
outstanding, refer to the applicable LC Issuing Bank in the Official Statement with respect to the
applicable Bonds or make any changes in reference to such LC Issuing Bank in any revision,
amendment or supplement without the prior consent of such LC Issuing Bank, or revise, amend
or supplement such Official Statement without providing a copy of such revision, amendment or
supplement, as the case may be, to such LC Issuing Bank.
(h) Use of Proceeds of Bond Letter of Credit. So long as any Bond Letter of Credit
shall remain outstanding, permit any proceeds of such Bond Letter of Credit to be used for any
purpose other than the payment of the principal of, interest on, redemption price of and purchase
price of the applicable Bonds.
SECTION 5.03. Finoncial Covenant.
So long as any Loan shall remain unpaid, any Letter of Credit shall remain outstanding or
any Lender shall have any Commitment hereunder, the Borrower will maintain a ratio of
Consolidated Debt to Consolidated Capital of not greater than 0.65 to 1.00 as of the last day of
each fiscal quarter.
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.
If any of the following events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan when the same becomes
due and payable, or shall fail to pay any interest on any Loan or make any other payment of fees
or other amounts payable under this Agreement within five days after the same becomes due and
payable, or shall fail to provide Cash Collateral in accordance with Section 2.21(a)(v),2.22 or
6.02 within five days after the same is required to be provided; or
(b) Any representation or warranty made by the Borrower herein or by the Borrower
(or any of its officers) in connection with this Agreement shall prove to have been incorrect in
any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(b), 5.01O, 5.02 or 5.03, or (ii) the Borrower shall fail to perform or
observe any other term, covenant or agreement contained in this Agreement or any other Loan
Document if such failure shall remain unremedied for 30 days after written notice thereof shall
have been given to the Borrower by the Administrative Agent or any Lender; or
(d) The Borrower or any Material Subsidiary shall fail to pay any principal of or
premium or interest on any Debt (other than Debt under this Agreement) that is outstanding in a
principal amount in excess of $100,000,000 in the aggregate when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt and shall continue after
the applicable grace period, if any, specified in such agreement or instrument, if the effect of
such event or condition is to accelerate, or to pennit the acceleration of, the maturity of such
Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or redemption), prior to the
stated maturity thereof; or
(e) Any judgment or order for the payment of money in excess of $100,000,000 to
the extent not paid or insured shall be rendered against the Borrower or any Material Subsidiary
and either (i) enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(0 The Borrower or any Material Subsidiary shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be instituted by or against
the Borrower or any Material Subsidiary seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or
65
composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any Material Subsidiary shall take
any corporate action to authorize any of the actions set forth above in this subsection (0; or
(g) An ERISA Event shall have occurred that, when taken together with all other
EzuSA Events that have occurred, has resulted in, or is reasonably likely to result in, a Material
Adverse Effect; or
(h) (i) Berkshire Hathaway shall fail to own, directly or indirectly, at least 50% of the
issued and outstanding shares of common stock of the Borrower, calculated on a fully diluted
basis or (ii) MidAmerican Energy Holdings Company shall fail to own, directly or indirectly, at
least 80% of the issued and outstanding shares of common stock of the Borrower, calculated on a
fully diluted basis (each, a o'Change of Control'); provided that, in each case of the foregoing
clauses (i) and (ii), such failure shall not constitute an Event of Default unless and until a Rating
Decline has occurred;
then, and in any such event, the Administrative Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the obligation of the
Swingline Lender, each Lender and each LC Issuing Bank to make Extensions of Credit to be
terminated, whereupon the same shall forthwith terminate; (ii) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrower, declare the outstanding
Borrowings, all interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the outstanding Borrowings, all such interest and all such
amounts shall become and be forthwith due and payable by the Borrower, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States of America, (A)
the obligation of the Swingline Lender, each Lender and each LC Issuing Bank to make
Extensions of Credit shall automatically be terminated and (B) the outstanding Borrowings, all
such interest and all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived
by the Borrower; (iii) shall at the request, or may with the consent, of the Required Lenders by
notice to the Borrower, give notice of the occuffence of an Event of Default to the Trustee for
each series of Bonds supported by a Bond Letter of Credit issued for the account of the Borrower
and instruct such Trustee either to accelerate such Bonds, thereby causing such Bond Letter of
Credit to expire thereafter, per the terms of such Bond Letter of Credit, or to effect a mandatory
tender of such Bonds; and (iv) shall at the request, or may with the consent, of the Required
Lenders by notice to the Borrower, pursue any rights and remedies on behalf of the Lenders and
the applicable LC Issuing Bank that the Administrative Agent may have under the Related
Documents executed and delivered in connection with any Bond Letter of Credit.
66
In addition, if an o'Event of Default" (or any other similar term) under and as defined in
any Indenture executed and delivered in connection with any Bond Letter of Credit (a "Bond
Event of Defaalt") shall have occurred and be continuing, such circumstance shall constitute an
Event of Default hereunder solely for the purpose of permitting the exercise of the remedies
described in clauses (iii) and (iv) of the immediately preceding paragraph with respect to the
Bonds for which such Bond Event of Default exists and the related Bond Letter of Credit and not
for any other purpose under this Agreement. For the avoidance of doubt, a Bond Event of
Default shall not give the Administrative Agent the right to exercise any other remedy described
in the immediately preceding paragraph, unless such Bond Event of Default, or the facts and
circumstances underlying such Bond Event of Default, gives rise to another Event of Default
otherwise described in Section 6.01.
SECTION 6.02. Actions in Respect of the Letters of Credil upon Defoult.
If any Event of Default described in Section 6.01(f) with respect to the Borrower shall
have occurred and be continuing or the Borrowings shall have otherwise been accelerated or the
Commitments terminated pursuant to Section 6.01, then the Administrative Agent may, or shall
at the request of the Required Lenders, make demand upon the Borrower to, and forthwith upon
such demand the Borrower will, deposit in an account designated in such demand (the "LC
Collateral Accounf') with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders and LC Issuing Banks, in same day funds, an amount equal to
103% of the aggregate undrawn stated amounts of all Letters of Credit that are outstanding on
such date. If at any time the Administrative Agent determines that any funds held in the LC
Collateral Account are subject to any right or claim of any Person other than the Administrative
Agent, the Lenders and the LC Issuing Banks or that the total amount of such funds is less than
l03Yo of the aggregate undrawn stated amounts of all Letters of Credit that are outstanding on
such date, the Borrower will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the LC Collateral Account,
an amount equal to the excess of (i) 103% of such aggregate undrawn stated amounts of all
Letters of Credit that are outstanding on such date over (ii) the total amount of funds, if any, then
held in the LC Collateral Account that the Administrative Agent determines to be free and clear
of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on
deposit in the LC Collateral Account, such funds shall be applied to reimburse the relevant LC
Issuing Bank or Lender holding a participation in the reimbursement obligation of the Borrower
to such LC Issuing Bank to the extent permitted by Applicable Law.
rHEAD#$l"i'fu"lllo"r*,
SECTION 7.01. Appointment and Authority.
Each of the Swingline Lender, each Lender and each LC Issuing Bank hereby irrevocably
appoints JPMCB to act on its behalf as the Administrative Agent hereunder, under the other
Loan Documents and the Related Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely for the benefit of the Administrative
67
Agent, the Swingline Lender, the Lenders and the LC Issuing Banks, and the Borrower shall not
have rights as a third-party beneficiary of any of such provisions. It is understood and agreed
that the use of the term "agent" herein, in any other Loan Document or any Related Document
(or any other similar term) with reference to the Administrative Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency doctrine of any
Applicable Law. Instead such term is used as a matter of market custom, and is intended to
create or reflect only an administrative relationship between contracting parties.
SECTION 7.02. Rights as a Lender.
The Person serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent, and the term "Swingline Lender", "Lender" or "Lenders"
shall, unless otherwise expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual capacity. Such Person
and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial
advisor or in any other advisory capacity for, and generally engage in any kind of business with,
the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the Lenders.
SECTION 7.03, Exculpatory Provisions.
(a) The Administrative Agent shall not have any duties or obligations except those
expressly set forth herein, in the other Loan Documents and in the Related Documents, and its
duties hereunder shall be administrative in nature. Without limiting the generality of the
foregoing, the Administrative Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated
hereby, by the other Loan Documents or by the Related Documents that the
Administrative Agent is required to exercise as directed in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be expressly
provided for herein, in the other Loan Documents or in the Related Documents); provided
that the Administrative Agent shall not be required to take any action that, in its opinion
or the opinion of its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document, any Related Document or Applicable Law, including for
the avoidance of doubt any action that may be in violation of the automatic stay under
any Debtor Relief Law or that may effect a forfeiture, modification or termination of
property of a Defaulting Lender in violation of any Debtor Relief Law; and
(iii) shall not, except as expressly set forth herein, in the other Loan
Documents or in the Related Documents, have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or any of its
68
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
(b) The Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in
good faith shall be necessary, under the circumstances as provided in Sections 6.01, 6.02 and
8.01), or (ii) in the absence of its own gross negligence or willful misconduct as determined by a
court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent in writing by the Borrower, a Lender or an LC
Issuing Bank.
(c) The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in or in connection
with this Agreement, any other Loan Document or any Related Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document, any Related Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
SECTION 7.04. Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement, instrument, document or
other writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person. The Administrative Agent also may rely upon any statement
made to it orally or by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Leffer of
Credit, that by its terms must be fulfilled to the satisfaction of the Swingline Lender, a Lender or
an LC Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to
the Swingline Lender, such Lender or such LC Issuing Bank unless the Administrative Agent
shall have received notice to the contrary from the Swingline Lender, such Lender or such LC
Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or
experts.
SECTION 7,05. Resignation of Administrative Agent.
(a) The Administrative Agent may at any time give notice of its resignation to the
Swingline Lender, the Lenders, the LC Issuing Banks and the Borrower. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor, which shall be (i) a commercial bank with an office in the
United States having a combined capital and surplus of at least $500,000,000, or an Affiliate of
any such bank with an office in the United States and (ii) subject to the approval of the Borrower
so long as no Default shall have occurred and be continuing (such approval not to be
unreasonably withheld or delayed). If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the
Required Lenders) (the "Resignation Effective Dale"\, then the retiring Administrative Agent
may (but shall not be obligated to), on behalf of the Swingline Lender, the Lenders and the LC
Issuing Banks, appoint a successor Administrative Agent meeting the qualifications set forth
above. Whether or not a successor has been appointed, such resignation shall become effective
in accordance with such notice on the Resignation Effective Date.
(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to
clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by
Applicable Law, by notice in writing to the Borrower and such Person remove such Person as
Administrative Agent and, in consultation with the Borrower, appoint a successor, which shall be
(i) a commercial bank with an office in the United States having a combined capital and surplus
of at least 5500,000,000, or an Affiliate of any such bank with an office in the United States and
(ii) subject to the approval of the Borrower so long as no Default shall have occurred and be
continuing (such approval not to be unreasonably withheld or delayed). If no such successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the "Removal
Effective Date"), then such removal shall nonetheless become effective in accordance with such
notice on the Removal Effective Date.
(c) With effect from the Resignation Effective Date or the Removal Effective Date
(as applicable) (l) the retiring or removed Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents and (2) except for any
indemnity payments owed to the retiring or removed Administrative Agent, all payments,
communications and determinations provided to be made by, to or through the Administrative
Agent shall instead be made by or to the Swingline Lender, each Lender and each LC Issuing
Bank directly, until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided for above. Upon the acceptance of a successor's appointment
as Administrative Agent hereunder, such successor shall succeed to and become vested with all
of the rights, powers, privileges and duties of the retiring or removed Administrative Agent
(other than any rights to indemnity payments owed to the retiring or removed Administrative
Agent), and the retiring or removed Administrative Agent shall be discharged from all of its
duties and obligations hereunder, under the other Loan Documents or under the Related
Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the
same as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring or removed Administrative Agent's resignation or removal
70
hereunder, under the other Loan Documents and under the Related Documents, the provisions of
this Article and Section 8.04 shall continue in effect for the benefit of such retiring or removed
Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring or removed Administrative Agent
was acting as Administrative Agent.
(d) Notwithstanding anything in this Section 7.05 to the contrary, the retiring or
removed Administrative Agent shall continue to hold any collateral (including cash collateral
and collateral held under any Pledge Agreement) as bailee for the benefit of the LC Issuing
Banks and the Lenders until a successor Administrative Agent has been appointed in accordance
with this Section 7.05.
SECTION 7.06. Non-Reliance on Administrative Agent and Other Lenders.
Each Lender and LC Issuing Bank acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their Related Parties 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 Lender and LC Issuing Bank also
acknowledges that it will, independently and without reliance upon the Administrative Agent or
any other Lender or any of their Related Parties and based on such documents and information as
it shall from time to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document, any Related
Document or any related agreement or any document furnished hereunder or thereunder.
SECTION 7.07. Indemniftcation.
Each Lender severally agrees to indemnifl, the Administrative Agent (to the extent not
promptly reimbursed by the Borrower and without limiting its obligation to do so) from and
against such Lender's Commitment Percentage of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the Administrative
Agent in any way relating to or arising out of this Agreement, any other Loan Document or any
Related Document or any action taken or omitted by the Administrative Agent under this
Agreement, any other Loan Document or any Related Document; provided, Itowever, that no
Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative
Agent's gross negligence or willful misconduct, as proven in a court of competent jurisdiction by
final and nonappealable judgment. Without limitation of the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for its Commitment Percentage of
any costs and expenses (including, without limitation, fees and reasonable expenses of counsel)
payable by the Borrower under Section 8.04, to the extent that the Administrative Agent is not
promptly reimbursed for such costs and expenses by the Borrower (and without limiting its
obligation to do so) after request therefor. The failure of any Lender to reimburse the
Administrative Agent promptly upon demand for its Commitment Percentage of any amount
required to be paid by the Lender to the Administrative Agent as provided herein shall not
relieve any other Lender of its obligation hereunder to reimburse the Administrative Agent for its
Commitment Percentage of such amount, but no Lender shall be responsible for the failure of
7l
any other Lender to reimburse the Administrative Agent for such other Lender's Commitment
Percentage of such amount. Without prejudice to the survival of any other agreement of any
Lender hereunder, the agreement and obligations of each Lender contained in this Section 7.07
shall survive the payment in full of principal, interest and all other amounts payable hereunder.
SECTION 7.08. No Other Duties, etc.
Anything herein to the contrary notwithstanding, none of the Global Coordinator, the
Joint Lead Arrangers, the "Joint Bookrunners", the Syndication Agents or the Documentation
Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this
Agreement, any other Loan Document or any Related Document, except in its capacity, as
applicable, as the Administrative Agent, a Lender or an LC Issuing Bank hereunder or
thereunder.
,ftHl'"1H5t,
SECTION 8.01. Amendments, Etc.
Subject to Section 2.21(a)(i), no amendment or waiver of any provision of this
Agreement, nor consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Required Lenders and the
Borrower, and then such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that, no amendment, waiver or consent
shall, unless in writing and signed by each Lender directly affected thereby (other than, in the
case of clause (i), (v) or (vi) below, any Defaulting Lender), do any of the following: (i) amend
Section 3.01, 3.02 or 3.03 or waive any of the conditions specified therein, (ii) increase the
Commitment of any Lender or extend the Commitments (except pursuant to Section 2.06 or
2.07), (iii) reduce the principal of, or interest on, or rate of interest applicable to, the outstanding
Loans or any fees or other amounts payable hereunder, (iv) postpone any date fixed for any
payment of principal of, or interest on, the outstanding Loans, reimbursement obligations or any
fees or other amounts payable hereunder, (v) change the definition of Required Lenders or
change the percentage of the Commitments or of the aggregate unpaid principal amount of the
outstanding Borrowings, or the number or the percentage of Lenders, that shall be required for
the Lenders or any of them to take any action hereunder, or (vi) amend or waive this Section 8.01
or any provision of this Agreement that requires pro rata treatment of the Lenders; and provided
further that (x) no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent, the Swingline Lender or any LC Issuing Bank in addition to the Lenders
required above to take such action, affect the rights or duties of the Administrative Agent, the
Swingline Lender or such LC Issuing Bank, as the case may be, under this Agreement, and (y)
no amendment, waiver or consent shall, unless in writing and signed by the Administrative
Agent, the Swingline Lender, each LC Issuing Bank and the Required Lenders, amend or waive
Section 2.21. Notwithstanding the foregoinE, any provision of this Agreement may be amended
by an agreement in writing entered into by the Borrower, the Required Lenders and the
Administrative Agent if by the terms of such agreement the Commitment of each Lender and the
obligations of each LC Issuing Bank not consenting to the amendment provided for therein shall
terminate upon the effectiveness of such amendment (but such Lender or LC Issuing Bank shall
72
REDACTED
continue to be entitled to the benefits of Sections 2.15, 2.18 and 8.04), and such Lender or LC
Issuing Bank shall have received payment of an amount equal to the outstanding principal of its
Loans, any participations in Swingline Loans funded pursuant to Section 2.03(c) and any
participations in Letters of Credit funded pursuant to Section 2.04(e), together with all applicable
accrued interest thereon, accrued fees and all other amounts then payable to it hereunder and
under the other Loan Documents.
SECTION 8.02. Notices, Etc.
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below),
all notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent by
facsimile as follows:
(i) if to the Borrower, to it at 825 N.E. Multnomah Street, Suite 1900,
Portland, Oregon 97232-4116, Attention: Bruce N. Williams, Vice President and
Treasurer (Facsimile No.: [phone]; Telephone No. [phone]);
(iii) if to any LC Issuing Bank identified on Schedule II hereto, at the address
specified opposite its name on Schedule II hereto, and if to any other LC Issuing Bank, at
such address as shall be designated by such LC Issuing Bank in a written notice to the
Administrative Agent and the Borrower;
(iv) if to any Initial Lender, at its Domestic Lending Office specified opposite
its name on Schedule I hereto, and if to any other Lender (including the Swingline
Lender), at its Domestic Lending Office specified in the Assignment and Assumption
pursuant to which it became a Lender.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by facsimile shall be deemed to have
been given when sent (except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications, to the extent provided in
subsection (b) below, shall be effective as provided in said subsection (b).
(b) Electronic Communicotions. Notices and other communications to the
Swingline Lender, the Lenders and the Issuing Banks hereunder may be delivered or furnished
by electronic communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing shall not apply to
notices to the Swingline Lender, any Lender or any LC Issuing Bank pursuant to Section 2.02,
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2.03 or 2.04 if the Swingline Lender, such Lender or such Issuing Bank, as applicable, has
notified the Administrative Agent that it is incapable of receiving notices under such Section by
electronic communication. The Administrative Agent or the Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such procedures may be limited
to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender's receipt of
an acknowledgement from the intended recipient (such as by the "retunl receipt requested"
function, as available, return e-mail or other wriffen acknowledgement), and (ii) notices or
communications posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient, at its e-mail address as described in the foregoing
clause (i), of notification that such notice or communication is available and identiffing the
website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email
or other communication is not sent during the normal business hours of the recipient, such notice
or communication shall be deemed to have been sent at the opening of business on the next
business day for the recipient.
(c) Change of Address, etc. Any party hereto may change its address or facsimile
number for notices and other communications hereunder by notice to the other parties hereto.
(d) Platfurrn
(i) The Borrower agrees that the Administrative Agent may, but shall not be
obligated to, make the Communications (as defined below) available to the LC Issuing
Banks and the other Lenders by posting the Communications on Debt Domain, Intralinks,
Syndtrak or a substantially similar electronic transmission system (the "Platform").
(ii) The Platform is provided "as is" and "as available." The Agent Parties (as
defined below) do not warrant the adequacy of the Platform and expressly disclaim
liability for errors or omissions in the Communications. No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third-party rights or
freedom from viruses or other code defects, is made by any Agent Party in connection
with the Communications or the Platform. In no event shall the Administrative Agent or
any of its Related Parties (collectively, the "Agenl Parties") have any liability to the
Borrower, any Lender or any other Person or entity for damages of any kind, including,
without limitation, direct or indirect, special, incidental or consequential damages, losses
or expenses (whether in tort, contract or otherwise) arising out of the Borrower's or the
Administrative Agent's transmission of communications through the Platform except to
the extent that such damages are found in a judgment by a court of competent jurisdiction
by final and nonappealable judgment to have resulted from such Agent Party's gross
negligence or willful misconduct. "Communicalions" means, collectively, any notice,
demand, communication, information, document or other material provided by or on
behalf of the Borrower pursuant to any Loan Document or the transactions contemplated
therein which is distributed to the Administrative Agent, the Swingline Lender, any
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Lender or any LC Issuing Bank by means of electronic communications pursuant to this
Section, including through the Platform.
SECTION 8.03. No Waiver; Remedies.
No failure on the part of any Lender or the Administrative Agent to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise ofany such right preclude any other or further exercise thereofor the exercise of
any other right. The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 8.04, Costs and Expenses; Indemnijication.
(a) The Borrower agrees to pay promptly upon demand (i) all reasonable out-of-
pocket costs and expenses of the Administrative Agent and its Affiliates in connection with the
preparation, negotiation, execution, delivery, administration, modification and amendment of this
Agreement and the other documents to be delivered hereunder, including, without limitation, (A)
all due diligence, syndication (including printing, distribution and bank meetings), transportation,
computer, duplication, appraisal, consultant, and audit expenses and (B) the reasonable fees and
expenses of counsel for the Administrative Agent with respect thereto and with respect to
advising the Administrative Agent as to its rights and responsibilities under this Agreement, and
(ii) all reasonable out-of-pocket expenses incurred by any LC Issuing Bank in connection with
the issuance, amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder. The Borrower further agrees to pay promptly upon demand all reasonable
costs and expenses of the Administrative Agent, the Swingline Lender, the Lenders and the LC
Issuing Banks, if any, (A) in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued
hereunder, including all such reasonable out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit, including, without
limitation, reasonable fees and expenses of counsel for the Administrative Agent, the Swingline
Lender, the Lenders and the LC Issuing Banks in connection with the enforcement of rights
under this Section 8.04(a).
(b) The Borrower shall indemniff the Administrative Agent (and any sub-agent
thereof), the Swingline Lender, each Lender and each LC Issuing Bank, and each Related Party
of any of the foregoing Persons (each, an "fndemniJied Porty") from and against any and all
claims, damages, losses and liabilities, joint or several, to which any such Indemnified Party may
become subject, in each case arising out of or in connection with or relating to (including,
without limitation, in connection with any investigation, litigation or proceeding or preparation
of a defense in connection therewith) this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Extensions of Credit, and shall
reimburse any Indemnified Party for any and all reasonable expenses (including, without
limitation, reasonable fees and expenses of counsel) as they are incurred in connection with the
investigation ofor preparation for or defense ofany pending or threatened claim or any action or
proceeding arising therefrom, whether or not such Indemnified Party is a pa/y @ut if not a party
thereto, then only with respect to such proceedings where such Indemnified Party (i) is subject to
75
legal process or other compulsion of law, (ii) believes in good faith that it will be so subject, or
(iii) believes in good faith that it is necessary or appropriate for it to resist any legal process or
other compulsion of law which is purported to be asserted against it) and whether or not such
claim, action or proceeding is initiated or brought by or on behalf of the Borrower or any of its
Affiliates and whether or not any of the transactions contemplated hereby are consummated or
this Agreement is terminated, except to the extent such claim, damage, loss, liability or expense
is found in a judgment by a court of competent jurisdiction by final and nonappealable judgment
to have resulted from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity in this Section
8.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, shareholders or creditors or an Indemnified
Party or any other Person or any Indemnified Party is otherwise a party thereto and whether or
not the transactions contemplated hereby are consummated. The Borrower agrees not to assert
any claim against the Administrative Agent, any Lender, any of their respective Affiliates, or any
of their respective directors, officers, employees, attomeys and agents, on any theory of liability,
for special, indirect, consequential or punitive damages arising out of or otherwise relating to this
Agreement, any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Extensions of Credit. This Section 8.0a@) shall not apply with respect to Taxes
that are Indemnified Taxes, Excluded Taxes or Taxes that are covered by Section 2.15(a)(ii).
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate Revolving
Loan is made by the Borrower to or for the account of a Lender other than on the last day of the
Interest Period for such Revolving Loan, as a result of a payment or Conversion pursuant to
Section 2.06(c),2.07(c),2.09,2.12(b),2.13,2.14,2.15 or 2.16, acceleration of the maturity of
the outstanding Bonowings pursuant to Section 6.01, assignment to another Lender upon
demand of the Borrower pursuant to Section 2.20(b) or for any other reason (in the case of any
such payment or Conversion), the Borrower shall, promptly upon demand by such Lender (with
a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss (other than loss of Applicable Margin), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Loan.
(d) Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in Sections 2.16,2.19 and
8.04 shall survive the payment in full of principal, interest and all other amounts payable
hereunder.
(e) The Borrower agrees that no lndemnified Party shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to the Borrower or its respective security
holders or creditors related to or arising out of or in connection with this Agreement, the
Extensions of Credit or the use or proposed use of the proceeds thereof, any of the transactions
contemplated by any of the foregoing or in the loan documentation and the performance by an
Indemnified Party by any of the foregoing except to the extent that any loss, claim, damage,
liability or expense is found in a judgment by a court of competent jurisdiction by final and
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nonappealable judgment to have resulted from such Indemnified Party's gross negligence or
willful misconduct.
(0 In the event that an Indemnified Party is requested or required to appear as a
witness in any action brought by or on behalf of or against the Borrower or any of its Affiliates
in which such Indemnified Party is not named as a defendant, the Borrower agrees to reimburse
such Indemnified Party for all reasonable expenses incurred by it in connection with such
Indemnified Party's appearing and preparing to appear as such a witness, including, without
limitation, the fees and disbursements of its legal counsel.
SECTION 8.05. Right of Set-olf,
Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the
making of the request or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the outstanding Borrowings due and payable pursuant to the
provisions of Section 6.01, each Lender, each LC Issuing Bank, the Swingline Lender and each
of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest
extent permitted by Applicable Law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency) at any time held, and other
obligations (in whatever currency) at any time owing, by such Lender, such LC Issuing Bank, the
Swingline Lender or any such Affiliate, to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter existing under this
Agreement or any other Loan Document to such Lender, such LC Issuing Bank or the Swingline
Lender or their respective Affiliates, irrespective of whether or not such Lender, such LC Issuing
Bank, the Swingline Lender or such Affiliate shall have made any demand under this Agreement
or any other Loan Document and although such obligations of the Borrower may be contingent
or unmatured or are owed to a branch, office or Affiliate of such Lender, such LC Issuing Bank
or the Swingline Lender different from the branch, office or Affiliate holding such deposit or
obligated on such indebtedness; provided that in the event that any Defaulting Lender shall
exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the provisions of Section 2.21
and, pending such payment, shall be segregated by such Defaulting Lender from its other funds
and deemed held in trust for the benefit of the Administrative Agent, the Swingline Lender, the
LC Issuing Banks, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the
Administrative Agent a statement describing in reasonable detail the obligations of the Borrower
owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each
Lender, each LC Issuing Bank, the Swingline Lender and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of setoff) that such
Lender, such LC Issuing Bank, the Swingline Lender or their respective Affiliates may have.
Each Lender, each LC Issuing Bank and the Swingline Lender agrees to notiff the Borrower and
the Administrative Agent promptly after any such setoff and application; provided that the
failure to give such notice shall not affect the validity of such setoff and application.
SECTION 8.06. Binding Effect.
This Agreement shall become effective when it shall have been executed by the Borrower
and the Administrative Agent and when the Administrative Agent shall have been notified by
77
each Initial Lender that such Initial Lender has executed it and thereafter shall be binding upon
and inure to the benefit of the Borrower, the Administrative Agent, the Swingline Lender, each
Lender and each LC Issuing Bank (upon its appointment pursuant to Section 2.04) and their
respective successors and assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of all of the Lenders.
SECTION 8.07. Assignments and Participations.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of the Administrative Agent,
the Swingline Lender, each Lender and each LC Issuing Bank, and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of subsection (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null and void). Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any Person (other
than the parties hereto, their respective successors and assigns permitted hereby, Participants to
the extent provided in subsection (d) of this Section and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Swingline Lender, the LC
Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason
of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that any such
assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and/or the Loans at the time owing to it or
contemporaneous assignments to related Approved Funds that equal at least the
amount specified in subsection (bXiXB) of this Section in the aggregate or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund,
no minimum amount need be assigned; and
(B) in any case not described in subsection (bXiXA) of this Section,
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if "Trade
Date" is specified in the Assignment and Assumption, as of the Trade Date) shall
not be less than $5,000,000, or an integral multiple of $1,000,000 in excess
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thereof, unless each of the Administrative Agent and, so long as no Default has
occurred and is continuing, the Borrower otherwise consents (each such consent
not to be unreasonably withheld or delayed).
(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement with respect to the Loan or the Commitment assigned.
(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (x) an Event of Default has occurred
and is continuing at the time of such assignment, or (y) such assignment is to a
Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower
shall be deemed to have consented to any such assignment unless it shall object
thereto by written notice to the Administrative Agent within ten Business Days
after having received notice thereof;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments if such
assignment is to a Person that is not a Lender with a Commitment, an Affiliate of
such Lender or an Approved Fund; and
(C) the consent of each LC Issuing Bank and Swingline Lender shall
be required for any assignment.
(iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500; provided that the Administrative Agent
may, in its sole discretion, elect to waive such processing and recordation fee in the case
of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made to
(A) the Borrower or any of the Borrower's Affiliates (except for any Affiliate of
Berkshire Hathaway not controlled directly or indirectly by the Borrower that is a
commercial lender acquiring rights and obligations under this Agreement in the ordinary
course of its business) or Subsidiaries or (B) to any Defaulting Lender or any of its
Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute
any of the foregoing Persons described in this clause (B).
(vi) No Assignment to Naturol Persons, No such assignment shall be made to
a natural Person.
(vii) Certain Additional Payments. In connection with any assignment of
rights and obligations of any Defaulting Lender hereunder, no such assignment shall be
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effective unless and until, in addition to the other conditions thereto set forth herein, the
parties to the assignment shall make such additional payments to the Administrative
Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which
may be outright payment, purchases by the assignee of participations or
subparticipations, or other compensating actions, including funding, with the consent of
the Borrower and the Administrative Agent, the applicable pro rata share of Loans
previously requested but not funded by the Defaulting Lender, to each of which the
applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisff in
full all payment liabilities then owed by such Defaulting Lender to the Administrative
Agent, each LC Issuing Bank, each Swingline Lender and each other Lender hereunder
(and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata
share of all Loans and participations in Letters of Credit and Swingline Loans in
accordance with its Commitment Percentage. Notwithstanding the foregoing, in the
event that any assignment of rights and obligations of any Defaulting Lender hereunder
shall become effective under Applicable Law without compliance with the provisions of
this subsection, then the assignee of such interest shall be deemed to be a Defaulting
Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection
(c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under
this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to be a party
hereto) but shall continue to be entitled to the benefits of Sections 2.15, 2.18 and 8.04 with
respect to facts and circumstances occurring prior to the effective date of such assignment;
provided, that except to the extent otherwise expressly agreed by the affected parties, no
assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party
hereunder arising from that Lender's having been a Defaulting Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as a non-
fiduciary agent of the Borrower, shall maintain at its address referred to in Section 8.02 a copy of
each Assignment and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments and Termination Date of, and principal
amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof
from time to time (the "Registef'). The entries in the Register shall be conclusive absent
manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement. The Register shall be available for inspection by
the Borrower, the Swingline Lender, any LC Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
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(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
Person or the Borrower or any of the Borrower's Affiliates (except for any Affiliate of Berkshire
Hathaway not controlled directly or indirectly by the Borrower that is a commercial lender
acquiring participations under this Agreement in the ordinary course of its business) or
Subsidiaries) (each, a"Participanf') in all or a portion of such Lender's rights andlor obligations
under this Agreement (including all or a portion of its Commitment and/or the Loans owing to
it); provided that (i) such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations, and (iii) the Borrower, the Administrative Agent, the LC Issuing Banks and
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations underthis Agreement. Forthe avoidance of doubt, each Lender
shall be responsible for the indemnity under Section 7.07 with respect to any payments made by
such Lender to its Participant(s).
Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in Section 8.01 requiring
the consent of each Lender directly affected thereby that directly affects such Participant. The
Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15,2.18 and
8.04(c) (subject to the requirements and limitations therein, including the requirements under
Section 2.18(g) (it being understood that the documentation required under Section 2.18(g) shall
be delivered to the participating Lender or the applicable Withholding Agent to the extent
required by Applicable Law)) to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this Section; provided that such Participant
(A) agrees to be subject to the provisions of Section 2.20 as if it were an assignee under
subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment under
Section 2.15 or 2.18, with respect to any participation, than its participating Lender would have
been entitled to receive. Each Lender that sells a participation agrees, at the Borrower's request
and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the
provisions of Section 2.20(b) with respect to any Participant. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 8.05 as though it were a Lender;
provided that such Participant agrees to be subject to Section 2.19 as though it were a Lender.
Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent
of the Borrower, maintain a register on which it enters the name and address of each Participant
and the principal amounts (and stated interest) of each Participant's interest in the Loans or other
obligations under the Loan Documents (the "Participant Registef'); provided that no Lender
shall have any obligation to disclose all or any portion of the Participant Register (including the
identity of any Participant or any information relating to a Participant's interest in any
Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any
Person except to the extent that such disclosure is necessary to establish that such Commitment,
Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-l(c) of the
United States Treasury Regulations or to comply with other requirements under applicable tax
law. The entries in the Participant Register shall be conclusive absent manifest error, and such
Lender shall treat each Person whose name is recorded in the Participant Register as the owner of
8l
such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent)
shall have no responsibility for maintaining a Participant Register.
(e) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve Bank or any other
central banking authority; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 8.08. Conftdentiality.
Neither the Administrative Agent nor any Lender shall disclose any Confidential
Information to any other Person without the consent of the Borrower, other than (i) to the
Administrative Agent's or such Lender's Affiliates and their officers, directors, employees,
agents and advisors, to the Administrative Agent or a Lender and, as contemplated by Section
8.07, to actual or prospective assignees and participants, and then only on a confidential basis,
(ii) as required by any law, rule or regulation or judicial process, (iii) to any rating agency when
required by it, provided,that, prior to any such disclosure, such rating agency, commercial paper
dealer or provider shall undertake to preserve the confidentiality of any Confidential Information
received by it from such Lender, (iv) as requested or required by any state, federal or foreign
authority or examiner regulating banks, banking or other financial institutions, (v) to any direct,
indirect, actual or prospective counterparty (and its advisor) to any swap, derivative or
securitization transaction related to the obligations under this Agreement on a confidential basis,
(vi) to any credit insurance provider relating to the Borrower and its obligations on a confidential
basis and (vi) pursuant to a request or requirement from a regulatory authority (govemmental or
non-governmental self-regulatory authority) having jurisdiction over a Lender; provided that
unless prohibited by Applicable Law, each Lender and the Administrative Agent agree, prior to
disclosure thereof, to notiff the Borrower of any request for disclosure of any such Confidential
Information (x) by any Governmental Authority or representative thereof (other than any such
request in connection with an examination of such Lender or the Administrative Agent by such
Governmental Authority) or (y) pursuant to legal process.
SECTION 8.09. Governing Law.
EACH LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-I4OI OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD
REQUIRE APPLICATION OF ANOTHER LAW.
SECTION 8. I 0. Severability.
In the event any one or more of the provisions contained in this Agreement should be
held invalid, illegal or unenforceable in any respect, the validity, Iegality and enforceability of
the remaining provisions contained herein shall not in any way be affected or impaired hereby.
82
SECTION 8.11. Execution in Counterparts,
This Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Agreement by telecopier or other electronic
transmission (including by e-mail with a PDF attachment of an executed counterpart) shall be
effective as delivery of an original executed counterpart of this Agreement.
SECTION 8.12. lurisdiction, Etc.
(a) Each party hereto hereby irrevocably and unconditionally agrees that it will not
commence any action, litigation or proceeding of any kind or description, whether in law or
equity, whether in contract or in tort or otherwise, against the Administrative Agent, the
Swingline Lender, any Lender, any LC Issuing Bank, or any Related Party of the foregoing in
any way relating to this Agreement or any other Loan Document or the transactions relating
hereto or thereto, in any forum other than the courts of the State of New York sitting in the
Borough of Manhattan in New York City, and of the United States District Court of the Southern
District of New York sitting in the Borough of Manhattan in New York City, and any appellate
court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to
the jurisdiction of such courts and agrees that all claims in respect of any such action, litigation
or proceeding may be heard and determined in such New York State court or, to the fullest extent
permitted by applicable law, in such federal court. Each party hereto agrees that a final judgment
in any such action, litigation or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(b) The Borrower irrevocably and unconditionally waives, to the fullest extent
permiued by Applicable Law, any objection that it may now or hereafter have to the laying of
venue of any action or proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (a) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Each party hereto irrevocably consents to service of process in the manner
provided for notices in Section 8.02. Nothing in this Agreement will affect the right of any party
hereto to serve process in any other manner permitted by Applicable Law.
SECTION 8.13. l{aiver of Jury Trial.
EACH PARTY HERETO HEREBY TRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR TNDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
oN CONTRACT, TORT OR ANY OTHER THEORY) OR THE ACTTONS OF THE
ADMINISTRATIVE AGENT, THE SWINGLINE LENDER, ANY LC ISSUING BANK, THE
BORROWER OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION,
83
PEMORMANCE OR ENFORCEMENT THEREOF. TO THE EXTENT THEY MAY
LEGALLY DO SO, BORROWER, THE ADMINISTRATIVE AGENT, THE SWINGLTNE
LENDER, THE LC ISSUING BANKS AND THE LENDERS HEREBY AGREE THAT ANY
SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING SHALL BE
DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO
MAY FILE AN ORIGINAL COLINTERPART OR A COPY OF THIS SECTION WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR
PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY. EACH
PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTFIER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN TNDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 8.14. USA Patriot Act.
Each Lender that is subject to the Patriot Act and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law as of October 26,2001)) (as
amended, restated, modified or otherwise supplemented from time to time, the "Patriot Acf'), it
is required to obtain, veriff and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information that will allow
such Lender or the Administrative Agent, as applicable, to identiff the Borrower in accordance
with the Patriot Act. The Borrower shall, and shall cause each of its Subsidiaries to, provide to
the extent commercially reasonable, such information and take such actions as are reasonably
requested by the Administrative Agent or any Lender in order to assist the Administrative Agent
and the Lenders in maintaining compliance with the Patriot Act.
SECTION 8.15. No Fiduciary DuA.
The Credit Parties and their respective Affiliates (collectively, solely for purposes of this
Section, the "Lender Parties"), may have economic interests that conflict with those of the
Borrower, its securities holders and/or their Affiliates. The Borrower agrees that nothing in the
Loan Documents or the Related Documents will be deemed to create an advisory, fiduciary or
agency relationship or fiduciary or other implied duty between any Lender Party, on the one
hand, and the Borrower, its securities holders or its Affiliates, on the other hand. The Borrower
acknowledges and agrees that (i) the transactions contemplated by the Loan Documents and the
Related Documents (including the exercise of rights and remedies hereunder and thereunder) are
arm's-length commercial transactions between the Lender Parties, on the one hand, and the
Borrower, on the other, and (ii) in connection therewith and with the process leading thereto, (x)
no Lender Party has assumed an advisory or fiduciary responsibility in favor of the Borrower, its
securities holders or its Affiliates with respect to the transactions contemplated hereby (or the
exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of
whether any Lender Party has advised, is currently advising or will advise the Borrower, its
securities holders or its Affiliates on other matters), and (y) each Lender Party is acting solely as
84
principal hereunder and under the other Loan Documents and the Related Documents and not as
the agent or fiduciary of the Borrower, its management, securities holders or creditors. The
Borrower acknowledges and agrees that it has consulted its own legal and financial advisors to
the extent it deemed appropriate and that it is responsible for making its own independent
judgment with respect to such transactions and the process leading thereto. The Borrower agrees
that it will not claim that any Lender Party has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Borrower, in connection with the transactions
contemplated by the Loan Documents or the Related Documents or the process leading thereto.
SECTION 8.16. Waiver of Notice of Termination of Existing Credit Agreement.
Each of the Lenders party hereto that is party to the Existing Credit Agreement, in its
capacity as a "Lender" under the Existing Credit Agreement, hereby waives as of the date hereof
the notice requirement under Section 2.10 of the Existing Credit Agreement for three Domestic
Business Days' (as defined in the Existing Credit Agreement) prior notification of termination of
the commitments thereunder.
[Remainder of page intentionally left blank.]
s-l
PACIFICORP,
as Borrower
By /s/ Rnrce N Williams
Name: Bruce N. Williams
Title: Vice President and Treasurer
Signature Page to PacifiCorp Credit Agreement
s-2
JPMORGAI\I CHASE BANK, N.A.,
as Administrative Agent, Swingline Lender, an
LC Issuing Bank and a Lender
/s/ Peter Christensen
Name: Peter Christensen
Title: Vice President
Signature Page to PacifiCorp CreditAgreement
s-3
LENDERS:
THE ROYAL BANK OF SCOTLAIID PLC,
as a Lender
By /s/ Peter Harrineton
Name: Peter HarringtonTitle: ManagingDirector
Sigrature Page to PacifiCorp Credit Agreement
s-4
BARCLAYS BANK PLC,
as an LC Issuing Bank and a Lender
By /s/ Ann E- Sutlon
Name: Ann E. SuttonTitle: Director
Signature Page to PacifiCorp Credit Agreement
s-5
WELLS FARGO BArlK, NATIONAL
ASSOCIATTON,
as an LC Issuing Bank and a Lender
By /s/ Gabriela Ramirez
Name: Gabriela RamirezTitle: Assistant Vice President
Signature Page to PacifiCorp Credit Agreement
s-6
u.s. BA IK, NATIONAL ASSOCIATION,
as a Lender
By /s/ Holland H. Williams
Name: Holland H. Williams
Title: AVP & Portfolio Manager
Signature Page to PacifiCorp Credit A$eement
s-7
uNroN BANK N.A.,
as a Lender
lslMatt Curtin
Name: Matt CurtinTitle: Associate
Signature Page to PacifiCorp Credit Agreement
s-8
BNP PARIBAS,
as a Lender
By
By
/s/ Denis O'Meara
Name: Denis O'Meara
Title: ManagingDirector
/s/ Fancis Delanev
Name: Francis Delaney
Title: ManagingDirector
Signature Page to PacifiCorp Credit Agreernent
s-9
CITIBANK N.A.,
as a Lender
By /s/ Sandio Sen
Name: Sandip Sen
Title: Managing Director and Vice President
Sigrrature Page to PacifiCorp Credit Agreement
s-10
rvtrztrHo coRPoRATE BANK LTD.,
as a Lender
By /s/ Tenva Mitsuboshi
Name: Tenya Mitsuboshi
Title: Deputy General Manager
Signature Page to PacifiCorp Credit Agreement
s-1 I
ROYAL BANK OF CANADA,
as a Lender
By /s/ Kvle E. Hoffman
Name: Kyle E. Hoffman
Title: AuthorizedSignatory
Signature Page to PacifiCorp Credit Agreement
s-12
COBAI\iK, ACB,
as a Lender
/s/.Iosh Batchelder
Name: Josh BatchelderTitle: Vice President
Signature Page to PacifiCorp Credit Agre€ment
s-13
NATIONAL COOPERATIYE SERVICES
CORPORATION,
as a Lender
By /s/ Daniel Lvzinski
Name: Daniel Lyzinski
Title: AssistantSecretaryTreasurer
Signature Page to PacifiCorp Credit Agreement
s-14
CANADIAI\ IMPERIAL BAI\K OF
COMMERCE, NEW YORK AGENCY,
as a Lender
By /s/ Robert Casev
By
Name: Robert Casey
Title: AuthorizedSignatory
/s/ Gordon Eadon
Name: Gordon Eadon
Title: AuthorizedSignatory
Signature Page to PacifiCorp Credit Agreement
s-1 5
DEUTSCHE BANK AG NEW YORK
BRANCH,
as a Lender
By /s/ Mine K. Chu
By
Name: Ming K. Chu
Title: Vice President
/s/ Virsinia Cosenza
Signature Page to PacifiCorp Credit Agreement
s-16
KEYBAI\K NATIONAL ASSOCIATION,
as a Lender
/s/ Kevin D. Smith
Name: Kevin D. Smith
Title: Senior Vice President
By
Signature Page to PacifiCorp Credit Agreement
s-17
LLOYDS TSB BANK PLC,
as a Lender
/s/ Julia R. Franklin
Name: Julia R. Franklin
Title: Vice President - F0l4
By /s/ Stephen Giacolone
Name: Stephen GiacoloneTitle: Assistant Vice President - G01l
By
Signature Page to PacifiCorp Credit Agreement
s-18
STJMITOMO N{ITSUI BAI\KING
CORPORATION,
as a Lender
/s/ Shuii Yabe
Name: Shuji Yabe
Title: ManagingDirector
Signature Page to PacifiCorp Credit Agreement
s-19
TIIE BANK OF NEW YORK MELLON,
as a Lender
/s/ Richard K. Fronanfel- Jr.
Name: Richard K. Fronapfel, Jr.
Title: Vice President
Signature Page to PacifiCorp Credit Agreement
s-20
THE BANK OF NOVA SCOTIA,
as a Lender
By /s/ Thaqe Rattew
Name: Thane Rattew
Title: ManagingDirector
Signature PagB to PacifiCorp Credit Agreement
s-21
TIIE NORTHERN TRUST COMPANY,
as a Lender
/s/ Wicks Barkhausen
Name: Wicks Barkhausen
Title: Offrcer
Sigaature Page to PacifiCorp Credit Agreement
s-22
PNC BANK NATIONAL ASSOCIATION,
as a Lender
By /s/ Dale Stein
Name: Dale Stein
Title: Senior Vice President
Signature Page to PacifiCorp Credit Agreement
EXHIBIT A
(to the Credit Agreement)
FORM OF NOTICE OF BORROWING
JPMorgan Chase Bank, N.A., as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
Attention: Agency Group
[Date]
Ladies and Gentlemen:
The undersigned, PacifiCorp, refers to the Credit Agreement, dated as of March 27 ,2013
(as amended or modified from time to time, the "Credit Agreement " the terms defined therein
being used herein as therein defined), among the undersigned, the Lenders and LC Issuing Banks
party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent and as Swingline
Lender, and hereby gives you notice, irrevocably, pursuant to Section 2.02(a) of the Credit
Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in
that connection sets forth below the information relating to such Borrowing (the "Proposed
Borrowing!') as required by Section2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
20-.
(ii) The Type of Loans comprising the Proposed Borrowing is [Base Rate
Loansl[Eurodollar Rate Revolving Loans].
(iii) The aggregate amount of the Proposed Borrowing is
[(iv)
as part ofthe
The initial Interest Period for each Eurodollar Rate Revolving Loan made
Proposed Borrowing is monthIs].1
The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 of the Credit
Agreement (other than the representations and warranties in the first sentence of
Section 4.01(9), in Section 4.01(D and in the first sentence of Section a.Ol(n)) are true
and correct in all material respects on and as of the date hereof, before and after giving
effect to the Proposed Borrowing and to the application of the proceeds therefrom, as
though made on the date hereof; and
A-2
(B) no event has occurred and is continuing, or would result from the
Proposed Borrowing or from the application of the proceeds therefrom, that constitutes a
Default.
Very truly yours,
PACIFICORP
By,
Name:
Title:
EXHIBIT B
(to the Credit Agreement)
FORM OF REQUEST FOR ISSUAI\CE
JPMorgan Chase Bank, N.A., as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
Attention: Letter of Credit Department
[ ], as LC Issuing Bank
[Date]
Ladies and Gentlemen:
The undersigned, PacifrCorp, refers to the Credit Agreement, dated as of March 27,2013
(as amended or modified from time to time, the "Credit Agreement " the terms defined therein
being used herein as therein defined), among the undersigned, the Lenders and LC Issuing Banks
party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent and as Swingline
Lender, and hereby gives you notice pursuant to Section 2.04(a) of the Credit Agreement that the
undersigned hereby requests the issuance of a Letter of Credit (the "Requested Letter of Credif')
in accordance with the following terms:
(i) the LC Issuing Bank is
(ii) the requested date of [issuance] [extension]
of the Requested Letter of Credit (which is a Business Day)
(iii)
-;r
(iv)
[modification]
is
[amendment]
)
the expiration date of the Requested Letter of Credit requested hereby is
(v)
an address at
the .;roposed stated amount of the Requested Letter of Credit is
the beneficiary of the Requested Letter of Credit is
: and
(vi) the conditions under which a drawing may be
Letter of Credit are as follows:
under the Requested
(vii) any other additional conditions are as follows:
Date may not be later than the fifth Business Day preceding the Termination Date applicable under the
terms of the Credit Agreement.
Must be minimum of $100,000.
, with
made
; and
B-2
The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the [issuance] [extension] [modification] [amendment] of the
Requested Letter of Credit:
(A) the representations and warranties contained in Section 4.01 of the Credit
Agreement (other than the representations and warranties in the first sentence of Section 4.01(g),
in Section 4.01(i) and in the first sentence of Section a.0l(n)) are true and correct in all material
respects on and as ofthe date hereof, before and after giving effect to the [issuance] [extension]
[modification] [amendment] of the Requested Letter of Credit and to the application of the
proceeds therefrom, as though made on and as of the date hereof; and
(B) no event has occurred and is continuing, or would result from the [issuance]
[extension] [modification] [amendment] of the Requested Letter of Credit or from the application
of the proceeds therefrom, that constitutes a Default.
[The undersigned hereby further certifies that, on the date of the issuance of the
Requested Letter of Credit, the conditions precedent set forth in Section 3.03 of the Credit
Agreement will be satisfied.l3
PACIFICORP
Name:
Title:
Consented to as of the datea
first above written:
INAME OF LETTER OF CREDIT BENEFICIARY]
Name:
Title:
Necessary only for issuance of a Bond Letter of Credit.
Necessary only for modification or amendment
By
By
EXHIBIT C
(to the Credit Agreement)
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between [the][each]r Assignor
identified in item I below ([the][each, anf "Assignot'') and [the][each]2 Assignee identified in
item 2 below ([the][each, anf "Assignee"). [It is understood and agreed that the rights and
obligations of [the Assignors][the Assignees]3 hereunder are several and not joint.la Capitalized
terms used but not defined herein shall have the meanings given to them in the Credit Agreement
identified below (as amended, the *Credit Agreement"), receipt of a copy of which is hereby
acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex
I attached hereto are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and
assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably
purchases and assumes from [the Assignor][the respective Assignors], subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the
Assignor'sl[the respective Assignors'] rights and obligations in [its capacity as a Lender][their
respective capacities as Lenders] under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage interest
identified below of all of such outstanding rights and obligations of [the Assignor][the respective
Assignorsl under the respective facilities identified below (including without limitation any
leffers of credit, guarantees, and swingline loans included in such facilities), and (ii) to the extent
permitted to be assigned under applicable law, all claims, suits, causes of action and any other
right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective
capacities as Lenders)] against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any]
Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein
collectively as [the][an] "Assigned Interest"). Each such sale and assignment is without
I For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a
single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose
the second bracketed language.
2 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single
Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the
second bracketed language.3 Select as appropriate.
a Include bracketed language if there are either multiple Assignors or multiple Assignees.
recourse to [the][any] Assignor and, except as
Assumption, without representation or warranty by
expressly provided in
[the][any] Assignor.
c-2
this Assignment and
aJ.
4.
5.
l. Assignor[s]:
[Assignor [is] [is not] a Defaulting Lenderl
2. Assignee[s]:
[for each Assignee, indicate [Affiliate][Approved Fund] of fidentify Lender)
Borrower(s): PacifiCorp
Administrative Agent:JPMorgan Chase Bank, N.A., as the administrative agent under the
Credit Agreement
Credit Agreement: The $600,000,000 Credit Agreement dated as of March 27, 2013
among PacifiCorp, the Lenders parties thereto, JPMorgan Chase
Bank, N.A., as Administrative Agent, and the LC Issuing Banks
parties thereto
6. Assigned Interest[s]:
Trade Date:l'o
[Page break]
5 List each Assignor, as appropriate.
o List each Assignee, as appropriate.7 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned
under this Assignment (e.g., "Revolving Credit Commitment" etc.)
8 Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the
Trade Date and the Effective Date.
e Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
'o To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be
determined as of the Trade Date.
17.
Assignor[s]5 AssigneeIs]6
Facility
AssigredT
Aggregate Amount of
Commitment/Loans for
all Lenderst
Amount of
Commitment/Loans
Assigneds
Percentage
Assigned of
Commitment/
Loanse
CUSIP
Number
$$%
$$%
$$%
Effective Date:
c-3
-,
20- [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNORI-SI ' '
INAME OF ASSTGNOR]
Title:
INAME OF ASSTGNOR]
Title:
ASSIGNEEISI'2
INAME OF ASSIGNEE]
Title:
INAME OF ASSIGNEE]
Title:
By
By
By
By
t' Add additional signature blocks as
applicable).t2 Add additional signature blocks as
applicable).
needed. Include both
needed. lnclude both
Fund/Pension
Fund./Pension
Plan and
Plan and
manager making the trade (if
manager making the trade (if
c-4
[Consented to and]r3 Accepted:
JPMORGAN CHASE BANK, N.A., AS
Administrative Agent
By
Title:
[Consented to:]ra
INAME OF RELEVANT PARTY]
Title:
13 To be added only if the consent of the Administrative Agent is required by the terms ofthe Credit Agreement.
'o To be added only if the consent of the Borrower and/or other parties (e.g. Swingline Lender, LC Issuing Bank) is
required by the terms of the Credit Agreement.
ANNEX 1
$600,000,000 Credit Agreement, dated as of March 27, 2013, among PacifiCorp, the Lenders
parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the LC Issuing Banks
parties thereto
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such]
Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it
has full power and authority, and has taken all action necessary, to execute and deliver
this Assignment and Assumption and to consummate the transactions contemplated
hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with
respect to (i) any statements, warranties or representations made in or in connection with
the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or
Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the
performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any
other Person of any of their respective obligations under any Loan Document.
1.2. Assignee[sJ. [The][Each] Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and deliver
this Assignment and Assumption and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii) it meets all the
requirements to be an assignee under Section 8.07(bxiii), (v) and (vi) of the Credit
Agreement (subject to such consents, if any, as may be required under Section 8.07(bxiii)
of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the
relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is
sophisticated with respect to decisions to acquire assets of the type represented by the
Assigned Interest and either it, or the Person exercising discretion in making its decision
to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has
received a copy of the Credit Agreement, and has received or has been accorded the
opportunity to receive copies of the most recent financial statements delivered pursuant to
clauses (i) and (ii) of Section 5.01(h) thereof, as applicable, and such other documents
and information as it deems appropriate to make its own credit analysis and decision to
enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest,
(vi) it has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Assignment and Assumption
and to purchase [the][such] Assigned Interest, and (vii) attached to the Assignment and
Assumption is any documentation required to be delivered by it pursuant to the terms of
the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b)
agrees that (i) it will, independently and without reliance on the Administrative Agent,
[the][any] Assignor or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.
2. Poymenls. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of [the][each] Assigned Interest (including payments of principal, interest,
fees and other amounts) to [the][the relevant] Assignee whether such amounts have accrued prior
to, on or after the Effective Date. The Assignor[s] and the Assignee[s] shall make all appropriate
adjustments in payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves. Notwithstanding the
foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts
paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be
governed by, and construed in accordance with, the law of the State of New York.
EXHIBIT D.l
(to the Credit Agreement)
FORM OF OPINION OF IN.IIOUSE COUNSEL FOR THE BORROWER
March 27,2013
To each of the Lenders and LC Issuing Banks
party to the Credit Agreement referred to below
and to JPMorgan Chase Bank, N.A., as
Administrative Agent and Swingline Lender thereunder
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(a)(v) of the Credit Agreement, dated as
of March 27,2013 (the "Credit Agreement"), among PacifiCorp (the "Borrowef'), the Lenders
and LC Issuing Banks party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent
and Swingline Lender. Terms defined in the Credit Agreement are used herein as therein
defined.
I am an Assistant General Counsel for MidAmerican Energy Holdings Company, indirect parent
of the Borrower, and have acted as counsel to the Borrower in connection with the preparation,
execution and delivery of the Credit Agreement and the other Loan Documents (as defined
below). I am generally familiar with the Borrower's corporate history, properties, operations and
charter (including amendments, restatements and supplements thereto).
In connection with this opinion, I, or afforneys over whom I exercise supervision, have
examined:
(l) The Credit Agreement and the promissory notes issued by the Borrower on the date
hereof in favor of (i) U.S. Bank National Association, (ii) CoBank, ACB and (iii)
Lloyds TSB Bank plc (collectively, the "Loan Documents").
(2) The documents furnished by the Borrower pursuant to Article III of the Credit
Agreement.
(3) The articles of incorporation of the Borrower.
(a) The bylaws of the Borrower and all amendments thereto.
(5) A certificate of the Secretary of State of Oregon, dated March 11,2013, affesting to
the continued existence and good standing of the Borrower in that State.
To each of the Lenders, LC Issuing Banks
and JPMorgan Chase Bank, N.A.
March 27,2013
Page2
In addition, I, or attorneys over whom I exercise supervision, have examined the originals, or
copies certified to my satisfaction, of such other corporate records of the Borrower, certificates
of public officials and of officers of the Borrower, and agreements, instruments and other
documents, as I have deemed necessary as a basis for the opinions expressed below.
In my examination, I, or afforneys over whom I exercise supervision, have assumed the
genuineness of all signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals and the conformity with the originals of all documents
submitted to us as copies. In making our examination of documents and instruments executed or
to be executed by persons other than the Borrower, I, or attorneys over whom I exercise
supervision, have assumed that each such other person had the requisite power and authority to
enter into and perform fully its obligations thereunder, the due authorization by each such other
person for the execution, delivery and performance thereof and the due execution and delivery
thereof by or on behalf of such person of each such document and instrument. In the case of any
such person that is not a natural person, I, or attorneys over whom I exercise supervision, have
also assumed, insofar as it is relevant to the opinions set forth below, that each such other person
is duly organized, validly existing and in good standing under the laws of the jurisdiction in
which it was created and is duly qualified and in good standing in each other jurisdiction where
the failure to be so qualified could reasonably be expected to have a material effect upon its
ability to execute, deliver and/or perform its obligations under any such document or instrument.
I, or attorneys over whom I exercise supervision, have further assumed that each document,
instrument, agreement, record and certificate reviewed by us for purposes of rendering the
opinions expressed below has not been amended by any oral agreement, conduct or course of
dealing between the parties thereto.
As to questions of fact material to the opinions expressed herein, I have relied upon certificates
and representations of officers of the Borrower (including but not limited to those contained in
the Credit Agreement and certificates delivered upon the execution and delivery of the Credit
Agreement) and of appropriate public officials, without independent verification of such matters
except as otherwise described herein.
Whenever my opinions herein with respect to the existence or absence of facts are stated to be to
my knowledge or awareness, it is intended to signi0/ that no information has come to my
attention or the attention of other counsel working under my direction in connection with the
preparation of this opinion letter that would give me or them actual knowledge of the existence
or absence of such facts. However, except to the extent expressly set forth herein, neither I nor
they have undertaken any independent investigation to determine the existence or absence of
such facts, and no inference as to my or their knowledge of the existence or absence of such facts
should be assumed.
I am admitted to the practice of law in the State of Iowa and do not purport to be expert on the
laws of any jurisdiction other than the laws of the State of Iowa and the Federal laws of the
United States. My opinions expressed below are limited to the laws of the State of Oregon and,
as to the opinions expressed in paragraph 4 below, the laws of the States of California, Idaho,
Utah, Washington and Wyoming, that are applicable to Borrower as a regulated public utility in
To each of the Lenders, LC Issuing Banks
and JPMorgan Chase Bank, N.A.
March 27,2013
Page 3
such states, and the Federal law of the United States. In rendering the opinions expressed herein
pertaining to matters relating to laws of the State of Oregon (other than with respect to the
opinion expressed in paragraph 4 below), I have relied upon the opinions of Jeffery B. Erb, Esq.,
Assistant General Counsel to the Borrower and a member of the bar of the State of Oregon,
whose opinion letter is affached hereto.
Based upon the foregoing and upon such investigation as I have deemed necessary, and subject
to the limitations, qualifications and assumptions set forth herein, I am of the following opinion:
l. The Borrower (a) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Oregon; (b) has the corporate power and
authority to conduct the business in which it is currently engaged and in which it
proposes to be engaged after the date hereof; and (c) is duly qualified as a foreign
corporation and is in good standing under the laws of each jurisdiction where it
conducts material business operations, except any such jurisdiction where the
failure to so qualifu could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
The Borrower has the corporate power and authority, and the legal right, to
execute and deliver each Loan Document and to perform its obligations under
each Loan Document. The Borrower has taken all necessary corporate action to
authorize the execution, delivery and performance of each Loan Document and
the incurrence of Advances on the terms and conditions of the Credit Agreement,
and each Loan Document has been duly executed and delivered by the Borrower.
The execution, delivery and perforTnance of each Loan Document will not violate
Applicable Law, the Borrower's articles of incorporation or bylaws, or any
material contractual restriction binding on or affecting the Borrower or any of its
properties.
No approval or authorization or other action by, and no notice to or filing with,
any governmental agency or regulatory body or other third person is required in
connection with the due execution and delivery of any Loan Document and the
performance, validity and enforceability of any Loan Document, other than
Decision 88-04-062 of the Public Utilities Commission of the State of Califomia
dated April 27,1988; Order No.32221of the Idaho Public Utilities Commission
issued April 8, 2011, in Case No. PAC-E-Il-09; Order No. 94-1240 and Order
No. 98-158 of the Public Utility Commission of Oregon issued August 17, 1994
and April 16, 1998, respectively; Order Establishing Compliance issued April 8,
1998, in Docket UE-980404, by the Washington Utilities and Transportation
Commission; Order Approving Securities Exemption and Accepting the
Substance and Format of the Quarterly Financing Activity Report To Be Filed
Thereunder issued November 1,2010, in Docket No. 20000-372-EA-10 (Record
No. 12519), by the Public Service Commission of Wyoming; Report and Order
)
J.
4.
To each of the Lenders, LC Issuing Banks
and JPMorgan Chase Bank, N.A.
March 27,2013
Page 4
issued May 10, 2007, in Docket No. 07-035-16, by the Public Service
Commission of Utah; and Letter Order issued November 29,201l, in Docket No.
ES I 1-51-000, by the Federal Energy Regulatory Commission, each of which has
been duly obtained and is in full force and effect.
5. Except as described in Section 4.01(9) of the Credit Agreement, no action, suit,
investigation, litigation, or proceeding, including, without limitation, any
Environmental Action, affecting the Borrower or any of its Material Subsidiaries
before any court, government agency or arbitrator is pending or, to my
knowledge, threatened, that could reasonably be expected to have a Material
Adverse Effect.
6. Neither the Borrower nor any Subsidiary is an "investment company" or a
company "controlled" by an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended.
I express no opinion as to (i) Section 8.05 of the Credit Agreement and (ii) the effect of the law
of any jurisdiction wherein any Lender may be located which limits the rates of interest which
may be charged or collected by such Lender.
This opinion letter has been rendered solely for your benefit in connection with the Credit
Agreement and the transactions contemplated thereby and may not be used, circulated, quoted,
relied upon or otherwise referred to by any other person (other than your respective counsel,
auditors and any regulatory agency having jurisdiction over you or as otherwise required
pursuant to legal process or other requirements of law) for any other purpose without my prior
written consent; provided that, (i) King & Spalding LLP, special counsel for the Administrative
Agent, may rely on the opinions expressed in this opinion letter in connection with the opinion to
be furnished by them in connection with the transactions contemplated by the Credit Agreement
and (ii) any person that becomes a Lender or an LC Issuing Bank after the date hereof may rely
on the opinions expressed in this opinion letter as though addressed to such person. I undertake
no responsibility to update or supplement this opinion in response to changes in law or future
events or circumstances.
Very truly yours,
Paul J. Leighton
Counsel for PacifiCorp
EXHIBIT D-2
(to the Credit Agreement)
FORM OF OPINION OF SPECIAL NEW YORK COUNSEL FOR THE BORROWER
March 27,2013
The Lenders listed on Schedule I hereto
and the Administrative Agent party to the
Credit Agreement referred to below
(collectively, the " Lender Parties")
c/o JPMorgan Chase Bank, N.A.,
as Administrative Agent
500 Stanton Christiana Road, Ops 2, Floor 03
Newark, DE,19713-2107
Re: PaciliCorp - Credit Agreement doted as of March 27, 2013
Ladies and Gentlemen:
We have acted as special counsel to PacifiCorp, an Oregon corporation (the "Compofl!"),
in connection with the Credit Agreement dated as of March 27 ,2013 (the "Credit Agreement) by
and among the Company, certain lenders (the "Lenders"), and JPMorgan Chase Bank, N.A., as
agent (in such capacity, the "Agenf') and a Lender. Each capitalized term used and not defined
herein has the meaning assigned to that term in the Credit Agreement. This opinion is delivered
pursuant to Section 3.01(a)(vi) of the Credit Agreement.
In rendering this opinion, we have examined the originals, or copies, certified or
otherwise identified to our satisfaction as being true copies, of the following documents and
instruments:
(i) the Credit Agreement, including the Exhibits and Schedules thereto; and
(ii) the Notes dated March 27,2013 (the "Notes") made by the Company payable
to certain Lenders and delivered on the date hereof.
The Credit Agreement and the Notes collectively are referred to herein as the "Financing
Documents."
We have assumed without independent investigation that:
(a) The signatures on all documents examined by us are genuine, all individuals
executing such documents had all requisite legal capacity and competency and were duly
authorized, the documents submitted to us as originals are authentic and the documents
submiued to us as certified or reproduction copies conform to the originals;
The Lender Parties
c/o JPMorgan Chase Bank, N.A.,
as Admini strative Agent
March 27,2013
Page2
(b) The Company is validly existing and in good standing under the laws of its
jurisdiction of organization, has all requisite power to execute and deliver each of the Financing
Documents and to perform its obligations thereunder, the execution and delivery of such
Financing Documents by the Company and performance of its obligations thereunder have been
duly authorizedby all necessary corporate or other action and, except as specifically addressed in
our opinions in paragraph 2 below, the execution and delivery of such Financing Documents by
the Company and performance of its obligations thereunder do not violate any law, rule,
regulation, order, judgment or decree applicable to the Company, and such Financing Documents
have been duly executed and delivered by the Company; and
(c) There are no agreements or understandings between or among any of the
parties to the Financing Documents or third parties that would expand, modift or otherwise
affect the terms of the Financing Documents or the respective rights or obligations of the parties
thereunder.
In rendering this opinion, we have made such inquiries and examined, among other
things, originals or copies, certified or otherwise identified to our satisfaction, of such records,
agreements, certificates, instruments and other documents as we have considered necessary or
appropriate for purposes of this opinion. As to certain factual matters, we have relied to the
extent we deemed appropriate and without independent investigation upon the representations
and warranties of the Company in the Financing Documents, officer's certificates of the
Company delivered pursuant to the Financing Documents or certificates obtained from public
officials and others.
Based upon the foregoing and in reliance thereon, and subject to the qualifications,
exceptions, assumptions and limitations herein contained, we are of the opinion that:
l. Each Financing Document constitutes a legal, valid and binding obligation of
the Company, enforceable against it in accordance with its terms.
2. The execution and delivery by the Company of the Financing Documents, and
performance of its obligations thereunder do not and will not violate, or require any filing with or
approval of any governmental authority or regulatory body of the State of New York or the
United States of America under, any law, rule or regulation of the State of New York or the
United States of America applicable to the Company that, in our experience, is generally
applicable to transactions in the nature of those contemplated by the Financing Documents.
The opinions expressed above are subject to the following additional exceptions,
qualifications, limitations and assumptions:
A. We render no opinion herein as to matters involving the laws of any
jurisdiction other than the State of New York and the United States of America. This opinion is
limited to the effect of the current state of the laws of the State of New York, the United States of
America and the facts as they currently exist. We assume no obligation to revise or supplement
The Lender Parties
c/o JPMorgan Chase Bank, N.A.,
as Administrative Agent
March 27,2013
Page 3
this opinion in the event of future changes in such laws or the interpretations thereof or such
facts. We express no opinion regarding (i) the Securities Act of 1933, as amended, the
Investment Company Act of 1940, as amended, or any other federal or state securities laws, rules
or regulations or the effect of any non-compliance therewith or (ii) any federal or state utility or
energy laws, rules or regulations or the effect of any non-compliance therewith.
B. Our opinion in paragraph I is subject to (i) the effect of any bankruptcy,
insolvency, reorganization, moratorium, arrangement or similar laws affecting the rights and
remedies of creditors generally (including, without limitation, the effect of statutory or other
laws regarding fraudulent transfers or preferential transfers or distributions by corporations to
stockholders) and (ii) general principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific
performance, injunctive relief or other equitable remedies regardless of whether enforceability is
considered in a proceeding in equity or at law.
C. We express no opinion regarding the effectiveness of (i) any waiver (whether
or not stated as such) under the Financing Documents of, or any consent thereunder relating to,
unknown future rights or the rights of any party thereto existing, or duties owing to it, as a matter
of law; (ii) any waiver (whether or not stated as such) contained in the Financing Documents of
rights of any party, or duties owing to it, that is broadly or vaguely stated or does not describe the
right or duty purportedly waived with reasonable specificity; (iii) provisions relating to
indemnification, exculpation or contribution, to the extent such provisions may be held
unenforceable as contrary to public policy or federal or state securities laws or due to the
negligence or willful misconduct of the indemnified party; (iv) any agreement to submit to the
jurisdiction of any Federal Court; (v) any provision purporting to establish evidentiary standards;
(vi) any provision to the effect that every right or remedy is cumulative and may be exercised in
addition to any other right or remedy or that the election of some particular remedy does not
preclude recourse to one or more others; or (vii) any right of setoff to the extent asserted by a
participant in the rights of a Lender under the Financing Documents. In addition, we advise you
that some of the provisions of the Financing Documents may not be enforceable by a Lender
acting individually (as opposed to the Lenders acting through the Agent).
This opinion is rendered as of the date hereof to the Lender Parties in connection with the
Financing Documents and may not be relied upon by any person other than the Lender Parties or
by the Lender Parties in any other context. The Lender Parties may not furnish this opinion or
copies hereof to any other person except (i) to bank examiners and other regulatory authorities
should they so request in connection with their normal examinations, (ii) to the independent
auditors and attorneys of the Lender Parties, (iii) pursuant to order or legal process of any court
or governmental agency, (iv) in connection with any legal action to which any Lender Party is a
party arising out of the transactions contemplated by the Financing Documents, or (v) to any
potential permitted assignee of or participant in the interest of any Lender Party under the
Financing Documents for its information. Notwithstanding the foregoing, (x) King & Spalding
LLP, special counsel for the Administrative Agent, may rely on this opinion in connection with
The Lender Parties
c/o JPMorgan Chase Bank, N.A.,
as Administrative Agent
March 27,2013
Page 4
the opinion to be furnished by them in connection with the transactions contemplated by the
Credit Agreement, and (y) parties referred to in clause (v) of the immediately preceding sentence
who become Lenders after the date hereof may rely on this opinion as if it were addressed to
them (provided that such delivery shall not constitute a re-issue or reaffirmation of this opinion
as of any date after the date hereof). This opinion may not be quoted without the prior written
consent of this Firm.
Very truly yours,
SCHEDULE I - LENDER PARTTES
JPMorgan Chase Bank, N.A.
The Royal Bank of Scotland plc
Barclays Bank PLC
Wells Fargo Bank, National Association
U.S. Bank National Association
Union Bank, N.A.
BNP Paribas
Citibank,N.A.
Mizuho Corporate Bank, Ltd.
Royal Bank ofCanada
CoBank, ACB
National Cooperative Services Corporation
Canadian Imperial Bank of Commerce, New York Agency
Deutsche Bank AG New York Branch
KeyBank National Association
Lloyds TSB Bank plc
Sumitomo Mitsui Banking Corporation
The Bank of New York Mellon
The Bank ofNova Scotia
The Northern Trust Company
PNC Bank, National Association
EXHIBIT E
(to the Credit Agreement)
FORM OF OPINION OF COUNSEL
FOR THE ADMINISTRATIVE AGENT
lDArEl
To each of the Lenders and LC Issuing Banks party to the
Credit Agreement referred to below
and to JPMorgan Chase Bank, N.A., as Administrative Agent
and Swingline Lender
PaciftCorp
Ladies and Gentlemen:
We have acted as special New York counselto JPMorgan Chase Bank, N.A., individually
and as Administrative Agent, in connection with the preparation, execution and delivery of the
Credit Agreement, dated as of March 27 ,2013 (the "Credit Agreemenf'), among PacifiCorp (the
"Bonower"), the Lenders and LC Issuing Banks named therein and JPMorgan Chase Bank,
N.A., as Administrative Agent and as Swingline Lender. This opinion is furnished to you
pursuant to Section 3.01(a)(vii) of the Credit Agreement. Unless otherwise indicated, terms
defined in the Credit Agreement are used herein as therein defined.
In that connection, we have examined the following documents:
(l) Counterparts of the Credit Agreement, executed by the Borrower, the
Administrative Agent, the Swingline Lender, the Lenders and the LC Issuing Banks;
(2) A form of the promissory notes issued by the Borrower on the date hereof for the
benefit of each Lender that requested one pursuant to Section 2.10(d) of the Credit Agreement
(collectively, the "Notes"); and
(3) The other documents furnished by the Borrower pursuant to Section 3.01(a) of the
Credit Agreement, including (without limitation) the opinion of Paul J. Leighton, counsel for the
Borrower, and the opinion of Gibson, Dunn & Crutcher LLP, special New York counsel for the
Borrower (collectively, the " Opinions").
In our examination of the documents referred to above, we have assumed the authenticity
of all such documents submitted to us as originals, the genuineness of all signatures, the due
authority of the parties executing such documents and the conformity to the originals of all such
documents submitted to us as copies. We have also assumed that each of the Lenders, the LC
Issuing Banks, the Swingline Lender and the Administrative Agent has duly executed and
delivered, with all necessary power and authority (corporate and otherwise), the Credit
Agreement. We have further assumed that you have evaluated, and are satisfied with, the
creditworthiness of the Borrower and the business and financial terms evidenced by the Loan
Documents.
To the extent that our opinions expressed below involve conclusions as to matters
governed by law other than the law of the State of New York and the Federal law of the United
States, we have relied upon the Opinions and have assumed without independent investigation
the correctness of the matters set forth therein, our opinions expressed below being subject to the
assumptions, qualifications and limitations set forth in the Opinions. We note that we do not
represent the Borrower and, accordingly, are not privy to the nature or character of its businesses.
Accordingly, we have also assumed that the Borrower is subject only to statutes, rules,
regulations, judgments, orders, and other requirements of law generally applicable to
corporations doing business in the State of New York. As to matters of fact, we have relied
solely upon the documents we have examined.
Based upon the foregoing, and subject to the qualifications set forth below, we are of the
opinion that:
(i) The Credit Agreement is, and each of the Notes when executed and delivered for
value received will be, the legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with their respective terms.
(ii) While we have not independently considered the matters covered by the Opinions
to the extent necessary to enable us to express the conclusions stated therein, the Opinions and
the other documents referred to in item (3) above are substantially responsive to the
corresponding requirements set forth in Section 3.01(a) of the Credit Agreement pursuant to
which the same have been delivered.
Our opinions are subject to the following qualifications:
Our opinion in paragraph (i) above is subject to the effect of any applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or similar law affecting
creditors' rights generally.
Our opinion in paragraph (i) above is subject to the effect of general principles of equity,
including (without limitation) concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law). Such principles of equity
are of general obligation, and, in applying such principles, a court, among other things, might not
allow a contracting party to exercise remedies in respect of a default deemed immaterial, or
might decline to order an obligor to perform covenants.
We note further that, in addition to the application of equitable principles described
above, courts have imposed an obligation on contracting parties to act reasonably and in good
faith in the exercise of their contractual rights and remedies, and may also apply public policy
considerations in limiting the right of parties seeking to obtain indemnification under
circumstances where the conduct of such parties in the circumstances in question is determined
to have constituted negligence.
E-4
We express no opinion herein as to (i) Section 8.05 of the Credit Agreement, (ii) the
enforceability of provisions purporting to grant to aparfv conclusive rights of determination, (iii)
the availability of specific performance or other equitable remedies, (iv) the enforceability of
rights to indemnity under Federal or state securities laws and (v) the enforceability of waivers by
parties of their respective rights and remedies under law.
In connection with any provision of the Credit Agreement or the Notes whereby the
Borrower submits to the jurisdiction of any court of competent jurisdiction, we note the
limitations of 28 U.S.C. $$ l33l and 1332 on Federal court jurisdiction.
Our opinions expressed above are limited to the law of the State of New York and the
Federal law of the United States, and we do not express any opinion herein concerning any other
law. Without limiting the generality of the foregoing, we express no opinion as to the effect of
the law of any jurisdiction other than the State of New York wherein any Lender may be located
or wherein enforcement of the Credit Agreement or the Notes may be sought that limits the rates
of interest legally chargeable or collectible.
This opinion letter speaks only as of the date hereof, and we expressly disclaim any
responsibility to advise you of any development or circumstance, including changes of law or
fact, that may occur after the date of this opinion letter that might affect the opinions expressed
herein. This opinion letter is furnished to the addressees hereof solely in connection with the
transactions contemplated by the Credit Agreement, is solely for the benefit of the addressees
hereof and may not be relied upon by any other Person or for any other purpose without our prior
written consent. Notwithstanding the foregoing, this opinion letter may be relied upon by any
Person that becomes a Lender after the date hereof in accordance with the provisions of the
Credit Agreement as if this opinion letter were addressed and delivered to such Person on the
date hereof. Any such reliance must be actual and reasonable under the circumstances existing at
the time such Person becomes a Lender, taking into account any changes in law or facts and any
other developments known to or reasonably knowable by such Person at such time.
Very truly yours,
AHC:kty:mgj
(to th. JIlBitT*l;1-*,
IFORM OFI
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement, dated as of March 27, 2013 (as
amended, supplemented or otherwise modified from time to time, the "Credit Agreement"),
among PacifiCorp (the "Borrowet''), the Lenders party thereto from time to time, JPMorgan
Chase Bank, N.A., as Administrative Agent and as Swingline Lender, and the LC Issuing Banks
party thereto from time to time.
Pursuant to the provisions of Section 2.18 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any
promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate,
(ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code,
(iii) it is not a ten percent shareholder of the Borrower within the meaning of Section
871(hX3XB) of the Internal Revenue Code and (iv) it is not a controlled foreign corporation
related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished the Administrative Agent and the Borrower with a
certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the
undersigned agrees that (l) if the information provided on this certificate changes, the
undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the
undersigned shall have at all times furnished the Borrower and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF LENDER]
Name:
Title:
Date: __,20[ ]
By:
EXHIBIT F-2
(to the Credit Agreement)
IFORM OFI
U.S. TAX COMPLIANCE CERTIFICATF
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax
Purposes)
Reference is hereby made to the Credit Agreement, dated as of March 27, 2013 (as
amended, supplemented or otherwise modified from time to time, the "Credit Agreemenf'),
among PacifiCorp (the "Bonowef'), the Lenders party thereto from time to time, JPMorgan
Chase Bank, N.A., as Administrative Agent and as Swingline Lender, and the LC Issuing Banks
party thereto from time to time.
Pursuant to the provisions of Section 2.18 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of
which it is providing this certificate, (ii) it is not a bank within the meaning of Section
881(cX3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of the
Borrower within the meaning of Section 871(hX3XB) of the Internal Revenue Code, and (iv) it is
not a controlled foreign corporation related to the Borrower as described in Section 881(oX3XC)
of the Internal Revenue Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S.
Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that
(l) if the information provided on this certificate changes, the undersigned shall promptly so
inform such Lender in writing, and (2) the undersigned shall have at all times furnished such
Lender with a properly completed and currently effective certificate in either the calendar year in
which each payment is to be made to the undersigned, or in either of the two calendar years
preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF PARTICIPANT]
Name:
Title:
Date: _ _,201 l
By:
EXHIBIT F.3
(to the Credit Agreement)
IFORM OFI
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement, dated as of March 27, 2013 (as
amended, supplemented or otherwise modified from time to time, the "Credit Agreemenf'),
among PacifiCorp (the "Bomower"), the Lenders party thereto from time to time, JPMorgan
Chase Bank, N.A., as Administrative Agent and as Swingline Lender, and the LC Issuing Banks
party thereto from time to time.
Pursuant to the provisions of Section 2.18 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record owner of the participation in respect of which it is
providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial
owners of such participation, (iii) with respect such participation, neither the undersigned nor
any of its direct or indirect partners/members is a bank extending credit pursuant to a loan
agreement entered into in the ordinary course of its trade or business within the meaning of
Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect
partners/members is a ten percent shareholder of the Borrower within the meaning of Section
871(hX3XB) of the Internal Revenue Code and (v) none of its direct or indirect
partners/members is a controlled foreign corporation related to the Borrower as described in
Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished its participating Lender with lRS Form W-8IMY
accompanied by one of the following forms from each of its partners/members that is claiming
the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY
accompanied by an IRS Form W-8BEN from each of such partner's/member's beneficial owners
that is claiming the portfolio interest exemption. By executing this certificate, the undersigned
agrees that (l) if the information provided on this certificate changes, the undersigned shall
promptly so inform such Lender and (2) the undersigned shall have at all times furnished such
Lender with a properly completed and currently effective certificate in either the calendar year in
which each payment is to be made to the undersigned, or in either of the two calendar years
preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF PARTICIPANT]
Name:
Title:
Date: _ _, 20[ ]
EXHIBIT F-4
(to the Credit Agreement)
IFORM OFI
U.S. TAX COMPLIAIICE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement, dated as of March 27, 2013 (as
amended, supplemented or otherwise modihed from time to time, the "Credit Agreemenf'),
among PacifiCorp (the "Borrower"), the Lenders party thereto from time to time, JPMorgan
Chase Bank, N.A., as Administrative Agent and as Swingline Lender, and the LC Issuing Banks
party thereto from time to time.
Pursuant to the provisions of Section 2.18 of the Credit Agreement, the undersigned
hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any promissory
note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct
or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any
promissory note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant
to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its
direct or indirect partners/members is a bank extending credit pursuant to a loan agreement
entered into in the ordinary course of its trade or business within the meaning of Section
881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect partnersimembers is
a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code and (v) none of its direct or indirect partners/members is a controlled
foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal
Revenue Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS
Form W-8IMY accompanied by one of the following forms from each of its partners/members
that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form
W-8IMY accompanied by an IRS Form W-8BEN from each of such partner's/member's
beneficial owners that is claiming the portfolio interest exemption. By executing this certificate,
the undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the
undersigned shall have at all times furnished the Borrower and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF LENDER]
By:
Name:
Title:
Date: _ _,201 l
SCHEDULE I
LIST OF COMMITMENT AMOUNTS AND APPLICABLE LENDING OFFICES
PACIFICORP
U.S. $600,000,000 Credit Agreement
Name of Bank Commitment
Amount
Domestic
Lending Office
Eurodollar
Lending
Office
JPMorgan Chase
Bank, N.A.
s43,101,415.10 500 Stanton Christiana Road,
Ops 2, Floor 03
Newark, Delaware 197 13-2107
Contact: Gregory Hutchins
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Same as
Domestic
Lending
Office
The Royal Bank of
Scotland plc
s43,101,415.10 600 Washington Boulevard
Stamford, Connecticut 0690 1
Contact: Emily Freedman
Phone: [phone]
Email : emi [e-mail]
Group Email:
GBMUSOClendin [e-mail]
Same as
Domestic
Lending
Office
Barclays Bank PLC $43, r0l,41s.10 745 SeventhAvenue
NewYork,NewYork 10019
Contact: Alicia Borys
Phone: [phone]
Email : [e-mail]
Group Email:
[e-mail]
Same as
Domestic
Lending
Office
Wells Fargo Bank,
National
Association
$43,101,415.10 1300 SW 5th Ave
MAC: P6l0l-066
Portland, Oregon9720l
Contact: Lisa Larpenteur
Phone: [phone]
Fax: [phone]
Email : [e-mail]
Same as
Domestic
Lending
Office
U.S. Bank National
Association
s43,101,415.10 800 Nicollet Mall
Minneapolis, Minnesota 55402
Contact: Holland H. Williams
Phone: [phone]
Fax: [phone]
Email:
[e-mail]
Same as
Domestic
Lending
Office
Union Bank, N.A.s43, I 01 ,41 5. 1 0 445 South Figueroa Street, Gl6-110
Los Angeles, CA 90071
Contact: Dennis Blank
Fax: [phone]
Emai I : [e-mail]
Same as
Domestic
Lending
Office
BNP Paribas $31,692,216.97 787 Seventh Avenue
New York, New York 10019
Contact: Denis O'Meara
Phone: [phone]
Fax: [phone]
Email:
deni [e-mail]
Same as
Domestic
Lending
Office
Citibank, N.A.$31,692,216.97 399 Park Avenue, 1 6o' Floor 5
New York, New York 10043
Contact: Loan Administration
Phone: [phone]
Fax: [phone]
Email : [e-mail]
Same as
Domestic
Lending
Office
Mizuho Corporate
Bank. Ltd.
$31,692,216.97 1251 Avenue of the Americas
New York, New York 10020
Contact: Masato Ishii
Phone: [phone]
Fax: [phone]
Email : [e-mail]
Same as
Domestic
Lending
Office
I-3
Royal Bank of
Canada
s31,692,216.97 Three World Financial Center
New York, New York 10281
Contact: Kyle Hoffman
Phone: [phone]
Fax: [phone]
Email : [e-mail]
Same as
Domestic
Lending
Office
CoBank, ACB s25,000,000.00 5500 South Quebec Street
Greenwood Village, CO 80111
Contact: Josh Batchelder
Phone: [phone]
Fax : [phone]
Email : i [e-mail]
Group Email: [e-mail]
Same as
Domestic
Lending
Office
National
Cooperative
Services
Corporation
$25,000,000.00 20701 Cooperative Way
Dulles, Virginia 20166
Contact: L. Katrice Simpson
Phone: [phone]
Fax: [phone]
Email : [e-mail]
Same as
Domestic
Lending
Office
Canadian Imperial
Bank of Commerce,
New York Agency
$19,015,330.19 425 Lexinglon Avenue, 4th Floor
New York, New York 10017
Contact:Josh Hogarth
Phone: [phone]
Fax: [phone]
Email : [e-mail]
Same as
Domestic
Lending
Office
Deutsche Bank AG
New York Branch
$19,015,330.19 5022Gate Parkway Suite 100
Jacksonville, Florida 32256
Contact: Philippe Sandmeier
Phone: [phone]
Fax: [phone]
Email : [e-mail]
Group Email: [e-mail]
Same as
Domestic
Lending
Office
t-4
KeyBank National
Association
$19,015,330.19 601 108*AvenueNE
Bellevue, Washington 98004
Contact: Kevin Smith
Phone: [phone]
Fax: [phone]
Email: kevin d [e-mail]
Same as
Domestic
Lending
Office
Lloyds TSB Bank
plc
s19,015,330.19 l00l Fannin, Suite 4600
Houston, Texas77002
Contact: Christian Hammerbeck
Phone: [phone]
Fax: [phone]
Email:
[e-mail]
Group Email:
[e-mail]
Same as
Domestic
Lending
Office
Sumitomo Mitsui
Banking
Corporation
$19,015,330.19 277 ParkAvenue
New York, NY 10172
Contact: Emily Estevez
Phone: [phone]
Fax: [phone]
Email : [e-mail]
Same as
Domestic
Lending
Office
The Bank ofNew
York Mellon
$19,015,330.19 One Wall Street, 19th Floor
New York, New York 10286
Contact: Richard K. Fronapfel
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Same as
Domestic
Lending
Office
The Bank ofNova
Scotia
$19,015,330.19 I Liberty Plaza
New York, New York 10006
Contact: Sandy Dewar
Phone: [phone]
Fax: [phone]
Email : [e-mail]
Same as
Domestic
Lending
Office
I-5
The Northern Trust
Company
$19,015,330.19 20701 Cooperative Way
Dulles, Virginia
Contact: Daniel Lyzinski
Phone: [phone]
Fax: [phone]
Email : dan. [e-mail]
Same as
Domestic
Lending
Office
PNC Bank, National
Association
$12,500,000.00 249 Fifth Avenue
One PNC Plaza
Pittsburgh, Pennsylvani a I 5222
Contact: Michael Leong
Phone: [phone]
Email : [e-mail]
Group Email:
oarticipationl,ATB RV@nnc. com
Same as
Domestic
Lending
Office
TOTAL s600.000.000.00
LC Issuins Bank
Wells Fargo Bank, National
Association
JPMorgan Chase Bank, N.A.
Barclays Bank PLC
SCHEDULE II
LIST OF FRONTING COMMITMENTS
PACIFICORP
U.S. $600,000,000 Credit Agreement
LC Issuins Bank Address
90 S. 7n Street
MAC N9305-070
Minneapolis, MN 55402
Contact: Jhana Pittman
Phone: [phone]
Fax: [phone]
Email:
i hana. r.pittman@well sfargo.com
500 Stanton Christiana Road,
Ops 2, Floor 03
Newark, Delaware 197 13 -2107
Contact: Gregory Hutchins
Phone: [phone]
Fax: [phone]
Email : [e-mail]
200 Park Avenue
New York, NY 10166
Contact: Letter of Credit Department /
Dawn Townsend
Phone: [phone]
Fax: [phone]
Group Email:
xraletterofCredit@barcl avscapital.com
Fronting Commitment
$320,000,000
$150,000,000
s150,000,000
SCHEDULE III
EXISTING LETTERS OF CREDIT
PACIFICORP
U.S. $600,000,000 Credit Agreement
Underlying Bonds
$21,595,501 The Bank of New
York Mellon Trust
Company, N.A.
US $21,260,000 Sweetwater
County, Wyoming Pollution
Control Revenue Refunding
Bonds Series 1994
Issued:
November
19,2008
Expires:
March27,
20t5
NOS630107
US $15,060,000 Lincoln County,
Wyoming Pollution Control
Revenue Refunding Bonds Series
1994
Issued:
November
19,2008
Expires:
March27,
2015
NOS630105 sr5,297,660 The Bank of New
York Mellon Trust
Company, N.A.
US $40,655,000 Moffat County,
Colorado Pollution Control
Revenue Refunding Bonds Series
1994
Issued:
November
19,2008
Exoires:
November
19,2013
NOS630106 $41,296,s70 The Bank of New
York Mellon Trust
Company, N.A.
$123,864,314 The Bank of New
York Mellon Trust
Company, N.A.
US $121,940,000 Emery County,
Utah Pollution Control Revenue
Refunding Bonds Series 1994
Issued:
November
19,2008
Expires:
March27,
2015
NOS630l04
Issued:
November
19,2008
Expires:
March27,
2015
NOS630l02 $8,319,245 The Bank of New
York Mellon Trust
Company, N.A.
US $8,190,000 Converse County,
Wyoming Pollution Control
Revenue Refunding Bonds Series
1994
Issued:
November
19,2008
Exoires:
March27,
2015
NOS63010l $9,512,788 The Bank of New
York Mellon Trust
Company, N.A.
US $9,365,000 Carbon County,
Utah Pollution Control Revenue
Refunding Bonds Series 1994
Underlying Bonds
Issued:
April 18,
2012
Expires:
March27,
2015
s45,961,644 The Bank of New
York Mellon Trust
Company, N.A.
US $45,000,000 Forsyth, Rosebud
County, Montana Customized
Purchase Pollution Control
Revenue Refunding Bonds Series
1988
Issued:
April 18,
2012
Expires:
March27,
2015
$45,961,644 The Bank of New
York Mellon Trust
Company, N.A.
US $45,000,000 Emery County,
Utah Pollution Control Revenue
Refunding Bonds Series l99l
SCHEDULE IV
LIST OF MATERIAL SUBSIDIARIES
PACIFICORP
U. S. $600,000,000 Credit Agreement
None.