<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 17)
PACIFIC TELECOM, INC.
______________________________________________________________________________
(Name of Issuer)
Common Stock, par value $.01
______________________________________________________________________________
(Title of Class of Securities)
694876 10 3
________________________________________
(CUSIP Number)
Richard T. O'Brien
PacifiCorp Holdings, Inc.
700 NE Multnomah, Suite 1600
Portland, Oregon 97232-4116
Telephone: (503) 731-2070
______________________________________________________________________________
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
November 1, 1994
________________________________________
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
Check the following box if a fee is being paid with this statement [ ].
<PAGE>
SCHEDULE 13D
____________
CUSIP No. 694876 10 3
1) Name of Reporting Person; S.S. or I.R.S. Identification No. of Above
Person: PacifiCorp Holdings, Inc. (formerly Inner PacifiCorp, Inc.)
___________________________________________________________
93-0866672.
__________
2) Check the Appropriate Box if a Member of a Group
(See Instructions)
(a) [ ]
(b) [ ]
3) SEC Use Only ____________________________________________________________
4) Source of Funds BK
_________________________________________________________
5) Check if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e) [ ]
6) Citizenship or Place of Organization Delaware
____________________________________
Number of Shares 7) Sole Voting Power 0
Beneficially ______________________________
Owned by Each
Reporting 8) Shared Voting Power 34,325,181
Person With _____________________________
9) Sole Dispositive Power 0
__________________________
10) Shared Dispositive Power 34,325,181
______________________
11) Aggregate Amount Beneficially Owned by Each Reporting Person 34,325,181
____________
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11) 86.6%
______________________
14) Type of Reporting Person (See Instructions) CO
_____________________________
2
<PAGE>
SCHEDULE 13D
____________
CUSIP No. 694876 10 3
1) Name of Reporting Person; S.S. or I.R.S. Identification No. of Above
Person: PacifiCorp 93-0246090.
______________________
2) Check the Appropriate Box if a Member of a Group
(See Instructions)
(a) [ ]
(b) [ ]
3) SEC Use Only ____________________________________________________________
4) Source of Funds Not applicable.
_________________________________________________________
5) Check if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e) [ ]
6) Citizenship or Place of Organization Oregon
____________________________________
Number of Shares 7) Sole Voting Power 0
Beneficially ______________________________
Owned by Each
Reporting 8) Shared Voting Power 34,325,181
Person With _____________________________
9) Sole Dispositive Power 0
__________________________
10) Shared Dispositive Power 34,325,181
______________________
11) Aggregate Amount Beneficially Owned by Each Reporting Person 34,325,181
____________
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions) [ ]
13) Percent of Class Represented by Amount in Row (11) 86.6%
______________________
14) Type of Reporting Person (See Instructions) CO
_____________________________
3
<PAGE>
PACIFICORP HOLDINGS, INC.
_________________________
AMENDMENT NO. 17 TO
SCHEDULE 13D
____________
Item 1. Security and Issuer.
______ ___________________
PacifiCorp Holdings, Inc. (formerly Inner PacifiCorp, Inc.), a
Delaware corporation ("PacifiCorp Holdings"), amends its statement on Schedule
13D (as previously amended, "Statement") pertaining to the Common Stock, no
par value ("Common Stock"), of Pacific Telecom, Inc., a Washington corporation
("PTI"). This Amendment No. 17 ("Amendment") amends the Statement to report a
proposal by PacifiCorp Holdings to acquire the minority interest of PTI.
PacifiCorp, an Oregon corporation ("PacifiCorp"), which owns 100 percent of
the outstanding voting securities of PacifiCorp Holdings, joins in this
filing.
Item 2. Identity and Background.
______ _______________________
The information set forth below amends and restates the
information included under Item 2 of the Statement.
PacifiCorp Holdings owns approximately 87% of PTI and 100% of
PacifiCorp Financial Services, Inc. ("PFS"). These ownership interests are
the primary assets of PacifiCorp Holdings. PTI, through its subsidiaries,
provides local telephone service and access to the long distance network in
Alaska, seven other western states and three midwestern states, provides
intrastate and interstate long distance communication services in Alaska,
provides cellular mobile telephone services and is engaged in sales of
capacity in and operation of a submarine fiber-optic cable between the U.S.
and Japan. PFS plans to sell substantial portions of its loan, leasing and
real estate investments over the next several years.
PacifiCorp Holdings is a wholly owned subsidiary of PacifiCorp, an
electric utility that conducts a retail electric utility business through two
divisions, Pacific Power & Light Company ("Pacific Power") and Utah Power &
Light Company ("Utah Power"), and engages in power production and sales on a
wholesale basis under the name PacifiCorp. Pacific Power and Utah Power
furnish electric service in portions of seven western states: California,
Idaho, Montana, Oregon, Utah, Washington and Wyoming. The principal executive
offices of PacifiCorp and PacifiCorp Holdings are located at 700 NE Multnomah,
Suite 1600, Portland, Oregon 97232-4116.
For a current list of the executive officers and directors of
PacifiCorp Holdings and PacifiCorp, along with the other information required
to be furnished with respect to such executive officers and directors under
this Item 2, see Exhibit 1, which is incorporated herein by reference.
Neither PacifiCorp Holdings nor PacifiCorp has been, during the
last five years, (i) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors), or (ii) a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction which resulted in
a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
______ _________________________________________________
The Company presently plans to finance the proposed acquisition by
borrowing some or all of the required funds under the $500,000,000 Credit
Agreement (the "Credit Agreement") dated September 30, 1993 among the Company,
the banks listed therein, Bank of America National Trust and Savings
Association, as Co-Agent and Morgan Guaranty Trust Company of New York, as
Agent, a copy of which is attached hereto as Exhibit 3. The Company may need
_________
to obtain consents or waivers under the Credit Agreement with respect to
certain borrowing restrictions.
4
<PAGE>
Item 4. Purpose of Transaction.
______ ______________________
On November 1, 1994, the Board of Directors of PacifiCorp Holdings
approved a proposal to acquire the 13% publicly held minority interest of PTI
for $28.00 per share.
Under the terms of the proposal, a newly formed wholly owned
subsidiary of Pacific Holdings ("Newco") would merge into PTI and the holders
of the approximately 5.3 million shares of common stock of PTI not held by
PacifiCorp Holdings would receive cash in the amount of $28.00 in exchange for
each share of Common Stock. As a result of the merger, Pacific Telecom would
become a wholly owned subsidiary of PTI.
The merger requires approval by the directors of PTI, a majority
of whom are not affiliated with PacifiCorp. The merger also requires a vote
by the shareholders of PTI, but because PacifiCorp Holdings intends to vote
its shares in favor of the merger this approval is assured. In addition, the
transaction is subject to the preparation and execution of definitive
agreements, the receipt of regulatory approvals and third-party consents, and
other conditions customary in such transactions.
Item 5. Interest in Securities of the Issuer.
______ ____________________________________
The information set forth below amends and restates the
information included under Item 5 of the Statement:
(a) - (b) The aggregate number of shares of Common Stock
beneficially owned by the persons named in response to Item 2, and the number
of shares of Common Stock with respect to which there is sole power to vote or
to direct the vote, shared power to vote or to direct the vote, sole power to
dispose or to direct the disposition, or shared power to dispose or to direct
the disposition, are set forth on Exhibit 2, which is incorporated herein by
_________
reference. Except as described in Exhibit 2, neither PacifiCorp Holdings,
_________
PacifiCorp, nor, to the knowledge of PacifiCorp Holdings or PacifiCorp, any
director or officer of either of them is the beneficial owner of any Common
Stock.
(c) Information regarding transactions in shares of Common Stock
within the past 60 days by the persons named in response to Item 2 is set
forth on Exhibit 2. Except as described in Exhibit 2, neither PacifiCorp
_________ _________
Holdings, PacifiCorp nor, to the knowledge of PacifiCorp Holdings, any
director or officer of either of them has bought or sold or otherwise effected
any transactions in shares of the Common Stock during the past 60 days.
(d) - (e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
______ ________________________________________________________
with Respect to Securities of the Issuer.
________________________________________
The persons named under Item 2 are not parties to any contract,
arrangement, or understanding with respect to securities of PTI.
Item 7. Material to be Filed as Exhibits.
______ ________________________________
Exhibit 1, Directors and officers of corporations named in Item 2.
Exhibit 2, Interests in Securities of PTI.
Exhibit 3, $500,000,000 Credit Agreement dated as of September 30,
1993 among PacifiCorp Holdings, Inc., the Banks listed therein,
Bank of America National Trust and Savings Association, as
Co-Agent and Morgan Guaranty Trust Company of New York, as Agent.
5
<PAGE>
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
DATED this 10th day of November, 1994.
PACIFICORP HOLDINGS, INC.
By RICHARD T. O'BRIEN
______________________________________
Richard T. O'Brien
Senior Vice President
Attention: Intentional misstatements or omissions of fact
constitute Federal criminal violations (See 18 U.S.C. 1001).
____________________________________________________________
6
<PAGE>
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
DATED this 10th day of November, 1994.
PACIFICORP
By RICHARD T. O'BRIEN
______________________________________
Richard T. O'Brien
Vice President
Attention: Intentional misstatements or omissions of fact
constitute Federal criminal violations (See 18 U.S.C. 1001).
____________________________________________________________
7
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
___________ ___________ ________
1. Directors and Executive Officers of Corporations
named in Item 2.
2. Interests in Securities of Pacific Telecom, Inc.
3. $500,000,000 Credit Agreement dated as of
September 30, 1993 among PacifiCorp Holdings,
Inc., the Banks listed therein, Bank of America
National Trust and Savings Association, as
Co-Agent and Morgan Guaranty Trust Company of
New York, as Agent.
8
<PAGE>
Exhibit 1
DIRECTORS AND EXECUTIVE OFFICERS
OF PACIFICORP HOLDINGS, INC. and PACIFICORP
(Note: footnote (*) appears at end of this Exhibit 1)
The directors and executive officers of PacifiCorp Holdings, Inc.
and PacifiCorp are as follows:
<TABLE>
PACIFICORP HOLDINGS, INC.
<CAPTION>
Name Title Principal Occupation
____ _____ ____________________
<S> <C> <C>
William J. Glasgow Director, President & Senior Vice President and CFO of
Chief Executive Officer PacifiCorp, a diversified electric
utility with offices at 700 NE
Multnomah, Suite 1600, Portland,
Oregon 97232; President and Chief
Executive Officer of PacifiCorp
Holdings, Inc., a holding company for
the telecommunications, financial
services and miscellaneous nonutility
subsidiaries of PacifiCorp, with
offices at 700 NE Multnomah, Suite
1600, Portland, Oregon 97232
A.M. Gleason Director Vice Chairman of Board of Directors
of PacifiCorp*
C. Todd Conover Director General Manager, Finance Industry
Group, Tandem Computers Incorporated,
19191 Vallco Parkway, LOC 4-57,
Cupertino, California 95014
Nolan E. Karras Director Owner of Investment Management &
Research, Inc., an investment
advisory firm with offices at 4695
South 1900 West #3, Roy, Utah 84067
Frederick W. Buckman Director President and Chief Executive Officer
of PacifiCorp*
William E. Peressini Treasurer Treasurer of PacifiCorp*; Treasurer
of PacifiCorp Holdings, Inc.*
1
<PAGE>
<CAPTION>
Name Title Principal Occupation
____ _____ ____________________
<S> <C> <C>
Michael C. Henderson Senior Vice President Senior Vice President of PacifiCorp
Holdings, Inc.*; Director & President
of PacifiCorp Financial Services,
Inc.*, a financial services company
with offices at 825 NE Multnomah,
Suite 775, Portland, Oregon 97232
Richard T. O'Brien Senior Vice President Vice President of PacifiCorp*;
Senior Vice President of PacifiCorp
Holdings, Inc.*
Daniel L. Spalding Senior Vice President Senior Vice President of PacifiCorp*;
Senior Vice President of PacifiCorp
Holdings, Inc.*
Sally A. Nofziger Secretary Vice President and Corporate
Secretary of PacifiCorp*; Secretary
of PacifiCorp Holdings, Inc.*
Jacqueline S. Bell Controller Controller of PacifiCorp*; Controller
of PacifiCorp Holdings, Inc.*
</TABLE>
All of the directors and executive officers of Pacific Holdings,
Inc. are U.S. citizens. The business address of each individual listed above
is the address shown for the individual's principal occupation. None of the
individuals listed has been, during the last five years, (i) convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors), or
(ii) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction which resulted in a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
<TABLE>
PACIFICORP
__________
<CAPTION>
Name Title Principal Occupation
____ _____ ____________________
<S> <C> <C>
Richard C. Edgley Director Member of Presiding Bishopric, The
Church of Jesus Christ of Latter-day
Saints, 50 East North Temple, 18th
Floor, Salt Lake City, Utah 84150
Frederick W. Buckman Member of Corporate President and Chief Executive
Policy Group, Director Officer of PacifiCorp*
and President & Chief
Executive Officer
A.M. Gleason Director and Vice Vice Chairman of the Board of
Chairman of the Board PacifiCorp*
2
<PAGE>
<CAPTION>
Name Title Principal Occupation
____ _____ ____________________
<S> <C> <C>
C.M. Bishop, Jr. Director Vice-Chairman, Pendleton Woolen
Mills, a manufacturer of woolen
articles with offices at P.O. Box
3030, Portland, Oregon 97208
Kathryn A. Braun Director Executive Vice President, Western
Digital Corporation, 8105 Irvine
Center Drive, Irvine, CA 92718
C. Todd Conover Director General Manager, Finance Industry
Group, Tandem Computers Incorporated,
19191 Vallco Parkway, LOC 4-57,
Cupertino, California 95014
John C. Hampton Director Chairman and Chief Executive Officer
of Hampton Resources, Inc., a forest
products company with offices at
Suite 400, 9400 SW Barnes Rd.,
Portland, Oregon 97225
Nolan E. Karras Director Owner of Investment Management &
Research, Inc., an investment
advisory firm with offices at 4695
South 1900 West #3, Roy, Utah 84067
Keith R. McKennon Director and Chairman Chairman of the Board of
of the Board of Directors PacifiCorp*
Robert G. Miller Director Chairman of the Board and Chief
Executive Officer of Fred Meyer,
Inc., a retail merchandising chain,
with offices at 3800 SE 22nd,
Portland, Oregon 97202
Verl R. Topham Director, Senior Vice Senior Vice President and
President and General General Counsel of PacifiCorp*
Counsel of PacifiCorp
Don M. Wheeler Director President and General Manager,
Wheeler Machinery Company, an
equipment sales, repair and service
firm with offices at 4901 West 2100
South, Salt Lake City, Utah 84120
Nancy Wilgenbusch Director President, Marylhurst College,
Marylhurst, Oregon, 97036
Paul G. Lorenzini Member of Corporate Senior Vice President of
Policy Group and Senior PacifiCorp*
Vice President of PacifiCorp
3
<PAGE>
<CAPTION>
Name Title Principal Occupation
____ _____ ____________________
<S> <C> <C>
Charles E. Robinson Member of Corporate Chairman, President and Chief
Policy Group Executive Officer of Pacific Telecom,
Inc., a telecommunications holding
company with offices at 805 Broadway,
P.O. Box 9901, Vancouver, Washington
98668
William J. Glasgow Member of Corporate Senior Vice President and CFO of
Policy Group, Senior PacifiCorp*; Director, President
Vice President and and Chief Executive Officer of
Chief Financial Officer PacifiCorp Holdings, Inc.*
John A. Bohling Senior Vice President Senior Vice President of PacifiCorp*
Daniel L. Spalding Senior Vice President Senior Vice President of PacifiCorp*;
Senior Vice President of PacifiCorp
Holdings, Inc.*
Shelley R. Faigle Senior Vice President Senior Vice President of PacifiCorp*
Robert F. Lanz Vice President Vice President of PacifiCorp*
Sally A. Nofziger Vice President & Vice President and Corporate
Corporate Secretary Secretary of PacifiCorp*; Secretary
of PacifiCorp Holdings, Inc.*
Thomas J. Imeson Vice President Vice President of PacifiCorp*
Dennis P. Steinberg Vice President Vice President of PacifiCorp*
Richard T. O'Brien Vice President Vice President of PacifiCorp*;
Senior Vice President of PacifiCorp
Holdings, Inc.*
William E. Peressini Treasurer Treasurer of PacifiCorp*; Treasurer
of PacifiCorp Holdings, Inc.*
Jacqueline S. Bell Controller Controller of PacifiCorp*; Controller
of PacifiCorp Holdings, Inc.*
John E. Mooney Executive Vice President Executive Vice President of Utah
of Utah Power & Light Power & Light Company, a
Company division of PacifiCorp with offices
at One Utah Center, Suite 2100,
201 South Main, Salt Lake City,
Utah 84140
4
<PAGE>
<CAPTION>
Name Title Principal Occupation
____ _____ ____________________
<S> <C> <C>
Diana E. Snowden Senior Vice President Senior Vice President of Pacific
of Pacific Power & Light Power & Light Company*
Company
</TABLE>
All of the directors and executive officers of PacifiCorp are U.S.
citizens. The business address of each individual listed above is the address
shown for the individual's principal occupation. None of the individuals
listed has been, during the last five years, (i) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors), or (ii) a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction which resulted in a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to such
laws.
__________________________
[FN]
* The principal business and address of the corporation or other
organization for which the listed individual's principal occupation is
conducted is set forth at the first place at which the name of such
corporation or other organization appears in this Exhibit 1.
_________
[/FN]
5
<PAGE>
EXHIBIT 2
INTERESTS IN SECURITIES OF
PACIFIC TELECOM, INC.
The beneficial ownership interests of PacifiCorp Holdings, PacifiCorp
and the directors and officers of each of them as of September 30, 1994 are
described below. The percentages are calculated on the basis of 39,613,440
shares of Common Stock outstanding as of September 30, 1994.
<TABLE>
PacifiCorp Holdings, Inc.
_________________________
<CAPTION>
Nature of Number of Percent of Total Number
Ownership Shares of Outstanding Shares
_________ ____________ _________________________
<S> <C> <C>
Sole Power to Vote 0 0%
or Direct the Vote
Shared Power to Vote 34,325,181 86.6%
or Direct the Vote
Sole Power to Dispose or 0 0%
to Direct the Disposition
Shared Power to Dispose or 34,325,181 86.6%
to Direct the Disposal
Total Beneficially Owned 34,325,181 86.6%
PacifiCorp Holdings has not bought or sold or otherwise effected any
transactions in shares of Common Stock during the past 60 days.
</TABLE>
1
<PAGE>
<TABLE>
PacifiCorp
__________
<CAPTION>
Nature of Number of Percent of Total Number
Ownership Shares of Outstanding Shares
_________ ____________ _________________________
<S> <C> <C>
Sole Power to Vote 0 0%
or Direct the Vote
Shared Power to Vote 34,325,181 86.6%
or Direct the Vote
Sole Power to Dispose or 0 0%
to Direct the Disposition
Shared Power to Dispose or 34,325,181 86.6%
to Direct the Disposal
Total Beneficially Owned 34,325,181 86.6%
PacifiCorp has not bought or sold or otherwise effected any transactions in
shares of Common Stock during the past 60 days.
</TABLE>
2
<PAGE>
<TABLE>
William J. Glasgow
__________________
<CAPTION>
Nature of Number of Percent of Total Number
Ownership Shares of Outstanding Shares
_________ ____________ _________________________
<S> <C> <C>
Sole Power to Vote 385.256 *
or Direct the Vote
Shared Power to Vote 1,000 *
or Direct the Vote
Sole Power to Dispose or 385.256 *
to Direct the Disposition
Shared Power to Dispose or 1,000 *
to Direct the Disposal
Total Beneficially Owned 1,385.256 *
Mr. Glasgow has not bought or sold or otherwise effected any transactions in
shares of Common Stock during the past 60 days.
<FN>
__________________
*Less than 1 percent
</FN>
</TABLE>
3
<PAGE>
<TABLE>
A.M. Gleason
____________
<CAPTION>
Nature of Number of Percent of Total Number
Ownership Shares of Outstanding Shares
_________ ____________ _________________________
<S> <C> <C>
Sole Power to Vote 38,663.78 *
or Direct the Vote
Shared Power to Vote 5,450** *
or Direct the Vote
Sole Power to Dispose or 38,663.78 *
to Direct the Disposition
Shared Power to Dispose or 5,450** *
to Direct the Disposal
Total Beneficially Owned 44,113.78** *
Mr. Gleason has not bought or sold or otherwise effected any transactions in
shares of Common Stock during the past 60 days.
<FN>
__________________
*Less than 1 percent
**Includes 2,739 shares held by Mr. Gleason's wife as to which
Mr. Gleason disclaims beneficial ownership.
</FN>
</TABLE>
4
<PAGE>
<TABLE>
Robert F. Lanz
______________
<CAPTION>
Nature of Number of Percent of Total Number
Ownership Shares of Outstanding Shares
_________ ____________ _________________________
<S> <C> <C>
Sole Power to Vote 2,172.4406 *
or Direct the Vote
Shared Power to Vote 0 0%
or Direct the Vote
Sole Power to Dispose or 2,172.4406 *
to Direct the Disposition
Shared Power to Dispose or 0 0%
to Direct the Disposal
Total Beneficially Owned 2,172.4406 *
Mr. Lanz has not bought or sold or otherwise effected any transactions in
shares of Common Stock during the past 60 days.
<FN>
__________________
*Less than 1 percent
</FN>
</TABLE>
5
<PAGE>
<TABLE>
Charles E. Robinson
___________________
<CAPTION>
Nature of Number of Percent of Total Number
Ownership Shares of Outstanding Shares
_________ ____________ _________________________
<S> <C> <C>
Sole Power to Vote 71,921.6987 *
or Direct the Vote
Shared Power to Vote 0 0%
or Direct the Vote
Sole Power to Dispose or 71,921.6987 *
to Direct the Disposition
Shared Power to Dispose or 0 0%
to Direct the Disposal
Total Beneficially Owned 71,921.6987 *
Mr. Robinson has not bought or sold or otherwise effected any transactions in
shares of Common Stock during the past 60 days.
<FN>
__________________
*Less than 1 percent
</FN>
</TABLE>
6
<PAGE>
<TABLE>
Diana E. Snowden
________________
<CAPTION>
Nature of Number of Percent of Total Number
Ownership Shares of Outstanding Shares
_________ ____________ _________________________
<S> <C> <C>
Sole Power to Vote 2,107.3348 *
or Direct the Vote
Shared Power to Vote 0 0%
or Direct the Vote
Sole Power to Dispose or 2,107.3348 *
to Direct the Disposition
Shared Power to Dispose or 0 0%
to Direct the Disposal
Total Beneficially Owned 2,107.3348 *
Ms. Snowden has not bought or sold or otherwise effected any transactions in
shares of Common Stock during the past 60 days.
<FN>
__________________
*Less than 1 percent
</FN>
</TABLE>
7
<PAGE>
<TABLE>
Nancy Wilgenbusch
_________________
<CAPTION>
Nature of Number of Percent of Total Number
Ownership Shares of Outstanding Shares
_________ ____________ _________________________
<S> <C> <C>
Sole Power to Vote 2,711 *
or Direct the Vote
Shared Power to Vote 0 0%
or Direct the Vote
Sole Power to Dispose or 2,711 *
to Direct the Disposition
Shared Power to Dispose or 0 0%
to Direct the Disposal
Total Beneficially Owned 2,711 *
Dr. Wilgenbusch has not bought or sold or otherwise effected any transactions
in shares of Common Stock during the past 60 days.
<FN>
__________________
*Less than 1 percent
</FN>
</TABLE>
8
<PAGE>
<TABLE>
Dennis P. Steinberg
___________________
<CAPTION>
Nature of Number of Percent of Total Number
Ownership Shares of Outstanding Shares
_________ ____________ _________________________
<S> <C> <C>
Sole Power to Vote 1,130 *
or Direct the Vote
Shared Power to Vote 0 0%
or Direct the Vote
Sole Power to Dispose or 1,130 *
to Direct the Disposition
Shared Power to Dispose or 0 0%
to Direct the Disposal
Total Beneficially Owned 1,130 *
Mr. Steinberg has not bought or sold or otherwise effected any transactions in
shares of Common Stock during the past 60 days.
<FN>
__________________
*Less than 1 percent
</FN>
</TABLE>
9
<PAGE>
<TABLE>
Thomas J. Imeson
________________
<CAPTION>
Nature of Number of Percent of Total Number
Ownership Shares of Outstanding Shares
_________ ____________ _________________________
<S> <C> <C>
Sole Power to Vote 284.1789 *
or Direct the Vote
Shared Power to Vote 0 0%
or Direct the Vote
Sole Power to Dispose or 284.1789 *
to Direct the Disposition
Shared Power to Dispose or 0 0%
to Direct the Disposal
Total Beneficially Owned 284.1789 *
Mr. Imeson has not bought or sold or otherwise effected any transactions in
shares of Common Stock during the past 60 days.
<FN>
__________________
*Less than 1 percent
</FN>
</TABLE>
10
<PAGE>
<TABLE>
William E. Peressini
____________________
<CAPTION>
Nature of Number of Percent of Total Number
Ownership Shares of Outstanding Shares
_________ ____________ _________________________
<S> <C> <C>
Sole Power to Vote 1,809.1891 *
or Direct the Vote
Shared Power to Vote 200 *
or Direct the Vote
Sole Power to Dispose or 1,809.1891 *
to Direct the Disposition
Shared Power to Dispose or 200 *
to Direct the Disposal
Total Beneficially Owned 2,009.1891 *
Mr. Peressini has not bought or sold or otherwise effected any transactions in
shares of Common Stock during the past 60 days.
<FN>
__________________
*Less than 1 percent
</FN>
</TABLE>
11
<PAGE>
EXHIBIT 3
$500,000,000
CREDIT AGREEMENT
dated as of
September 30, 1993
among
PacifiCorp Holdings, Inc.
The Banks Listed Herein
Bank of America National Trust and Savings
Association, as Co-Agent
and
Morgan Guaranty Trust Company of New York,
as Agent
<PAGE>
<PAGE>i
TABLE OF CONTENTS*
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions . . . . . . . . . . . . . 1
1.02 Accounting Terms and Determinations . 29
1.03 Types of Borrowings . . . . . . . . . 30
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments to Lend . . . . . . . . . 30
2.02 Notice of Committed Borrowing . . . . 31
2.03 Money Market Borrowings . . . . . . . 32
2.04 Notice to Banks; Funding of Loans . . 36
2.05 Notes . . . . . . . . . . . . . . . . 37
2.06 Maturity of Loans . . . . . . . . . . 38
2.07 Interest Rates. . . . . . . . . . . . 38
2.08 Fees. . . . . . . . . . . . . . . . . 42
2.09 Reduction of Commitments. . . . . . . 44
2.10 Mandatory Termination of
Commitments. . . . . . . . . . . . . 46
2.11 Optional Prepayments. . . . . . . . . 46
2.12 General Provisions as
to Payments. . . . . . . . . . . . . 46
2.13 Funding Losses. . . . . . . . . . . . 47
2.14 Computation of Interest and Fees. . . 48
2.15 Letters of Credit . . . . . . . . . . 48
2.16 Releases of Collateral. . . . . . . . 55
ARTICLE III
CONDITIONS
SECTION 3.01 Credit Extensions . . . . . . . . . . 57
3.02 Conditions to Effectiveness . . . . . 58
3.03. Termination of Commitments
under Existing Credit Agreements;
Release of Existing Collateral . . . 60
__________________
* The Table of Contents is not a part of this Agreement. <PAGE>
<PAGE>ii
Page
----
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Corporate Existence and Power . . . . 61
4.02 Corporate and Governmental
Authorization; No Contravention. . . 61
4.03 Binding Effect. . . . . . . . . . . . 62
4.04 Financial Information . . . . . . . . 62
4.05 Litigation. . . . . . . . . . . . . . 64
4.06 Compliance with ERISA . . . . . . . . 64
4.07 Taxes . . . . . . . . . . . . . . . . 64
4.08 Subsidiaries. . . . . . . . . . . . . 64
4.09 Regulation. . . . . . . . . . . . . . 65
4.10 Environmental Matters . . . . . . . . 65
4.11 Spring Creek Documents. . . . . . . . 65
4.12 Original Pledged Stock; No
Debt Instruments . . . . . . . . . . 65
ARTICLE V
COVENANTS
SECTION 5.01 Information . . . . . . . . . . . . . 66
5.02 Consolidated Debt . . . . . . . . . . 69
5.03 Interest Coverage . . . . . . . . . . 69
5.04 Negative Pledge . . . . . . . . . . . 70
5.05 Consolidations, Mergers and
Sales of Assets. . . . . . . . . . . 70
5.06 Restricted Stock Payments
and Restricted Dividends . . . . . . 71
5.07 Use of Proceeds . . . . . . . . . . . 72
5.08 Investments in PFS; Guarantees of
PFS Debt . . . . . . . . . . . . . . 72
5.09 Debt of PFS . . . . . . . . . . . . . 73
5.10 Other Senior Secured Obligations. . . 73
5.11 Pledged Stock . . . . . . . . . . . . 73
5.12 Spring Creek Documents. . . . . . . . 74
5.13 Guarantees of Certain
Hedging Agreements . . . . . . . . . 74
ARTICLE VI
DEFAULTS
SECTION 6.01 Events of Default . . . . . . . . . . 74
6.02 Notice of Default . . . . . . . . . . 78
6.03 Cash Cover. . . . . . . . . . . . . . 78<PAGE>
<PAGE>iii
Page
----
ARTICLE VII
THE AGENT AND THE CO-AGENT
SECTION 7.01 Appointment and Authorization . . . . 78
7.02 Agent and Affiliates. . . . . . . . . 79
7.03 Action by Agent . . . . . . . . . . . 79
7.04 Consultation with Experts . . . . . . 79
7.05 Liability of Agent. . . . . . . . . . 79
7.06 Indemnification . . . . . . . . . . . 80
7.07 Credit Decision . . . . . . . . . . . 80
7.08 Successor Agent . . . . . . . . . . . 80
7.09 Agent's Fees. . . . . . . . . . . . . 81
7.10 Collateral Agent and the Co-Agent . . 81
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01 Basis for Determining Interest
Rate Inadequate or Unfair. . . . . . 81
8.02 Illegality. . . . . . . . . . . . . . 82
8.03 Increased Cost and Reduced Return . . 82
8.04 Taxes . . . . . . . . . . . . . . . . 84
8.05 Base Rate Loans Substituted for
Affected Fixed Rate Loans. . . . . . 86
8.06 Substitution of Bank. . . . . . . . . 87
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices . . . . . . . . . . . . . . . 87
9.02 No Waivers. . . . . . . . . . . . . . 88
9.03 Expenses; Indemnification . . . . . . 88
9.04 Sharing of Set-Offs . . . . . . . . . 89
9.05 Amendments and Waivers. . . . . . . . 89
9.06 Successors and Assigns. . . . . . . . 90
9.07 Confidentiality . . . . . . . . . . . 92
9.08 Governing Law; Submission to
Jurisdiction . . . . . . . . . . . . 93
9.09 Counterparts; Integration . . . . . . 93
Schedule I - Support Agreements with PFS
Schedule II- Assets Contributed to PFS as of July 1, 1993
Exhibit A - Note
<PAGE>
<PAGE>iv
Exhibit B - Money Market Quote Request
Exhibit C - Invitation for Money Market Quotes
Exhibit D - Money Market Quote
Exhibit E - Assignment and Assumption Agreement
Exhibit F - Opinion of Counsel for the Borrower
Exhibit G - Opinion of Special New York Counsel
for the Borrower
Exhibit H - Opinion of Special Counsel for
the Agent
Exhibit I - Form of Tax Sharing Agreement
Exhibit J - Form of Security Agreement
(with form of PCI Agreement
attached as Exhibit A)
<PAGE>
<PAGE>
CREDIT AGREEMENT
AGREEMENT dated as of September 30, 1993 among
PACIFICORP HOLDINGS, INC., the BANKS listed on the signature
pages hereof, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Co-agent, and MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent.
WHEREAS, the Borrower desires to enter into a
revolving credit facility under which both loans and letters
of credit will be available to it on the terms and
conditions provided herein;
WHEREAS, the Borrower is securing its obligations
under this Agreement and the Notes issued pursuant hereto as
provided in a Security Agreement dated as of the date
hereof;
WHEREAS, the Borrower may from time to time
request one or more of the Banks listed on the signature
pages hereof to issue letters of credit hereunder and any
such Bank that agrees to issue such a letter of credit will,
upon the issuance thereof in accordance with the provisions
hereof, become an "LC Issuing Bank" for purposes hereof; and
WHEREAS, the Banks are willing to make loans to
the Borrower and to participate in letters of credit issued
by the LC Issuing Banks and the related reimbursement
obligations of the Borrower, all on the terms and conditions
provided herein;
NOW, THEREFORE, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms,
as used herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of
Money Market Quotes setting forth Money Market Absolute
Rates pursuant to Section 2.03.
"Additional Secured Obligation" means any
obligation which the Borrower designates as an Additional <PAGE>
<PAGE>2
Secured Obligation pursuant to Section 18 of the Security
Agreement after the Effective Date.
"Adjusted Available Cash Income" means Available
Cash Income less any amounts described in clause (iv) of the
definition thereof.
"Adjusted CD Rate" has the meaning set forth in
Section 2.07(b).
"Adjusted Consolidated Debt" means at any date,
without duplication and after intercompany eliminations
among the Borrower and each of its Subsidiaries, the sum of
(i) the Debt of the Borrower (other than (a) Excluded ESOP
Debt, (b) Debt of PFS or any of its Subsidiaries which is
Guaranteed by the Borrower and (c) Non-Recourse Debt), plus
(ii) the Borrower's Share of the Debt of each of its
Restricted Subsidiaries (other than (a) Excluded ESOP Debt,
(b) Debt of PFS or any of its Subsidiaries which is
Guaranteed by such Restricted Subsidiary and (c) Non-
Recourse Debt).
"Adjusted London Interbank Offered Rate" has the
meaning set forth in Section 2.07(c).
"Adjusted Stockholder's Equity" means, at any
date, the stockholder's equity of the Borrower less the book
value of all equity investments of the Borrower and its
Restricted Subsidiaries in Excluded Subsidiaries, all
determined as of such date.
"Administrative Questionnaire" means, with respect
to each Bank, an administrative questionnaire in the form
prepared by the Agent, duly completed by such Bank and
submitted to the Agent (with a copy to the Borrower).
"Affiliate" of any Person means any other Person
directly or indirectly controlling, controlled by or under
direct or indirect common control with such Person. A
Person shall be deemed to control another Person if such
first Person possesses directly or indirectly the power to
direct, or cause the direction of, the management and
policies of the second Person, whether through the ownership
of voting securities, by contract or otherwise.
"Agent" means Morgan Guaranty Trust Company of New
York, in its capacity as agent for the Banks under this
Agreement, and its successors in such capacity.
"Aggregate Usage" means, at any time, the sum of
(i) the aggregate outstanding principal amount of the Loans <PAGE>
<PAGE>3
at such time plus (ii) the aggregate outstanding amount of
the LC Liabilities at such time.
"Annualized Available Cash Income" means, at the
end of any Fiscal Quarter ending on or before June 30, 1994,
Available Cash Income calculated (A) with respect to the
amounts referred to in clauses (i), (iv) and (v) of the
definition of Available Cash Income, for the period of four
consecutive Fiscal Quarters then ended and (B) with respect
to the amounts referred to in clauses (ii) and (iii) of said
definition, as follows:
(I) at December 31, 1993, by multiplying the
relevant amounts received during the Fiscal Quarter
then ended by 4,
(II) at March 31, 1994, by multiplying the
relevant amounts received during the two Fiscal
Quarters then ended by 2, and
(III) at June 30, 1994, by multiplying the relevant
amounts received during the three Fiscal Quarters then
ended by 4/3.
"Applicable Lending Office" means, with respect to
any Bank, (i) in the case of its Domestic Loans, its
Domestic Lending Office, (ii) in the case of its Euro-Dollar
Loans, its Euro-Dollar Lending Office and (iii) in the case
of its Money Market Loans, its Money Market Lending Office.
"Approved Securities" means any of the following
types of instruments if they have remaining terms to
maturity not exceeding 90 days from the date of acquisition:
(i) U.S. treasury securities; (ii) certificates of deposit
of, or bankers' acceptances issued by, any depository
institution or trust company as long as the commercial
paper, if any, and the long-term debt obligations (other
than such obligations whose rating is based on the credit of
a Person other than such institution or trust company) of
such depository institution or trust company (or, in the
case of the principal depository institution in a holding
company system, the commercial paper, if any, and the
long-term debt obligations of such holding company) at the
time of investment or contractual commitment providing for
such investment, have a credit rating from S&P or Moody's of
at least A-2 or P-2, respectively, in the case of commercial
paper and a rating of A- or A3, respectively, or better in
the case of long-term debt obligations; and (iii) commercial
paper having a credit rating from S&P or Moody's of at least
A-2 or P-2, respectively.
<PAGE>
<PAGE>4
"Assessment Rate" has the meaning set forth in
Section 2.07(b).
"Assignee" has the meaning set forth in Section
9.06(c).
"Available Cash Income" means, for any period, the
sum of:
(i) the aggregate amount of cash dividends
actually received by the Borrower during such period on
common stock of (X) PTI (excluding any extraordinary
dividends), (Y) PFS not in excess of its consolidated
net income for such period and (Z) any other First Tier
Subsidiaries (except Qualified Investment
Subsidiaries);
(ii) the aggregate amount of scheduled payments
(excluding any prepayments) actually received by the
Borrower during such period with respect to the
Borrower's Interest in Spring Creek Obligations, net of
income taxes applicable thereto calculated at the Net
Effective Tax Rate for such period;
(iii) the aggregate amount of any interest payments
actually received by the Borrower during such period
with respect to Debt owing to the Borrower under the
Intercompany Loan Agreements and with respect to any
other intercompany loans or advances, net of income
taxes applicable thereto calculated at the Net
Effective Tax Rate for such period;
(iv) the aggregate amount of cash equity Invest-
ments made by the Parent in the Borrower during such
period less any Excluded Dividends described in clauses
(i) and (iii) of the definition thereof declared during
such period; and
(v) Qualified Investment Subsidiary Income for
such period.
For purposes of clause (iv) of this definition, a cash
equity investment made by the Parent in the Borrower within
30 days after the end of any Fiscal Quarter shall be deemed
to have been made during such Fiscal Quarter (and not during
the following Fiscal Quarter) if the Borrower so elects by
giving written notice of such election to the Agent within
said 30-day period.
<PAGE>
<PAGE>5
"Bank" means each bank listed on the signature
pages hereof, each Assignee which becomes a Bank pursuant to
Section 9.06(c), and their respective successors.
"Base Rate" means, for any day, a rate per annum
equal to the higher of (i) the Prime Rate for such day and
(ii) the sum of 1/2 of 1% plus the Federal Funds Rate for
such day.
"Base Rate Loan" means a Committed Loan to be made
by a Bank as a Base Rate Loan in accordance with the
applicable Notice of Committed Borrowing or Article VIII.
"Base Rate Margin" has the meaning set forth in
Section 2.07(a).
"Borrower" means PacifiCorp Holdings, Inc., a
Delaware corporation, and its successors.
"Borrower's Interest in Spring Creek Obligations"
means the Borrower's undivided 99% ownership interest in (i)
the Spring Creek Obligations and (ii) all rights of the
Borrower and PCI under the Spring Creek Loan Documents
except rights under Section 6.4(d) of the Spring Creek Loan
Agreement.
"Borrower's Share" means on any date, with respect
to any Restricted Subsidiary, the quotient (expressed as a
decimal) obtained by dividing (i) the aggregate number of
outstanding shares of common stock of such Restricted
Subsidiary owned, directly or indirectly, by the Borrower by
(ii) the aggregate number of outstanding shares of common
stock of such Restricted Subsidiary, all determined as of
such date.
"Borrowing" has the meaning set forth in Section
1.03.
"CD Base Rate" has the meaning set forth in
Section 2.07(b).
"CD Loan" means a Committed Loan to be made by a
Bank as a CD Loan in accordance with the applicable Notice
of Committed Borrowing.
"CD Margin" has the meaning set forth in Section
2.07(b).
"CD Reference Banks" means Canadian Imperial Bank
of Commerce, New York Agency, Bank of America National Trust
and Savings Association, and Morgan Guaranty Trust Company <PAGE>
<PAGE>6
of New York and each such other Bank as may be appointed
pursuant to Section 9.06(f).
"Change in Law" after any specified date means the
adoption after such date of any applicable law, rule or
regulation, or any change after such date in any applicable
law, rule or regulation, or any change after such date in
the interpretation or administration thereof by any
governmental authority (including, without limitation, any
court or other judicial or quasi-judicial body), central
bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its
Applicable Lending Office) or LC Issuing Bank with any
request or directive (whether or not having the force of
law) promulgated after such date by any such authority,
central bank or comparable agency.
"Co-Agent" means Bank of America National Trust
and Savings Association, in its capacity as co-agent
hereunder.
"Collateral" has the meaning set forth in Section
1 of the Security Agreement.
"Collateral Agent" means Morgan Guaranty Trust
Company of New York, in its capacity as collateral agent for
the Secured Parties under the Security Agreement, and its
successors in such capacity.
"Commitment" means, with respect to each Bank, the
amount set forth opposite the name of such Bank on the
signature pages hereof, as such amount may be reduced from
time to time pursuant to Sections 2.09 and 2.10.
"Commitment Reduction Date" means each December
31, from December 31, 1994 to December 31, 1997, inclusive,
or, if any such day is not a Euro-Dollar Business Day, the
next preceding Euro-Dollar Business Day.
"Committed Loan" means a loan made by a Bank
pursuant to Section 2.01.
"Consolidated Capitalization" means, at any date,
the sum of Adjusted Consolidated Debt plus Adjusted
Stockholder's Equity, all determined as of such date.
"Consolidated Subsidiary" means, with respect to
any Person at any date, any corporation or other entity the
accounts of which would be consolidated with those of such
Person in its consolidated financial statements if such
statements were prepared as of such date.
<PAGE>
<PAGE>7
"Credit Extension" means the making of a Loan or
the issuance or extension of a Letter of Credit.
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments,
secured or unsecured, (iii) all obligations of such Person
to pay the deferred purchase price of property or services,
except trade accounts payable arising in the ordinary course
of business, (iv) all obligations of such Person as lessee
under capital leases, (v) all non-contingent reimbursement,
indemnity or similar obligations of such Person in respect
of amounts paid under letters of credit, surety bonds or
similar instruments, (vi) all Debt (of the kind described
in, and subject to the proviso at the end of, this
definition) of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person,
and (vii) all Debt (of the kind described in, and subject to
the proviso at the end of, this definition) of others which
is Guaranteed by such Person; provided that (a) with respect
to the Debt of a joint venture or partnership, such Debt
shall be deemed to be Debt of each Person participating
therein in an amount equal to such Person's pro rata
interest in such joint venture or partnership and (b) Debt
shall not include obligations arising under any agreement or
arrangement (in a form substantially similar to Exhibit I
hereto) between members of a group consolidated or combined
for purposes of computing income tax liability requiring a
member to make capital contributions or cash payments based
upon assumed tax benefits.
"Debt Rating" means a rating of the Borrower's
long-term debt which is not secured (except under the
Security Agreement) or supported by a guarantee, letter of
credit or other form of credit enhancement. If a Debt
Rating by a Rating Agency is required to be at or above a
specified level and such Rating Agency shall have changed
its system of classifications after the date hereof, the
requirement will be met if the Debt Rating by such Rating
Agency is at or above the new rating which most closely
corresponds to the specified level under the old rating
system.
"Default" means any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time or both would, unless cured or
waived, become an Event of Default.
<PAGE>
<PAGE>8
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks in
New York City are authorized by law to close.
"Domestic Lending Office" means, as to each Bank,
its office located at its address set forth in its Admini-
strative Questionnaire (or identified in its Administrative
Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic
Lending Office by notice to the Borrower and the Agent;
provided that any Bank may from time to time by notice to
the Borrower and the Agent designate separate Domestic
Lending Offices for its Base Rate Loans, on the one hand,
and its CD Loans, on the other hand, in which case all
references herein to the Domestic Lending Office of such
Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate
Loans or both.
"Domestic Reserve Percentage" has the meaning set
forth in Section 2.07(b).
"Effective Date" means the date on which this
Agreement becomes effective pursuant to Section 3.02.
"Eligible ESOP Debt" means Debt of an ESOP that is
guaranteed by the Borrower or a First Tier Subsidiary other
than PFS; provided that the aggregate original principal
amount of all Eligible ESOP Debt issued after June 4, 1990
(excluding Eligible ESOP Debt issued to refinance an equal
or greater outstanding principal amount of Eligible ESOP
Debt) shall not exceed $100,000,000 and provided, further,
that an issue of Debt of an ESOP shall constitute "Eligible
ESOP Debt" only if (i) such Debt is secured by a pledge of
all unallocated shares of capital stock of the Parent
purchased with the proceeds of such Debt and held in the
ESOP, (ii) the lender or lenders of such Debt agree that, if
such Debt is accelerated, they will first attempt in good
faith to satisfy such Debt by disposing of such pledged
shares, (iii) neither the Borrower nor any First Tier
Subsidiary shall be obligated to pay such Debt pursuant to
its Guaranty thereof, except to the extent that such lender
or lenders are not able to satisfy such Debt in full through
such good faith attempts within a specified period (not less
than six Domestic Business Days) after such Debt has been
accelerated and (iv) the provisions of the relevant
documentation implementing the foregoing clauses (i), (ii)
and (iii) shall not be less favorable to the guarantor of
such Debt, in any material respect, than the provisions of <PAGE>
<PAGE>9
(a) the Stock Pledge and Security Agreement, dated as of
October 19, 1990, between Harris Trust and Savings Bank, as
trustee under a trust established under the PacifiCorp K
Plus Employee Savings and Stock Ownership Trust Agreement
and The Bank of New York, as agent and (b) the Guaranty
Agreement, dated as of October 19, 1990, between the
Borrower, the banks listed therein and The Bank of New York,
as agent, relating to the Debt of the Borrower's current
ESOP outstanding on August 31, 1993.
"Environmental Laws" means, with respect to any
Person, any and all federal, state, local and foreign
statutes, laws and ordinances, and all rules and regulations
lawfully promulgated thereunder and judicial decisions with
respect thereto, as applicable to such Person; all
judgments, orders, decrees, injunctions issued to or against
such Person or to which such Person is subject; all
concessions, grants, franchises, licenses and agreements
held or entered into by such Person; and all other
governmental restrictions on such Person; all as the
foregoing relate to the environment, or to the effect of the
environment on human health, or to emissions, discharges or
releases of pollutants, contaminants, toxic, hazardous,
corrosive or radioactive substances or wastes into the
environment (including, without limitation, ambient air,
surface water, groundwater and land), or to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, toxic,
hazardous, corrosive or radioactive substances or wastes, or
to the cleanup or other remediation thereof.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended, or any successor statute.
"ERISA Group" means the Borrower, any First Tier
Significant Subsidiary and all members of a controlled group
of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the
Borrower or any First Tier Significant Subsidiary, are
treated as a single employer under Section 414 of the
Internal Revenue Code.
"ESOP" means, as the context may require, (i) an
employee stock ownership plan (as defined by the Internal
Revenue Code) adopted by the Borrower, (ii) a trust created
under any such plan or (iii) the trustee of any such trust.
"Estimated Interest Expense" means, for any period
of four consecutive Fiscal Quarters, the interest expense
(including related commitment fees, facility fees and
similar fees) estimated to accrue during such period in <PAGE>
<PAGE>10
respect of Debt of the Borrower, calculated on the basis of
the following assumptions: (i) the principal amount of Debt
of the Borrower outstanding at all times during such period
shall be the principal amount thereof outstanding at the
beginning of such period, reduced by scheduled amortization
of long-term Debt during such period, (ii) the rate of
interest on any Debt which fluctuates in relation to market
rates of interest shall be the rate in effect on the last
day of the Fiscal Quarter immediately preceding such period,
(iii) interest expense in respect of Debt of the Borrower
outstanding under the Intercompany Loan Agreements shall be
estimated net of (A) estimated interest payments to be
received by the Borrower thereunder and/or under other
interest-bearing securities and (B) estimated dividend
payments to be received by the Borrower on preferred stocks,
in each case held by the Borrower as of the first day of
such period (calculated in accordance with clauses (i) and
(ii) above), provided that such amount shall not be less
than zero for purposes of determining Estimated Interest
Expense for such period, and (iv) interest expense in
respect of Debt Guaranteed by the Borrower shall include
only such portion of such interest expense as is estimated
by the Borrower to be payable by the Borrower under its
Guarantees during such period.
"Estimated Tax Benefit" means, for any period of
four consecutive Fiscal Quarters, the product of (i) the
Estimated Interest Expense for such period times (ii) the
Net Effective Tax Rate for the period of four consecutive
Fiscal Quarters ended immediately prior to such period.
"Euro-Dollar Business Day" means any Domestic
Business Day on which commercial banks are open for
international business (including dealings in dollar
deposits) in London.
"Euro-Dollar Lending Office" means, as to each
Bank, its office, branch or affiliate located at its address
set forth in its Administrative Questionnaire (or identified
in its Administrative Questionnaire as its Euro-Dollar
Lending Office) or such other office, branch or affiliate of
such Bank as it may hereafter designate as its Euro-Dollar
Lending Office by notice to the Borrower and the Agent.
"Euro-Dollar Loan" means a Committed Loan to be
made by a Bank as a Euro-Dollar Loan in accordance with the
applicable Notice of Committed Borrowing.
"Euro-Dollar Margin" has the meaning set forth in
Section 2.07(c).
<PAGE>
<PAGE>11
"Euro-Dollar Reference Banks" means the principal
London offices of ABN Amro Bank, N.V., Bank of America
National Trust and Savings Association, and Morgan Guaranty
Trust Company of New York and each such other Bank as may be
appointed pursuant to Section 9.06(f).
"Euro-Dollar Reserve Percentage" has the meaning
set forth in Section 2.07(c).
"Event of Default" has the meaning set forth in
Section 6.01.
"Excess PFS Payment" means any dividend or other
distribution on shares of PFS's capital stock received by
the Borrower in cash and any payment of the principal of
Debt by PFS received by the Borrower in cash, if and to the
extent that (i) immediately after the receipt thereof, the
aggregate amount of all such dividends, distributions and
payments of principal received from PFS after June 30, 1993
exceeds the net income of PFS from July 1, 1993 to the end
of the most recently ended Fiscal Quarter and (ii) within
180 days after the Borrower receives such dividend,
distribution or payment, the Borrower elects, by written
notice to the Agent, to treat such dividend, distribution or
payment or a specified portion thereof as an "Excess PFS
Payment" for purposes of this Agreement.
"Excluded Cash Distributions" means dividends,
interest and other payments and distributions made upon or
with respect to the Collateral in cash, to the extent that
the Borrower is entitled to receive and retain such cash
under Section 7 of the Security Agreement.
"Excluded Dividend" means a dividend on shares of
the Borrower's capital stock which is designated, in a
notice signed by a Responsible Officer and delivered to the
Agent within 10 Domestic Business Days after such dividend
is declared, as an Excluded Dividend pursuant to one or more
of the following clauses of this definition:
(i) the Borrower may designate a dividend as an
Excluded Dividend pursuant to this clause if,
immediately after the declaration thereof, the
aggregate amount of all dividends designated as
Excluded Dividends pursuant to this clause would not
exceed the aggregate amount of all cash equity
Investments made by the Parent in the Borrower after
June 30, 1993, other than (A) any portion of such
equity Investments used as a basis for designating
dividends as Excluded Dividends pursuant to clause
(iii) below and (B) any cash equity Investment made by <PAGE>
<PAGE>12
the Parent in the Borrower after June 30, 1993 that, if not
received by the Borrower, would have resulted in a default
under Section 5.03;
(ii) the Borrower may designate a dividend as an
Excluded Dividend pursuant to this clause if, immedi-
ately after the declaration thereof, the aggregate
amount of all dividends designated as Excluded
Dividends pursuant to this clause would not exceed the
aggregate amount of all Net Cash Proceeds of Asset
Sales, Spring Creek Prepayments and Excess PFS Payments
received by the Borrower after June 30, 1993, less the
aggregate amount of the reductions of the Commitments
required pursuant to Section 2.09 as a result of the
Borrower's receipt thereof; and
(iii) the Borrower may designate a dividend as an
Excluded Dividend pursuant to this clause if such
dividend does not exceed the amount of a cash equity
Investment that the Borrower expects to receive from
the Parent within three Domestic Business Days after
such dividend is declared, provided that, if the
Borrower fails to receive such expected equity
Investment within said three Domestic Business Days,
then such dividend shall be designated as an Excluded
Dividend pursuant to this clause only to the extent of
the portion (if any) of such expected equity Investment
actually received by the Borrower within said three
Domestic Business Days.
"Excluded ESOP Debt" means, with respect to each
issue of Eligible ESOP Debt at any time, the lesser of (i)
the aggregate principal amount of such Eligible ESOP Debt
then outstanding or (ii) 75% of the then current fair market
value of any unallocated shares of capital stock of the
Parent held in the relevant ESOP and pledged to secure such
issue of Eligible ESOP Debt.
"Excluded Subsidiary" means (i) PFS, (ii) any
Finance Subsidiary (other than PFS), unless the Borrower
shall have elected, by notice to the Agent (which notice may
be rescinded by the Borrower at its election at any time),
to treat such Finance Subsidiary as a Restricted Subsidiary
for the purposes of this Agreement, and (iii) any Subsidiary
of any Excluded Subsidiary described in the foregoing
clauses (i) and (ii).
"Existing PFS Credit Agreement" means the
Revolving Credit Agreement dated as of May 1, 1991 among
PFS, various banks, Bank of America National Trust and <PAGE>
<PAGE>13
Savings Association, as agent, and the co-agents named
therein, as amended.
"Existing PHI Credit Agreement" means the Credit
Agreement dated as of June 4, 1990 among PacifiCorp
Holdings, Inc., the banks listed therein and Morgan Guaranty
Trust Company of New York, as Agent, as amended and restated
prior to the Effective Date.
"Existing Pledge Agreement" means the Pledge
Agreement dated as of August 21, 1992 between PacifiCorp
Holdings, Inc. and Morgan Guaranty Trust Company of New
York, as Collateral Agent thereunder.
"Federal Funds Rate" means, for any day, the rate
per annum (rounded upward, if necessary, to the nearest
1/100 of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New
York on the Domestic Business Day next succeeding such day,
provided that (i) if such day is not a Domestic Business
Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Domestic Business
Day as so published on the next succeeding Domestic Business
Day, and (ii) if no such rate is so published on such next
succeeding Domestic Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to Morgan Guaranty
Trust Company of New York on such day for such transactions
as determined by the Agent.
"Finance Subsidiary" means any Subsidiary of the
Borrower if, and as long as, the principal business of such
Subsidiary consists of extending credit, leasing assets,
providing financial services or holding securities for
investment.
"First Tier Significant Subsidiary" means any
First Tier Subsidiary which is a Significant Subsidiary;
provided that the term First Tier Significant Subsidiary
shall in any event include PTI and PFS and their respective
successors so long as they are Subsidiaries of the Borrower.
"First Tier Subsidiary" means any Subsidiary of
the Borrower the majority of whose Voting Stock is directly
owned by the Borrower.
"Fiscal Quarter" means a fiscal quarter of the
Borrower.
"Fiscal Year" means a fiscal year of the Borrower.
<PAGE>
<PAGE>14
"Fixed Rate Loans" means CD Loans or Euro-Dollar
Loans or Money Market Loans (excluding Money Market LIBOR
Loans bearing interest at the Base Rate pursuant to Section
8.01(a)) or any combination of the foregoing.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt of any other Person and,
without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such
Debt of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part),
provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary
course of business. The terms "Guarantor" used as a noun
and "Guarantee" used as a verb have corresponding meanings.
"Indemnitee" has the meaning set forth in Section
9.03(b).
"Intercompany Loan Agreements" means (i) the
Umbrella Loan Agreement dated as of April 4, 1983 between
the Parent and certain of its Subsidiaries, as in effect on
September 30, 1993, (ii) the Intercompany Borrowing
Agreement dated as of April 1, 1991 between the Borrower and
certain of its Subsidiaries and Affiliates, as in effect on
September 30, 1993, (iii) the Intercompany Credit Agreement
dated as of September 30, 1993 between the Borrower and PFS,
as in effect on September 30, 1993 and (iv) any additional
or substitute intercompany lending agreement, or amendment
thereto, among substantially the same parties and on
substantially the terms and conditions (other than rates of
interest) as any agreement described in clause (i), (ii) or
(iii) of this definition.
"Interest Expense" means, for any period of four
consecutive Fiscal Quarters, the interest expense (including
related commitment fees, facility fees and similar fees)
accrued during such period in respect of Debt of the
Borrower; provided that interest expense in respect of Debt
Guaranteed by the Borrower shall be included only to the
extent actually paid by the Borrower.
<PAGE>
<PAGE>15
"Interest Period" means: (1) with respect to each
Euro-Dollar Borrowing, the period commencing on the date of
such Borrowing and ending one, two, three or six months
thereafter, as the Borrower may elect in the applicable
Notice of Committed Borrowing; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall
be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest
Period shall end on the next preceding Euro-Dollar
Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a
day for which there is no numerically corresponding day
in the calendar month at the end of such Interest
Period) shall, subject to clauses (c) and (d) below,
end on the last Euro-Dollar Business Day of a calendar
month;
(c) if any Interest Period includes a Commitment
Reduction Date but does not end on such date, then (i)
the principal amount (if any) of each Euro-Dollar Loan
required to be repaid on such date shall have an
Interest Period ending on such date and (ii) the
remainder (if any) of each such Euro-Dollar Loan shall
have an Interest Period determined as set forth above;
and
(d) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(2) with respect to each CD Borrowing, the period
commencing on the date of such Borrowing and ending 30, 60,
90 or 180 days thereafter, as the Borrower may elect in the
applicable Notice of Committed Borrowing; provided that:
(a) any Interest Period (except an Interest
Period determined pursuant to clause (b)(i) below)
which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day;
(b) if any Interest Period includes a Commitment
Reduction Date but does not end on such date, then (i)
the principal amount (if any) of each CD Loan required
to be repaid on such date shall have an Interest Period
ending on such date and (ii) the remainder (if any) of <PAGE>
<PAGE>16
each such CD Loan shall have an Interest Period determined
as set forth above; and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(3) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 30 days
thereafter; provided that:
(a) any Interest Period (except an Interest
Period determined pursuant to clause (b)(i) below)
which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day;
(b) if any Interest Period includes a Commitment
Reduction Date but does not end on such date, then (i)
the principal amount (if any) of each Base Rate Loan
required to be repaid on such date shall have an
Interest Period ending on such date and (ii) the
remainder (if any) of each such Base Rate Loan shall
have an Interest Period determined as set forth above;
and
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(4) with respect to each Money Market LIBOR Borrowing, the
period commencing on the date of such Borrowing and ending
not less than 14 days thereafter, as the Borrower may elect
in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall
be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest
Period shall end on the next preceding Euro-Dollar
Business Day; and
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a
day for which there is no numerically corresponding day
in the calendar month at the end of such Interest
Period) shall, subject to clause (c) below, end on the
last Euro-Dollar Business Day of a calendar month; and
<PAGE>
<PAGE>17
(c) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
(5) with respect to each Money Market Absolute Rate
Borrowing, the period commencing on the date of such
Borrowing and ending not less than 15 days thereafter, as
the Borrower may elect in accordance with Section 2.03;
provided that:
(a) any Interest Period which would otherwise end
on a day which is not a Euro-Dollar Business Day shall
be extended to the next succeeding Euro-Dollar Business
Day; and
(b) any Interest Period which would otherwise end
after the Termination Date shall end on the Termination
Date.
"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended, or any successor statute.
"Investment" by any Person means (i) any
investment by such Person in any other Person, whether by
means of share purchase, capital contribution, loan
(including a non-recourse loan), advance, time deposit or
otherwise and (ii) any acquisition by such Person of
equipment or other assets (or interests therein) to be
leased to any other Person; provided that the term
"Investment" shall not include any capital contribution or
cash payment made under any agreement or arrangement (in a
form substantially similar to Exhibit I hereto) between
members of a group consolidated or combined for purposes of
computing income tax liability requiring a member to make
capital contributions or cash payments based upon assumed
tax benefits.
"Invitation for Money Market Quotes" has the
meaning set forth in Section 2.03(c).
"Junior Secured Obligation" has the meaning set
forth in Section 1 of the Security Agreement.
"LC Issuing Bank" has the meaning set forth in
Section 2.15(a).
"LC Liabilities" means, at any time, the sum,
without duplication, of (i) the aggregate amount available
for drawing under all Letters of Credit outstanding at such
time plus (ii) the aggregate unpaid amount at such time of <PAGE>
<PAGE>18
all Reimbursement Obligations in respect of previous
drawings made under Letters of Credit.
"LC Payment Date" has the meaning set forth in
Section 2.15(h).
"LC Reimbursement Date" means, with respect to any
Letter of Credit, an LC Payment Date applicable to such
Letter of Credit, or, if later, the Domestic Business Day
next succeeding the Domestic Business Day on which the Agent
shall have notified the Borrower of such LC Payment Date and
the amount payable by the relevant LC Issuing Bank under
such Letter of Credit on such LC Payment Date.
"LC Termination Notice" has the meaning set forth
in Section 2.15(d).
"Letter of Credit" has the meaning set forth in
Section 2.15(a).
"Level I Status" exists at any date if, at such
date, the Borrower has Debt Ratings at or above the level of
BBB by S&P and Baa2 by Moody's.
"Level II Status" exists at any date if (i) at
such date, the Borrower has Debt Ratings at or above the
level of BBB- by S&P and Baa3 by Moody's and (ii) Level I
Status does not exist on such date.
"Level III Status" exists at any date if (i) at
such date, the Borrower has Debt Ratings at or above the
level of BB+ by S&P and Ba1 by Moody's and (ii) neither
Level I Status nor Level II Status exists on such date.
"Level IV Status" exists at any date if none of
Level I Status, Level II Status or Level III Status exists
on such date.
"LIBOR Auction" means a solicitation of Money
Market Quotes setting forth Money Market Margins based on
the London Interbank Offered Rate pursuant to Section 2.03.
"Lien" means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, or any other type of preferential
arrangement that has substantially the same practical effect
as a security interest, in respect of such asset. For the
purposes of this Agreement, the Borrower or any Subsidiary
shall be deemed to own subject to a Lien any asset which it
has acquired or holds subject to the interest of a vendor or<PAGE>
<PAGE>19
lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar Loan
or a Money Market Loan and "Loans" means Domestic Loans or
Euro-Dollar Loans or Money Market Loans or any combination
of the foregoing.
"London Interbank Offered Rate" has the meaning
set forth in Section 2.07(c).
"Material Debt" means Debt arising under a single
or series of related instruments or other agreements in a
principal amount exceeding $5,000,000; provided that Non-
Recourse Debt of PFS and PGC and their respective
Subsidiaries shall not constitute "Material Debt".
"Material Plan" means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of
$50,000,000.
"Maximum Senior Secured Amount" has the meaning
set forth in Section 1 of the Security Agreement.
"Money Market Absolute Rate" has the meaning set
forth in Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan to
be made by a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each
Bank, its Domestic Lending Office or such other office,
branch or affiliate of such Bank as it may hereafter
designate as its Money Market Lending Office by notice to
the Borrower and the Agent; provided that any Bank may from
time to time by notice to the Borrower and the Agent
designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money
Market Absolute Rate Loans, on the other hand, in which case
all references herein to the Money Market Lending Office of
such Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made
by a Bank pursuant to a LIBOR Auction (including such a loan
bearing interest at the Base Rate pursuant to Section
8.01(a)).
"Money Market Loan" means a Money Market LIBOR
Loan or a Money Market Absolute Rate Loan.
<PAGE>
<PAGE>20
"Money Market Margin" has the meaning set forth in
Section 2.03(d).
"Money Market Quote" means an offer by a Bank to
make a Money Market Loan in accordance with Section 2.03.
"Money Market Quote Request" has the meaning set
forth in Section 2.03(b).
"Moody's" means Moody's Investors Service, Inc., a
Delaware corporation, and its successors or, if such
corporation shall be dissolved or liquidated or shall no
longer perform the functions of a securities rating agency,
"Moody's" shall be deemed to refer to any other nationally
recognized securities rating agency designated by the
Required Banks, with the approval of the Borrower, by notice
to the Agent and the Borrower.
"Multiemployer Plan" means at any time an employee
pension benefit plan within the meaning of Section
4001(a)(3) of ERISA to which any member of the ERISA Group
is then making or accruing an obligation to make
contributions or has within the preceding five plan years
made contributions, including for these purposes any Person
which ceased to be a member of the ERISA Group during such
five year period.
"Net Cash Proceeds of Asset Sales" means cash
proceeds received by the Borrower from any sale of assets
that are or were at any time included in the Collateral
(whether or not such assets shall have been released from
the Security Interests pursuant to Section 16 of the
Security Agreement prior to such sale), including, without
limitation, cash received under any instrument evidencing an
obligation of the purchaser to make payments to the Borrower
after the date of such sale, but only if and to the extent
that all such cash proceeds received from such sale exceed,
on a cumulative basis, the sum of (x) all expenses
reasonably incurred by the Borrower in respect of such sale
and (y) any taxes paid or estimated to be payable by the
Borrower in respect of such sale (as set forth in a
certificate of a Responsible Officer delivered to the
Agent).
"Net Effective Tax Rate" means, for any period,
the net effective book rate of federal and state income tax
recorded for such period by the consolidated group of which
the Borrower was a member.
"Non-Recourse Debt" of any Person means at any
time Debt secured by a Lien in or upon one or more assets of<PAGE>
<PAGE>21
such Person where the rights and remedies of the holder of
such Debt in respect of such Debt do not extend to any other
assets of such Person. Notwithstanding the foregoing, Debt
of any Person shall not fail to constitute Non-Recourse Debt
by reason of the inclusion in any document evidencing,
governing, securing or otherwise relating to such Debt of
provisions to the effect that such Person shall be liable,
beyond the assets securing such Debt, for (i) misapplied
moneys, including insurance and condemnation proceeds and
security deposits, (ii) indemnification by such Person in
favor of holders of such Debt and their affiliates in
respect of liabilities to third parties, including
environmental liabilities, (iii) breaches of customary
representations and warranties given to the holders of such
Debt and (iv) such other similar obligations as are
customarily excluded from the provisions that otherwise
limit the recourse of commercial lenders making so-called
"non-recourse" loans to institutional borrowers.
"Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing
the obligation of the Borrower to repay the Loans, and
"Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed
Borrowing (as defined in Section 2.02) or a Notice of Money
Market Borrowing (as defined in Section 2.03(f)).
"Notice to Foreclose" has the meaning set forth in
Section 1 of the Security Agreement.
"ONSITE Notes" means the Series A Notes of ONSITE
Funding Corporation referred to in item (6) of Schedule I to
the Security Agreement.
"Original Pledged Stock" has the meaning set forth
in Section 1 of the Security Agreement.
"Other Senior Secured Obligation" means any Senior
Secured Obligation (as defined in the Security Agreement)
other than (i) obligations of the Borrower to pay principal,
reimbursement obligations, interest and other amounts under
this Agreement and the Notes and (ii) obligations of the
Borrower to pay fees, expenses and other amounts to the
Collateral Agent pursuant to Section 11 of the Security
Agreement.
"Outstanding Credit Exposure" means, as to any
Bank at any time, the sum of (i) the aggregate principal<PAGE>
<PAGE>22
amount of its Loans outstanding at such time plus (ii) its
Outstanding LC Exposure at such time.
"Outstanding LC Exposure" means, as to any Bank at
any time, an amount equal to its Percentage of the LC
Liabilities at such time.
"Parent" means PacifiCorp, an Oregon corporation,
and its successors.
"Participant" has the meaning set forth in Section
9.06(b).
"PBGC" means the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its
functions under ERISA.
"PCI" means PacifiCorp Credit, Inc., an Oregon
corporation, and its successors.
"PCI Agreement" has the meaning set forth in the
Security Agreement.
"Percentage" means, with respect to each Bank, the
percentage that such Bank's Commitment constitutes of the
aggregate amount of the Commitments.
"Permitted Liens" means the following:
(i) Liens for taxes or other governmental charges
either not yet delinquent or nonpayment of which is at the
time being contested in good faith by appropriate
proceedings;
(ii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics and materialmen or other
like Liens incurred in the ordinary course of business for
sums not yet due or the payment of which is at the time
being contested in good faith by appropriate proceedings;
(iii) Liens incurred or deposits made in the
ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids,
leases, government contracts, and reclamation, performance
and return-of-money bonds (in each case, not constituting
Debt);
(iv) Liens created by or relating to any legal
proceeding which at the time is being contested in good<PAGE>
<PAGE>23
faith by appropriate proceedings; provided that, in the case
of a Lien consisting of an attachment or judgment Lien, the
judgment it secures shall, within 60 days of entry thereof,
have been discharged or execution thereof stayed pending
appeal, or discharged within 60 days after the expiration of
any such stay;
(v) any Lien on any asset securing Debt incurred
or assumed for the purpose of financing all or any part of
the cost of acquiring such asset, provided that such Lien
attaches to such asset concurrently with or within 90 days
after the acquisition thereof;
(vi) any Lien on any asset of any corporation
existing at the time such corporation is merged or
consolidated with or into the Borrower and not created in
contemplation of such event;
(vii) any Lien existing on any asset prior to the
acquisition thereof by the Borrower and not created in
contemplation of such acquisition;
(viii) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured by any
Lien permitted by any of the foregoing clauses (v), (vi) and
(vii), provided that such Debt is not increased and is not
secured by any additional assets;
(ix) any Lien securing Non-Recourse Debt of the
Borrower, provided that the assets subject to such Lien are
not included in the Collateral and shall not have been
released from the Security Interests pursuant to Section
2.16(a)(2);
(x) any Lien on (i) the proceeds of sale of
commercial paper issued by the Borrower or (ii) the
Borrower's right to receive such proceeds, securing the
Borrower's obligation to reimburse the issuer of a letter of
credit for drawings to repay commercial paper previously
issued by the Borrower;
(xi) if at any time the Commitments shall be
reduced pursuant to Section 2.09(c) and any Other Senior
Secured Obligation is not reduced on a pro rata basis in
connection with the same receipt of Net Cash Proceeds of
Asset Sales, Spring Creek Prepayment or Excess PFS Payment
(the "Underlying Transaction"), any Lien on cash or Approved
Securities securing such Other Senior Secured Obligation;
provided that the aggregate amount secured by such Lien
shall not exceed the amount that would have been required to
be applied (but was not applied) to reduce such Other Senior<PAGE>
<PAGE>24
Secured Obligation on a pro rata basis with the Commitments
in connection with the Underlying Transaction; and
(xii) Liens incidental to the conduct of the
Borrower's business or the ownership of its assets which (x)
do not secure Debt and (y) do not in the aggregate materi-
ally detract from the value of its assets or materially
impair the use thereof in the operation of its business.
"Permitted Support Agreements" means the existing
support agreements listed in Schedule I hereto as in effect
on August 31, 1993 and any amended, additional or substitute
support agreements which do not require the Borrower or any
of its Subsidiaries to maintain the net worth of PFS at a
level higher than $10,000,000 or contain any provision
materially more adverse to the Borrower than the provisions
of said existing support agreements; provided that amended,
additional or substitute support agreements may have longer
terms than said existing support agreements. For purposes
of this definition, any financial covenant, defined term or
other provision of any other document which determines or
affects the Borrower's obligations under a Permitted Support
Agreement shall be deemed to be part of such Permitted
Support Agreement (and any amendment of such covenant,
defined term or other provision shall be deemed to be an
amendment of such Permitted Support Agreement).
"Person" means an individual, a corporation, a
partnership, an association, a trust or any other entity or
organization, including a government or political
subdivision or an agency or instrumentality thereof.
"PFS" means PacifiCorp Financial Services, Inc.,
an Oregon corporation, and its successors.
"PGC" means Pacific Generation Company, an Oregon
corporation, and its successors.
"Plan" means at any time an employee pension
benefit plan (other than a Multiemployer Plan) which is
covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Internal Revenue
Code and either (i) is maintained, or contributed to, by any
member of the ERISA Group for employees of any member of the
ERISA Group or (ii) has at any time within the preceding
five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for
employees of any Person which was at such time a member of
the ERISA Group.
<PAGE>
<PAGE>25
"Pledged Securities" has the meaning set forth in
Section 1 of the Security Agreement.
"Pledged Stock" has the meaning set forth in
Section 1 of the Security Agreement.
"Prime Rate" means the rate of interest publicly
announced by Morgan Guaranty Trust Company of New York in
New York City from time to time as its Prime Rate.
"Pro Forma Interest Expense (After Tax)" means, at
the end of any Fiscal Quarter, an amount equal to (i)
Estimated Interest Expense for the period of four consecu-
tive Fiscal Quarters immediately following such Fiscal
Quarter minus (ii) Estimated Tax Benefits for such period.
"Projected Aggregate Usage" means at any time (a
"time of determination"), with respect to any subsequent
Commitment Reduction Date, the Aggregate Usage at the time
of determination less (i) the aggregate principal amount of
Loans then outstanding that mature or have Interest Periods
ending on or before such Commitment Reduction Date and (ii)
the aggregate amount available for drawing under all Letters
of Credit then outstanding that will expire on or before
such Commitment Reduction Date.
"PTI" means Pacific Telecom, Inc., a Washington
corporation, and its successors.
"Qualified Investment Subsidiary" means any
Subsidiary of the Borrower, so long as (i) it has no Debt,
(ii) it engages in no business other than investing in
securities and holding securities for investment and (iii)
the Borrower owns directly 100% of its capital stock.
"Qualified Investment Subsidiary Income" means,
for any period, the aggregate amount of dividends and
interest actually received by Qualified Investment Subsidi-
aries during such period, less (i) any portion thereof which
could not be paid to the Borrower as dividends during such
period without violating any legal or contractual restric-
tion applicable to the relevant Qualified Investment
Subsidiary and (ii) the amount of any taxes or other
liabilities that would be payable by the Borrower or its
Qualified Investment Subsidiaries if said aggregate amount
were paid to the Borrower as dividends during such period.
"Rating Agency" means S&P or Moody's.
<PAGE>
<PAGE>26
"Reference Banks" means the CD Reference Banks or
the Euro-Dollar Reference Banks, as the context may require,
and "Reference Bank" means any one of such Reference Banks.
"Refunding Borrowing" means a Committed Borrowing
which, after application of the proceeds thereof, results in
no net increase in the aggregate outstanding principal
amount of Committed Loans made by any Bank.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from
time to time.
"Reimbursement Obligations" means, at any time,
the aggregate of all obligations of the Borrower then
outstanding under Section 2.15 to reimburse the LC Issuing
Banks for amounts paid by the LC Issuing Banks in respect of
drawings under Letters of Credit.
"Required Banks" means at any time Banks having at
least 60% of the aggregate amount of the Commitments or, if
the Commitments shall have been terminated, having at least
60% of the aggregate amount of the Outstanding Credit
Exposures.
"Responsible Officer" means the Chairman of the
Board, the President, any Vice President, the Treasurer or
the Controller of the Borrower.
"Restricted Dividend" means any dividend or other
distribution on any shares of the Borrower's capital stock,
except (i) dividends payable solely in shares of its capital
stock and (ii) Excluded Dividends.
"Restricted Stock Payment" means any payment on
account of the purchase, redemption, retirement or
acquisition of (i) any shares of the Borrower's capital
stock or (ii) any option, warrant or other right to acquire
shares of the Borrower's capital stock.
"Restricted Subsidiary" means any Consolidated
Subsidiary of the Borrower which is not an Excluded
Subsidiary.
"S&P" means Standard & Poor's Corporation, a New
York corporation, and its successors or, if such corporation
shall be dissolved or liquidated or shall no longer perform
the functions of a securities rating agency, "S&P" shall be
deemed to refer to any other nationally recognized
securities rating agency designated by the Required Banks,<PAGE>
<PAGE>27
with the approval of the Borrower, by notice to the Agent
and the Borrower.
"Secured Agreement" means, at any time, (i) any
agreement under which a Secured Obligation is then outstand-
ing or is thereafter to be issued or created or (ii) any
instrument evidencing a Secured Obligation then outstanding.
"Secured Obligations" has the meaning set forth in
Section 1 of the Security Agreement.
"Secured Parties" has the meaning set forth in
Section 1 of the Security Agreement.
"Security Agreement" means the Security Agreement
dated as of September 30, 1993 between the Borrower and the
Collateral Agent, substantially in the form of Exhibit J
hereto, as the same may be amended from time to time.
"Security Interests" has the meaning set forth in
Section 1 of the Security Agreement.
"Senior Secured Obligations" has the meaning set
forth in Section 1 of the Security Agreement.
"Short-Term Debt Rating" means a rating of the
Borrower's short-term debt which is not secured (except
under the Security Agreement) or supported by a guarantee,
letter of credit or other form of credit enhancement. If a
Short-Term Debt Rating by a Rating Agency is required to be
at or above a specified level and such Rating Agency shall
have changed its system of classifications after the date
hereof, the requirement will be met if the Short-Term Debt
Rating by such Rating Agency is at or above the new rating
which most closely corresponds to the specified level under
the old rating system.
"Significant Subsidiary" means at any time any
Subsidiary of the Borrower which as of such time meets the
definition of a "significant subsidiary" contained as of
September 30, 1993 in Regulation S-X of the Securities and
Exchange Commission; provided that in any event the term
Significant Subsidiary shall (i) include PCI so long as it
holds any legal or beneficial interest in any of the Spring
Creek Obligations or any rights under the Spring Creek Loan
Documents and (ii) not include Vermont Castings, a Vermont
corporation, Color Spot, Inc., an Oregon corporation, or
Comdial Corporation, a Delaware corporation.
"Spring Creek" means Spring Creek Coal Company, a
Montana corporation, and its successors.
<PAGE>
<PAGE>28
"Spring Creek Coal Contracts" means (i) the Coal
Supply Agreement dated June 2, 1978, between Spring Creek
and Utility Fuels, Inc., (ii) the coal purchase contract
dated December 21, 1987 between Spring Creek and Kerr-McGee
Coal Corporation and (iii) the coal purchase contract dated
December 21, 1987 between Spring Creek and Exxon Coal USA,
Inc., in each case as amended and in effect on the date
hereof.
"Spring Creek Loan Agreement" means the Loan
Commitment and Agreement dated as of June 2, 1993 between
Spring Creek and the Borrower (under which the Borrower
designated PCI as the affiliate to make the initial loan of
$225,000,000 to Spring Creek), as such agreement may be
amended from time to time.
"Spring Creek Loan Documents" means the "Loan
Documents" (as such term is defined in Section 1.1 of the
Spring Creek Loan Agreement as in effect on the date
hereof), as such Loan Documents may be amended from time to
time.
"Spring Creek Note" means the promissory note
issued by Spring Creek to PCI pursuant to the Spring Creek
Loan Agreement, as such note may be amended from time to
time.
"Spring Creek Obligations" means the obligations
under the Spring Creek Loan Documents of Spring Creek,
Spring Creek's affiliates and each issuer of a Letter of
Credit (as defined in Section 1.1 of the Spring Creek Loan
Agreement as in effect on the date hereof), in each case
whether now existing or hereafter issued or arising.
"Spring Creek Participation Agreement" means the
Amended and Restated Participation Agreement dated as of
June 2, 1993 between PCI and the Borrower (under which the
Borrower purchased the Borrower's Interest in Spring Creek
Obligations from PCI), as such agreement may be amended from
time to time.
"Spring Creek Prepayment" means any prepayment of
principal, interest or other amounts payable with respect to
Borrower's Interest in Spring Creek Obligations.
"Subsidiary" means, with respect to any Person,
any corporation or other entity of which securities or other
ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons
performing similar functions are at the time directly or
indirectly owned by such Person.
<PAGE>
<PAGE>29
"Termination Date" means September 30, 1998, or,
if such day is not a Euro-Dollar Business Day, the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case
the Termination Date shall be the next preceding Euro-Dollar
Business Day.
"Total Senior Secured Obligations" means at any
time the sum of:
(i) the aggregate amount of the Commitments then
in effect hereunder or, if the Commitments shall have
been terminated, the sum of the aggregate outstanding
principal amount of Loans at such time plus the
aggregate outstanding amount of the LC Liabilities at
such time;
(ii) the aggregate outstanding amount of all
Secured Obligations referred to in clauses (ii), (iii)
and (v) of the definition thereof (except Additional
Secured Obligations referred to in Section 18(B) of the
Security Agreement for which a Maximum Senior Secured
Amount has been designated); and
(iii) the Maximum Senior Secured Amount of all
Secured Obligations referred to in Section 18(B) of the
Security Agreement.
"Unfunded Liabilities" means, with respect to any
Plan at any time, the amount (if any) by which (i) the value
of all benefit liabilities under such Plan, determined on a
plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds
(ii) the fair market value of all Plan assets allocable to
such liabilities under Title IV of ERISA (excluding any
accrued but unpaid contributions), all determined as of the
then most recent valuation date for such Plan, but only to
the extent that such excess represents a potential liability
of a member of the ERISA Group to the PBGC or any other
Person under Title IV of ERISA.
"United States" means the United States of
America, including the States and the District of Columbia,
but excluding its territories and possessions.
"Voting Stock" of any corporation means stock that
has ordinary voting power to vote for the election of one or
more directors of such corporation.
SECTION 1.02. Accounting Terms and Determin-
ations. Unless otherwise specified herein, all accounting <PAGE>
<PAGE>30
terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be
prepared in accordance with generally accepted accounting
principles as in effect from time to time, applied on a
basis consistent (except for changes concurred in by the
Borrower's independent public accountants) with the most
recent audited consolidated financial statements of the
Borrower and its Consolidated Subsidiaries delivered to the
Banks; provided that, if the Borrower notifies the Agent
that the Borrower wishes to amend any covenant in Article V
to eliminate the effect of any change in generally accepted
accounting principles on the operation of such covenant (or
if the Agent notifies the Borrower that the Required Banks
wish to amend Article V for such purpose), then the
Borrower's compliance with such covenant shall be determined
on the basis of generally accepted accounting principles in
effect immediately before the relevant change in generally
accepted accounting principles became effective, until
either such notice is withdrawn or such covenant is amended
in a manner satisfactory to the Borrower and the Required
Banks.
SECTION 1.03. Types of Borrowings. The term
"Borrowing" denotes the aggregation of Loans of one or more
Banks to be made to the Borrower pursuant to Article II on a
single date and for a single Interest Period. Borrowings
are classified for purposes of this Agreement either by
reference to the pricing of Loans comprising such Borrowing
(e.g., a "Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of
Article II under which participation therein is determined
(i.e., a "Committed Borrowing" is a Borrowing under Section
2.01 in which all Banks participate in proportion to their
Commitments, while a "Money Market Borrowing" is a Borrowing
under Section 2.03 in which the Bank participants are deter-
mined on the basis of their bids in accordance therewith).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Each Bank
severally agrees, on the terms and conditions set forth in
this Agreement, to make loans to the Borrower pursuant to
this Section from time to time prior to the Termination
Date; provided that, immediately after each such Loan is
made, the sum of (i) the aggregate outstanding principal
amount of Committed Loans made by such Bank plus (ii) its <PAGE>
<PAGE>31
Outstanding LC Exposure shall not exceed the amount of its
Commitment. Each Borrowing under this Section shall be in
an aggregate principal amount of $10,000,000 or any larger
integral multiple of $1,000,000 (except that any such
Borrowing may be in the aggregate amount available in
accordance with Section 3.01(b)) and shall be made from the
several Banks ratably in accordance with their respective
Percentages. Within the foregoing limits, the Borrower may
borrow, repay, or to the extent permitted by Section 2.11,
prepay Loans and reborrow at any time prior to the
Termination Date.
SECTION 2.02. Notice of Committed Borrowing. (a)
The Borrower shall give the Agent notice (a "Notice of
Committed Borrowing") not later than 11:00 A.M. (New York
City time) on (x) the date of each Base Rate Borrowing,
(y) the second Domestic Business Day before each CD
Borrowing and (z) the third Euro-Dollar Business Day before
each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Domestic
Borrowing or a Euro-Dollar Business Day in the case of
a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing
are to be CD Loans, Base Rate Loans or Euro-Dollar
Loans, and
(iv) in the case of a Fixed Rate Borrowing, the
duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest
Period.
(b) The provisions of subsection (a) above
notwithstanding, if the Borrower shall not have given a
Notice of Committed Borrowing at least two Domestic Business
Days before the last day of the Interest Period applicable
to an outstanding Committed Borrowing, then, unless the
Borrower notifies the Agent at least two Domestic Business
Days before such date that it elects not to borrow on such
date, the Agent shall be deemed to have received a Notice of
Committed Borrowing specifying that (i) the date of the
proposed Borrowing shall be the last day of the Interest
Period applicable to such outstanding Committed Borrowing,
(ii) the aggregate amount of the proposed Borrowing shall be
the amount of such outstanding Committed Borrowing (reduced
to the extent necessary to reflect any reduction of the
Commitments on or prior to the date of the proposed <PAGE>
<PAGE>32
Borrowing), and (iii) the Loans comprising the proposed
Borrowing shall be Base Rate Loans.
SECTION 2.03. Money Market Borrowings. (a) The
Money Market Option. In addition to Committed Borrowings
pursuant to Section 2.01, the Borrower may, as set forth in
this Section, request the Banks to make offers to make Money
Market Loans to the Borrower; provided that no such request
shall be made on any day unless on such day (A) Level I
Status or Level II Status exists or (B) the Borrower has a
Short-Term Debt Rating at or above the level of A-2 from S&P
or P-2 from Moody's. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers in the
manner set forth in this Section.
(b) Money Market Quote Request. When the
Borrower wishes to request offers to make Money Market Loans
under this Section, it shall transmit to the Agent by telex
or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit B hereto (a "Money
Market Quote Request") so as to be received no later than
11:00 A.M. (New York City time) on (x) the fifth Euro-Dollar
Business Day prior to the date of Borrowing proposed
therein, in the case of a LIBOR Auction or (y) the Domestic
Business Day next preceding the date of Borrowing proposed
therein, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the
Agent shall have agreed upon and the Agent shall have
specified in a notice given to the Banks not later than the
date of the Money Market Quote Request for the first LIBOR
Auction or Absolute Rate Auction for which such change is to
be effective) specifying:
(i) the proposed date of Borrowing, which shall
be a Euro-Dollar Business Day in the case of a LIBOR
Auction or a Domestic Business Day in the case of an
Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which
shall be $10,000,000 or a larger integral multiple of
$1,000,000 (except that any such Borrowing may be in
the aggregate amount available in accordance with
Section 3.01(b)),
(iii) the duration of the Interest Period
applicable thereto, subject to the provisions of the
definition of Interest Period, and
<PAGE>
<PAGE>33
(iv) whether the Money Market Quotes requested
are to set forth a Money Market Margin or a Money
Market Absolute Rate.
The Borrower may request offers to make Money Market Loans
for up to five Interest Periods in a single Money Market
Quote Request. No Money Market Quote Request shall be given
within five Euro-Dollar Business Days (or such other number
of days as the Borrower and the Agent may agree) of any
other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly
upon receipt of a Money Market Quote Request, the Agent
shall send to the Banks by telex or facsimile transmission
an Invitation for Money Market Quotes substantially in the
form of Exhibit C hereto (an "Invitation for Money Market
Quotes"), which shall constitute an invitation by the
Borrower to each Bank to submit Money Market Quotes offering
to make the Money Market Loans to which such Money Market
Quote Request relates in accordance with this Section.
(d) Submission and Contents of Money Market
Quotes. (i) Each Bank may submit a Money Market Quote
containing an offer or offers to make Money Market Loans in
response to any Invitation for Money Market Quotes. Each
Money Market Quote must comply with the requirements of this
subsection (d) and must be submitted to the Agent by telex
or facsimile transmission at its offices specified in or
pursuant to Section 9.01 not later than (x) 2:00 P.M. (New
York City time) on the fourth Euro-Dollar Business Day prior
to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) 9:15 A.M. (New York City time) on the
proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as
shall be agreed upon by the Borrower and the Agent and
specified in the Invitation for Money Market Quotes);
provided that Money Market Quotes submitted by the Agent (or
any affiliate of the Agent) in the capacity of a Bank may be
submitted, and may only be submitted, if the Agent or such
affiliate notifies the Borrower of the terms of the offer or
offers contained therein not later than (x) one hour prior
to the deadline for the other Banks, in the case of a LIBOR
Auction or (y) 15 minutes prior to the deadline for the
other Banks, in the case of an Absolute Rate Auction.
Subject to Articles III and VI, any Quote so made shall be
irrevocable except with the written consent of the Agent
given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in
substantially the form of Exhibit D hereto and shall in any
case specify:
<PAGE>
<PAGE>34
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan
for which each such offer is being made, which
principal amount (w) may be greater than, equal to or
less than the Commitment of the quoting Bank, (x) must
be $1,000,000 or a larger integral multiple thereof,
(y) may not exceed the principal amount of Money Market
Loans for which offers were requested in the related
Money Market Quote Request, and (z) may be subject to a
limitation as to the aggregate principal amount of
Money Market Loans for which offers being made by such
quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin
above or below the applicable London Interbank Offered
Rate (the "Money Market Margin"), if any, offered for
each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000 of 1%) to be added
to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the
rate of interest per annum (specified to the nearest
1/10,000 of 1%) (the "Money Market Absolute Rate")
offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate
offers by the quoting Bank with respect to each
Interest Period specified in the related Invitation for
Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded
if it:
(A) is not substantially in conformity with
Exhibit D hereto or does not specify all of the
information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar
language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation for Money
Market Quotes; or
(D) arrives after the time set forth in
subsection (d)(i).
<PAGE>
<PAGE>35
(e) Notice to Borrower. The Agent shall promptly
notify the Borrower of the terms (x) of any Money Market
Quote submitted by a Bank that is in accordance with
subsection (d) and (y) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Bank with
respect to the same Money Market Quote Request. Any such
subsequent Money Market Quote shall be disregarded by the
Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money
Market Quote. The Agent's notice to the Borrower shall
specify (A) the aggregate principal amount of Money Market
Loans for which offers have been received for each Interest
Period specified in the related Money Market Quote Request
(B) the respective principal amounts and Money Market
Margins or Money Market Absolute Rates, as the case may be,
so offered and (C) if applicable, limitations on the
aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later
than 10:00 A.M. (New York City time) on (x) the third
Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) the
proposed date of Borrowing, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the
Borrower and the Agent shall have agreed upon and the Agent
shall have specified in a notice given to the Banks not
later than the date of the Quote Request for the first LIBOR
Auction or Absolute Rate Auction for which such change is to
be effective), the Borrower shall notify the Agent of its
acceptance or non-acceptance of the offers so notified to it
pursuant to subsection (e). In the case of acceptance, such
notice (a "Notice of Money Market Borrowing") shall specify
the aggregate principal amount of offers for each Interest
Period that are accepted. The Borrower may accept any Money
Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount
set forth in the related Money Market Quote Request,
(ii) immediately after giving effect to such Money
Market Borrowing, the conditions set forth in Section
3.01(b) would be satisfied,
(iii) the principal amount of each Money Market
Borrowing must be $10,000,000 or a larger integral
multiple of $1,000,000 (except that any such Borrowing
may be in the aggregate amount available in accordance
with Section 3.01(b)),
<PAGE>
<PAGE>36
(iv) acceptance of offers for a given Interest
Period may only be made on the basis of ascending Money
Market Margins or Money Market Absolute Rates, as the
case may be,
(v) the Borrower may not accept any offer that is
described in subsection (d)(iii) or that otherwise
fails to comply with the requirements of this
Agreement; and
(vi) on the date of the acceptance of such Money
Market Borrowing either (A) Level I Status or Level II
Status exists or (B) the Borrower has a Short-Term Debt
Rating at or above the level of A-2 from S&P or P-2
from Moody's.
(g) Allocation by Agent. If offers are made by
two or more Banks with the same Money Market Margins or
Money Market Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related
Interest Period, the principal amount of Money Market Loans
in respect of which such offers are accepted shall be
allocated by the Agent among such Banks as nearly as
possible (in integral multiples of such amount not greater
than $1,000,000 as the Agent may deem appropriate) in
proportion to the aggregate principal amounts of such
offers. Determinations by the Agent of the amounts of Money
Market Loans shall be conclusive in the absence of manifest
error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the
Agent shall promptly notify each Bank of the contents
thereof and of such Bank's share (if any) of such Borrowing
and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(b) Not later than (x) 12:00 Noon (New York City
time) on the date of each Borrowing other than a Base Rate
Borrowing and (y) 1:00 P.M. (New York City time) on the date
of each Base Rate Borrowing, each Bank participating therein
shall (except as provided in subsection (c) of this Section)
make available its share of such Borrowing, in Federal or
other funds immediately available in New York City, to the
Agent at its address specified in or pursuant to Section
9.01. Unless the Agent determines that any applicable
condition specified in Article III has not been satisfied or
waived, the Agent will, promptly upon receipt thereof, make
the funds so received from the Banks available to the <PAGE>
<PAGE>37
Borrower in immediately available funds at the Agent's
aforesaid address.
(c) If any Bank makes a new Loan hereunder on a
day on which the Borrower is to repay all or any part of an
outstanding Loan from such Bank, such Bank shall apply the
proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any) between the amount
being borrowed and the amount being repaid shall be made
available by such Bank to the Agent as provided in
subsection (b), or remitted by the Borrower to the Agent as
provided in Section 2.12, as the case may be.
(d) Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such
Bank will not make available to the Agent such Bank's share
of such Borrowing, the Agent may assume that such Bank has
made such share available to the Agent on the date of such
Borrowing in accordance with subsections (b) and (c) of this
Section 2.04 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank
shall not have so made such share available to the Agent,
such Bank and the Borrower severally agree to repay to the
Agent, within one Domestic Business Day after 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 Agent,
at (i) in the case of the Borrower, a rate per annum equal
to the higher of the Federal Funds Rate and the interest
rate applicable to the Loans included in such Borrowing
pursuant to Section 2.07 and (ii) in the case of such Bank,
the Federal Funds Rate. If such Bank shall repay to the
Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for
purposes of this Agreement.
SECTION 2.05. Notes.
(a) The Loans of each Bank shall be evidenced by
a single Note payable to the order of such Bank for the
account of its Applicable Lending Office in an amount equal
to the aggregate unpaid principal amount of such Bank's
Loans.
(b) Each Bank may, by notice to the Borrower and
the Agent, request that its Loans of a particular type be
evidenced by a separate Note in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such
Note shall be in substantially the form of Exhibit A hereto
with appropriate modifications to reflect the fact that it <PAGE>
<PAGE>38
evidences solely Loans of the relevant type. Each reference
in this Agreement to the "Note" of such Bank shall be deemed
to refer to and include any or all of such Notes, as the
context may require.
(c) Upon receipt of each Bank's Note pursuant to
Section 3.02(b), the Agent shall forward such Note to such
Bank. Each Bank shall record the date, amount, type and
maturity of each Loan made by it and the date and amount of
each payment of principal made by the Borrower with respect
thereto, and may, if such Bank so elects in connection with
any transfer or enforcement of its Note, endorse on the
schedule forming a part thereof appropriate notations to
evidence the foregoing information with respect to each such
Loan then outstanding; provided that the failure of any Bank
to make any such recordation or endorsement, or any error in
the making thereof, shall not affect the obligations of the
Borrower hereunder or under the Notes. Each Bank is hereby
irrevocably authorized by the Borrower so to endorse its
Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. Each Loan
included in any Borrowing shall mature, and the principal
amount thereof shall be due and payable, on the last day of
the Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates.
(a) Each Base Rate Loan shall bear interest on
the outstanding principal amount thereof, for each day from
the date such Loan is made until it becomes due, at a rate
per annum equal to the Base Rate for such day plus the Base
Rate Margin. Such interest shall be payable for each
Interest Period on the last day thereof. Any overdue
principal of and overdue interest on any Base Rate Loan
shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of (i) 1% plus
(ii) the Base Rate for such day plus (iii) the Base Rate
Margin.
"Base Rate Margin" means a rate per annum equal to
(i) 0% for any day on which Level I Status or Level II
Status exists, (ii) .0625% for any day on which Level III
Status exists and (iii) .4375% for any day on which Level IV
Status exists.
(b) Each CD Loan shall bear interest on the
outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the
sum of the CD Margin plus the applicable Adjusted CD Rate; <PAGE>
<PAGE>39
provided that if any CD Loan or any portion thereof shall,
as a result of clauses (2)(b)(i) or (2)(c) of the definition
of Interest Period, have an Interest Period of less than 30
days, such CD Loan or portion thereof shall bear interest
for each day during such Interest Period at a rate per annum
equal to the Base Rate for such day plus the Base Rate
Margin. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period
is longer than 90 days, 90 days after the first day thereof.
Any overdue principal of and overdue interest on any CD Loan
shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 1% plus the
higher of (i) the sum of the CD Margin plus the Adjusted CD
Rate applicable to such Loan and (ii) the Base Rate for such
day plus the Base Rate Margin.
"CD Margin" means a rate per annum equal to (i)
.5625% for any day on which Level I Status exists, (ii)
.6875% for any day on which Level II Status exists, (iii)
.9375% for any day on which Level III Status exists, and
(iv) 1.3125% for any day on which Level IV Status exists.
The "Adjusted CD Rate" applicable to any Interest
Period means a rate per annum determined pursuant to the
following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upward, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest
Period is the rate of interest determined by the Agent to be
the arithmetic average (rounded upward, if necessary, to the
next higher 1/100 of 1%) of the prevailing rates per annum
bid at 10:00 A.M. (New York City time) (or as soon there-
after as practicable) on the first day of such Interest
Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face
value from each CD Reference Bank of its certificates of <PAGE>
<PAGE>40
deposit in an amount comparable to the unpaid principal
amount of the CD Loan of such CD Reference Bank to which
such Interest Period applies and having a maturity
comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including without limita-
tion any basic, supplemental or emergency reserves) for a
member bank of the Federal Reserve System in New York City
with deposits exceeding five billion dollars in respect of
new non-personal time deposits in dollars in New York City
having a maturity comparable to the related Interest Period
and in an amount of $100,000 or more. The Adjusted CD Rate
shall be adjusted automatically on and as of the effective
date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual
assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within
the meaning of 12 C.F.R. section 327.3(d) (or any successor
provision) to the Federal Deposit Insurance Corporation (or
any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change
in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on
the outstanding principal amount thereof, for each day
during the Interest Period applicable thereto, at a rate per
annum equal to the sum of the Euro-Dollar Margin for such
day plus the applicable Adjusted London Interbank Offered
Rate. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period
is longer than three months, three months after the first
day thereof.
"Euro-Dollar Margin" means a rate per annum equal
to (i) .4375% for any day on which Level I Status exists,
(ii) .5625% for any day on which Level II Status exists,
(iii) .8125% for any day on which Level III Status exists,
and (iv) 1.1875% for any day on which Level IV Status
exists.
The "Adjusted London Interbank Offered Rate"
applicable to any Interest Period means a rate per annum <PAGE>
<PAGE>41
equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (i)
the applicable London Interbank Offered Rate by (ii) 1.00
minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to
any Interest Period means the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective
rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London
interbank market at approximately 11:00 A.M. (London time)
two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar
Reference Bank to which such Interest Period is to apply and
for a period of time comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining
the maximum reserve requirement for a member bank of the
Federal Reserve System in New York City with deposits
exceeding five billion dollars in respect of "Eurocurrency
liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which
the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which
includes loans by a non-United States office of any Bank to
United States residents). The Adjusted London Interbank
Offered Rate shall be adjusted automatically on and as of
the effective date of any change in the Euro-Dollar Reserve
Percentage.
(d) Any overdue principal of and overdue interest
on any Euro-Dollar Loan shall bear interest, payable on
demand, for each day from and including the date payment
thereof was due to but excluding the date of actual payment,
at a rate per annum equal to the sum of 1% plus the
Euro-Dollar Margin plus the higher of (i) the Adjusted
London Interbank Offered Rate applicable to such Loan and
(ii) the quotient obtained (rounded upward, if necessary, to
the next higher 1/100 of 1%) by dividing (x) the average
(rounded upward, if necessary, to the next higher 1/16 of
1%) of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than three
Euro-Dollar Business Days, then for such other period of
time not longer than three months as the Agent may select)
deposits in dollars in an amount approximately equal to such
overdue payment due to each of the Euro-Dollar Reference
Banks are offered to such Euro-Dollar Reference Bank in the <PAGE>
<PAGE>42
London interbank market for the applicable period determined
as provided above by (y) 1.00 minus the Euro-Dollar Reserve
Percentage (or, if the circumstances described in clause (a)
or (b) of Section 8.01 shall exist, at a rate per annum
equal to the sum of 1% plus the Base Rate for such day plus
the Base Rate Margin).
(e) Subject to Section 8.01(a), each Money Market
LIBOR Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto,
at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in
accordance with Section 2.07(c) as if the related Money
Market LIBOR Borrowing were a Committed Euro-Dollar
Borrowing) plus (or minus) the Money Market Margin quoted by
the Bank making such Loan in accordance with Section 2.03.
Each Money Market Absolute Rate Loan shall bear interest on
the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the
Money Market Absolute Rate quoted by the Bank making such
Loan in accordance with Section 2.03. Such interest shall
be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof. Any
overdue principal of and overdue interest on any Money
Market Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 1%
plus the Base Rate for such day.
(f) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall give
prompt notice to the Borrower and the participating Banks of
each rate of interest so determined, and its determination
thereof shall be conclusive in the absence of manifest
error.
(g) Each Reference Bank agrees to use its best
efforts to furnish quotations to the Agent as contemplated
by this Section. If any Reference Bank does not furnish a
timely quotation, the Agent shall determine the relevant
interest rate on the basis of the quotation or quotations
furnished by the remaining Reference Bank or Banks or, if
none of such quotations is available on a timely basis, the
provisions of Section 8.01 shall apply.
SECTION 2.08. Fees.
(a) Commitment Fee. The Borrower shall pay to
the Agent, for the account of the Banks, ratably in
accordance with their respective Percentages, a commitment
fee at a rate per annum equal to: (i) .0625% for any day on
<PAGE>
<PAGE>43
which Level I Status exists, (ii) 0% for any day on which
Level II Status exists, (iii) .125% for any day on which
Level III Status exists, and (iv) .25% for any day on which
Level IV Status exists. Such commitment fee shall accrue
from and including the Effective Date to but excluding the
Termination Date (or earlier date of termination of the
Commitments in their entirety) on the daily average amount
by which the aggregate amount of the Commitments exceeds the
Aggregate Usage.
(b) Facility Fee. The Borrower shall pay to the
Agent, for the account of the Banks, ratably in accordance
with their respective Percentages, a facility fee at a rate
per annum equal to: (i) .1875% for any day on which Level I
Status exists and (ii) .25% for any day on which Level II
Status, Level III Status or Level IV Status exists. Such
facility fee shall accrue (i) from and including the
Effective Date to but excluding the Termination Date (or
earlier date of termination of the Commitments in their
entirety), on the daily average aggregate amount of the
Commitments (whether used or unused) and (ii) if any
Committed Loans or LC Liabilities remain outstanding after
the Commitments terminate in their entirety, then from and
including the date on which the Commitments terminate in
their entirety to but excluding the first day thereafter on
which no Committed Loans or LC Liabilities remain
outstanding, on the daily average aggregate outstanding
amount of the Committed Loans and the LC Liabilities.
(c) Participation Fees. The Borrower shall pay
to the Agent on the Effective Date:
(i) for the account of each Bank that initially
committed to lend $50,000,000 or more (without regard
to the amount accepted by the Borrower as such Bank's
Commitment), a participation fee in an amount equal to
.1875% of its Commitment;
(ii) for the account of each Bank that initially
committed to lend at least $40,000,000 but less than
$50,000,000 (without regard to the amount accepted by
the Borrower as such Bank's Commitment), a participa-
tion fee in an amount equal to .15% of its Commitment;
(iii) for the account of each Bank that initially
committed to lend at least $30,000,000 but less than
$40,000,000 (without regard to the amount accepted by
the Borrower as such Bank's Commitment), a participa-
tion fee in an amount equal to .125% of its Commitment;
and
<PAGE>
<PAGE>44
(iv) for the account of each Bank that initially
committed to lend at least $20,000,000 but less than
$30,000,000 (without regard to the amount accepted by
the Borrower as such Bank's Commitment), a participa-
tion fee in an amount equal to .10% of its Commitment.
On or before the Effective Date, the Agent shall deliver to
the Borrower a certificate setting forth the amount that
each Bank initially committed to lend, which certificate
shall be conclusive in the absence of manifest error.
(d) Payments. Fees accrued under subsections (a)
and (b) above shall be payable quarterly on December 31,
1993 and on each March 31, June 30, September 30 and
December 31 thereafter or, if earlier, the date of
termination of the Commitments in their entirety (and, if
later, the first day thereafter on which no Committed Loans
or LC Liabilities remain outstanding).
SECTION 2.09. Reduction of Commitments. (a) The
Borrower may, upon at least three Domestic Business Days'
notice to the Agent, (i) terminate the Commitments at any
time, if no Loans or LC Liabilities are outstanding at such
time, or (ii) ratably reduce from time to time, by an
aggregate amount of $10,000,000 or any larger integral
multiple of $1,000,000, the aggregate amount of the
Commitments in excess of the Aggregate Usage.
(b) On each Commitment Reduction Date, the
Commitments shall be ratably reduced to the extent (if any)
required so that the aggregate amount of the Commitments
immediately after such reduction will not exceed the
"Maximum Aggregate Commitment" set forth below opposite such
Commitment Reduction Date:
Commitment Reduction Date Maximum Aggregate Commitment
December 31, 1994 $450,000,000
December 31, 1995 $400,000,000
December 31, 1996 $350,000,000
December 31, 1997 $300,000,000
(c) If the Borrower receives any Net Cash
Proceeds of Asset Sales or a Spring Creek Prepayment or
elects to designate a dividend or other amount received from
PFS as an Excess PFS Payment:
(i) the aggregate amount of the Commitments shall
be reduced by an amount equal to (A) 75% of such Net
Cash Proceeds of Asset Sales, Spring Creek Prepayment
or Excess PFS Payment until Total Senior Secured <PAGE>
<PAGE>45
Obligations are reduced to $300,000,000 and (B) 50% of
such Net Cash Proceeds of Asset Sales, Spring Creek
Prepayment or Excess PFS Payment thereafter; provided
that, if Total Senior Secured Obligations subsequently
exceed $300,000,000 at any time, the aggregate amount
of the Commitments shall be further reduced to the
extent required to reduce such aggregate amount to the
level to which it would have been reduced pursuant to
the provisions hereof if Total Senior Secured
Obligations had not previously fallen below
$300,000,000;
(ii) each reduction of the aggregate amount of the
Commitments pursuant to this subsection (c) shall be
effective three Euro-Dollar Business Days after the
event requiring such reduction occurs and shall be
applied ratably to the respective Commitments of the
Banks; and
(iii) the Borrower shall give the Agent at least
two Euro-Dollar Business Days' notice of each reduction
of the aggregate Commitments pursuant to this
subsection (c) and a certificate of a Responsible
Officer setting forth the information necessary to
determine the amount of such reduction.
(d) On each Commitment Reduction Date or other
date on which the aggregate amount of the Commitments is
reduced pursuant to this Section, the Borrower shall repay
such principal amount of each Bank's outstanding Loans as
may be necessary so that after such repayment, (i) the
Aggregate Usage does not exceed the aggregate amount of the
Commitments as then reduced and (ii) the sum of (a) the
unpaid principal amount of the Committed Loans of each Bank
and (b) such Bank's Outstanding LC Exposure does not exceed
the amount of its Commitment as then reduced. The
particular Borrowings to be repaid shall be designated by
the Borrower at the time of such reduction; provided that
(i) all Committed Borrowings maturing on the date of such
reduction shall be repaid before any Fixed Rate Borrowing
maturing after such date is repaid pursuant to this
subsection (d) and (ii) if any Fixed Rate Borrowing maturing
after such date is to be repaid pursuant to this subsection
(d), such repayment shall be deferred to the last day of the
Interest Period applicable thereto, unless the Required
Banks (or, in the case of a Money Market Loan, either the
relevant lending Bank or the Required Banks) otherwise elect
by notice to the Borrower through the Agent. If any
repayment required by this subsection (d) is deferred, the
facility fee provided for in Section 2.08(b) shall continue
to accrue on the amount of such deferred payment until such <PAGE>
<PAGE>46
payment is made. Each repayment or prepayment pursuant to
this subsection (d) shall be made together with interest
accrued on the amount repaid to the date of repayment, and
shall be applied ratably to pay the Loans of the several
Banks included in the related Borrowing.
SECTION 2.10. Mandatory Termination of
Commitments. The Commitments shall terminate on the
Termination Date, and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on
such date.
SECTION 2.11. Optional Prepayments. (a) The
Borrower may, upon at least one Domestic Business Day's
notice to the Agent, prepay any Base Rate Borrowing (or any
Money Market Borrowing bearing interest at the Base Rate
pursuant to Section 8.01(a)) in whole at any time, or from
time to time in part in amounts aggregating $5,000,000 or
any larger integral multiple of $1,000,000, by paying the
principal amount to be prepaid together with interest
accrued thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the
Loans of the several Banks included in such Borrowing.
(b) Subject to the provisions of Section 2.13,
the Borrower may, upon at least three Domestic Business
Days' notice to the Agent, in the case of CD Loans or Money
Market Loans, and three Euro-Dollar Business Days' notice to
the Agent, in the case of Euro-Dollar Loans, prepay any
Fixed Rate Borrowing in whole at any time by paying the
principal amount to be prepaid together with interest
accrued thereon to the date of prepayment.
(c) Upon receipt of a notice of prepayment
pursuant to this Section, the Agent shall promptly notify
each Bank of the contents thereof and of such Bank's ratable
share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.12. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of,
and interest on, the Loans and of fees hereunder, not later
than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York
City, to the Agent at its address referred to in Section
9.01. The Agent will promptly distribute to each Bank its
ratable share (if any) of each such payment received by the
Agent for the account of the Banks. Whenever any payment of
principal of, or interest on, the Domestic Loans or of fees
shall be due on a day which is not a Domestic Business Day,
the date for payment thereof shall be extended to the next <PAGE>
<PAGE>47
succeeding Domestic Business Day. Whenever any payment of
principal of, or interest on, the Euro-Dollar Loans shall be
due on a day which is not a Euro-Dollar Business Day, the
date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case
the date for payment thereof shall be the next preceding
Euro-Dollar Business Day. Whenever any payment of principal
of, or interest on, the Money Market Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day. If the date for any payment of
principal is extended in accordance with this Section 2.12,
by operation of law or otherwise, interest thereon shall be
payable for such extended time.
(b) Unless the Agent shall have received notice
from the Borrower prior to the date on which any payment is
due to the Banks hereunder that the Borrower will not make
such payment in full, the Agent may assume that the Borrower
has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to
the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each Bank
shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for
each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If the Borrower
makes any payment of principal with respect to any Fixed
Rate Loan (pursuant to Section 2.09(d) or 2.11(b) or Article
VI or VIII or otherwise) on any day other than the last day
of the Interest Period applicable thereto, or the last day
of an applicable period fixed pursuant to Section 2.07(d),
or if the Borrower fails to borrow any Fixed Rate Loans
after notice has been given to any Bank in accordance with
Section 2.04(a), the Borrower shall reimburse each Bank
within 15 days after demand for any resulting loss or
expense incurred by it (or by an existing or prospective
Participant in the related Loan), including (without
limitation) any loss incurred in obtaining, liquidating or
employing deposits from third parties, but excluding loss of
margin for the period after any such payment or failure to
borrow, provided that such Bank shall have delivered to the
Borrower a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the
absence of manifest error.
<PAGE>
<PAGE>48
SECTION 2.14. Computation of Interest and Fees.
Interest based on the Prime Rate hereunder shall be computed
on the basis of a year of 365 days (or 366 days in a leap
year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All
other interest and all letter of credit fees, commitment
fees and facility fees shall be computed on the basis of a
year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last
day).
SECTION 2.15. Letters of Credit. (a) Any Bank
listed on the signature pages hereof may (but shall not be
obligated to) issue a letter of credit at the Borrower's
request and for its account pursuant to this Section 2.15;
provided that:
(i) such Bank is satisfied with the form and
substance of such letter of credit, the fronting fee to
be paid to it by the Borrower in connection therewith
and any related documentation to be signed or provided
by the Borrower in connection therewith;
(ii) such letter of credit shall comply with the
provisions of subsection (d) of this Section;
(iii) at least three Domestic Business Days before
the proposed date of issuance (or thereafter if such
delayed notice is acceptable to the Agent), the
Borrower shall give the Agent notice specifying the
proposed date of issuance and the expiry date of such
letter of credit, the face amount thereof, the nature
of the transaction to be supported thereby and the name
of the proposed issuing Bank;
(iv) immediately after such letter of credit is
issued, the aggregate outstanding amount of the LC
Liabilities shall not exceed $100,000,000;
(v) the Borrower shall have advised the proposed
issuing Bank on the date of issuance of such letter of
credit that the applicable conditions to issuance set
forth in Section 3.01 hereof (including, without
limitation, Section 3.01(b)) and in clause (iv) of this
subsection are satisfied and the Agent shall have
advised the proposed issuing Bank on such date that the
Agent has not determined that any of such conditions
are not satisfied; and
(vi) such issuing Bank or the Borrower shall have
notified the Agent of the issuance of such letter of
credit and the face amount thereof on or before the
date of issuance thereof (or thereafter if such delayed
<PAGE>
<PAGE>49
notice is acceptable to the Agent and does not result
in a violation of Section 3.01(b) or subsection (a)(iv)
or (e)(ii) of this Section in connection with any other
Credit Extension).
For all purposes of this Agreement, each letter of credit
issued in compliance with the foregoing provisions of this
subsection (a) shall constitute a "Letter of Credit" and the
Bank issuing such Letter of Credit, in its capacity as the
issuer thereof (together with its successors in such
capacity), shall constitute an "LC Issuing Bank".
(b) Upon the issuance of a Letter of Credit in
accordance with subsection (a) of this Section, the LC
Issuing Bank shall be deemed, without further action by any
party hereto, to have sold to each Bank, and each Bank shall
be deemed, without further action by any party hereto, to
have purchased from the LC Issuing Bank, a participation in
such Letter of Credit and the related LC Liabilities in
proportion to its Percentage.
(c) Promptly upon receiving notice pursuant to
clause (vi) of subsection (a) of the issuance of a Letter of
Credit, the Agent shall notify each Bank of the contents of
such notice and such Bank's participation in such Letter of
Credit.
(d) No Letter of Credit shall have an initial
expiry date later than the earlier of (i) the fifth Domestic
Business Day prior to the Termination Date and (ii) the day
which is one year after the date of issuance thereof. Each
Letter of Credit shall be terminable upon notice given by
the LC Issuing Bank to the beneficiary thereof (an "LC
Termination Notice") at the direction of the Agent in
accordance with Section 6.01 and shall contain express
language to the foregoing effect setting forth the minimum
number of days' notice required for any such termination
(which minimum number of days shall be specified by the
Borrower but shall not exceed 60 days).
(e) The Borrower may request an LC Issuing Bank
to extend the expiry date of an outstanding Letter of Credit
from time to time; provided that the extended expiry date
thereof shall not be later than the earlier of (i) the fifth
Domestic Business Day prior to the Termination Date and (ii)
the day which is 14 months after the date (the "Extension
Date") on which the LC Issuing Bank extends or becomes
legally committed to extend such expiry date. No extension
of a Letter of Credit shall be effective to extend the
obligations of the Banks to the LC Issuing Bank hereunder
unless:
<PAGE>
<PAGE>50
(i) the Borrower or the LC Issuing Bank shall
give the Agent at least three Domestic Business Days'
notice specifying the proposed Extension Date and the
proposed new expiry date of such Letter of Credit;
(ii) immediately after such Letter of Credit is
extended, the aggregate outstanding amount of the LC
Liabilities shall not exceed $100,000,000;
(iii) the Borrower shall have advised the LC
Issuing Bank on the Extension Date of such Letter of
Credit that the applicable conditions to extension set
forth in Section 3.01 hereof (including, without
limitation, Section 3.01(b)) and in clause (ii) of this
subsection are satisfied and the Agent shall have
advised the LC Issuing Bank on such date that the Agent
has not determined that any of such conditions are not
satisfied; and
(iv) the LC Issuing Bank or the Borrower shall
have notified the Agent of the extension of such Letter
of Credit on or before the Extension Date (or
thereafter if such delayed notice is acceptable to the
Agent and does not result in a violation of Section
3.01(b) or subsection (a)(iv) or (e)(ii) of this
Section in connection with any other Credit Extension).
(f) Each LC Issuing Bank shall notify the Agent
and the Borrower promptly of any reduction in the
outstanding undrawn amount of each Letter of Credit issued
by it and any termination thereof. The Agent may rely on
such notices (or the absence of any such notice) in
calculating the Aggregate Usage and the aggregate
outstanding amount of the LC Liabilities from time to time.
Promptly upon receiving notice pursuant to clause (iv) of
subsection (e) of the extension of a Letter of Credit, the
Agent shall notify each Bank of the contents of such notice.
(g) The Borrower shall pay to the Agent, for the
account of the Banks ratably in accordance with their
respective Percentages, a letter of credit fee at the LC Fee
Rate on the aggregate amount available for drawings under
each Letter of Credit outstanding from time to time. Such
fee shall be payable in arrears on the last day of each
Fiscal Quarter for so long as the relevant Letter of Credit
is outstanding and on the expiry date thereof. The Borrower
shall pay to each LC Issuing Bank additional fronting fees
and expenses in the amounts and at the times agreed between
the Borrower and such LC Issuing Bank. Each LC Issuing Bank
shall furnish to the Agent upon request such information as
the Agent shall require in order to calculate the amount of <PAGE>
<PAGE>51
any fee payable for the account of the Banks under this
subsection (g).
"LC Fee Rate" means a rate per annum equal to (i)
.4375% for any day on which Level I Status exists, (ii)
.5625% for any day on which Level II Status exists, (iii)
.8125% for any day on which Level III Status exists, and
(iv) 1.1875% for any day on which Level IV Status exists.
(h) Upon receipt from the beneficiary of any
Letter of Credit of any demand for payment under such Letter
of Credit, the relevant LC Issuing Bank shall notify the
Agent and the Agent shall promptly notify the Borrower and
each other Bank as to the amount to be paid by such LC
Issuing Bank as a result of such demand and the proposed
payment date (an "LC Payment Date"). The responsibility of
such LC Issuing Bank to the Borrower and each Bank shall be
only to determine that the documents (including each demand
for payment) delivered in connection with such demand
conform in all material respects with the requirements of
such Letter of Credit. Each LC Issuing Bank shall endeavor
to exercise the same care in the issuance and administration
of the Letters of Credit issued by it as it does with
respect to letters of credit in which no participations are
granted, it being understood that in the absence of gross
negligence or willful misconduct by an LC Issuing Bank, each
Bank shall be unconditionally and irrevocably liable,
without regard to the occurrence of any Event of Default or
any condition precedent whatsoever, to reimburse such LC
Issuing Bank on demand for (i) such Bank's Percentage of the
amount of each payment made by such LC Issuing Bank under
each Letter of Credit issued by it, to the extent such
amount is not reimbursed by the Borrower pursuant to
subsection (i) below, plus (ii) interest on the foregoing
amount to be reimbursed by such Bank, for each day from the
date of such LC Issuing Bank's demand for such reimbursement
(or, if such demand is made after 11:00 A.M. (New York City
time) on such date, from the next succeeding Domestic
Business Day) to the date on which such Bank pays the amount
to be reimbursed by it, at a rate of interest per annum
equal to the Federal Funds Rate for such day.
(i) The Borrower shall be irrevocably and
unconditionally obligated to reimburse each LC Issuing Bank
on or before the applicable LC Reimbursement Date for all
amounts paid by such LC Issuing Bank upon any drawing under
any Letter of Credit issued by it, without presentment,
demand, protest or other formalities of any kind; provided
that neither the Borrower nor any Bank shall hereby be
precluded from asserting any claim for direct (but not
consequential) damages suffered by the Borrower or such Bank
<PAGE>
<PAGE>52
to the extent, but only to the extent, caused by (i) the
willful misconduct or gross negligence of such LC Issuing
Bank in determining whether a request presented under any
such Letter of Credit complied with the terms of such Letter
of Credit or (ii) such LC Issuing Bank's failure to pay
under any Letter of Credit issued by it after the
presentation to it of a request strictly complying with the
terms and conditions of such Letter of Credit. All such
amounts paid by an LC Issuing Bank and remaining unpaid by
the Borrower shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to (x) the
rate applicable to Base Rate Loans for such day if such day
falls before the applicable LC Reimbursement Date and (y)
the sum of 1% plus the rate applicable to Base Rate Loans
for such day if such day falls on or after such LC
Reimbursement Date. Each LC Issuing Bank will pay to each
Bank ratably in accordance with its Percentage all amounts
received from the Borrower for application in payment, in
whole or in part, of the Reimbursement Obligation in respect
of any Letter of Credit issued by it, but only to the extent
that such Bank has made payment to such LC Issuing Bank in
respect of such Letter of Credit pursuant to subsection (h)
of this Section.
(j) If, after the date of this Agreement, any
Change in Law shall impose, modify or deem applicable any
reserve, special deposit or similar requirement against or
with respect to or measured by reference to Letters of
Credit issued or to be issued hereunder or participations
therein, and the result shall be to increase the cost to any
Bank or LC Issuing Bank of issuing or maintaining any Letter
of Credit or any participation therein, or reduce any amount
receivable by any Bank or LC Issuing Bank hereunder in
respect of any Letter of Credit (which increase in cost, or
reduction in amount receivable, shall be the result of such
Bank's or LC Issuing Bank's reasonable allocation of the
aggregate of such increases or reductions resulting from
such event), then, upon demand by such Bank or LC Issuing
Bank, the Borrower agrees to pay to such Bank or LC Issuing
Bank, from time to time as specified by such Bank or LC
Issuing Bank, such additional amounts as shall be sufficient
to compensate such Bank or LC Issuing Bank for such
increased costs or reductions in amount incurred by such
Bank or LC Issuing Bank; provided that the Borrower's
obligation to pay such Bank or LC Issuing Bank shall be
limited to the cost or reduction that is attributable to the
period commencing 90 days prior to the date on which such
Bank or LC Issuing Bank notifies the Borrower of the event
entitling such Bank or LC Issuing Bank to such compensation.
A certificate of such Bank or LC Issuing Bank submitted by
such Bank or LC Issuing Bank to the Borrower shall be <PAGE>
<PAGE>53
conclusive as to the amount thereof in the absence of
manifest error.
(k) The Borrower's obligations under this
Section 2.15 shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower may
have or have had against any LC Issuing Bank, any Bank or
any beneficiary of a Letter of Credit. Without limiting the
generality of the foregoing, the Borrower further agrees
that the LC Issuing Banks and the Banks shall not be
responsible for, and the Borrower's Reimbursement Obligation
in respect of any Letter of Credit shall not be affected by,
the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact
prove to be in any or all respects invalid, fraudulent or
forged, or any dispute between or among the Borrower, any of
its Subsidiaries, 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 any of its Subsidiaries
against the beneficiary of any Letter of Credit or any such
transferee. No LC Issuing Bank, if acting in good faith and
without gross negligence, shall be liable for 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 issued by it. The
Borrower agrees that any action taken or omitted by any Bank
or LC Issuing Bank under or in connection with any Letter of
Credit and the related drafts and documents, if done in good
faith and without gross negligence, shall be binding upon
the Borrower and shall not put such Bank or LC Issuing Bank
under any liability to the Borrower.
(l) To the extent not inconsistent with
subsection (k) above, each LC Issuing Bank shall be entitled
to rely, and shall be fully protected in relying upon, any
Letter of Credit, draft, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement,
order or other document believed by it to be genuine and
correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal
counsel, independent accountants and other experts selected
by such LC Issuing Bank. Each LC Issuing Bank shall be
fully justified in failing or refusing to take any action
under this Agreement unless it shall first have received
such advice or concurrence of the Required Banks as it
reasonably deems appropriate or it shall first be
indemnified to its reasonable satisfaction by the Banks
against any and all liability and expense which may be <PAGE>
<PAGE>54
incurred by it by reason of taking or continuing to take any
such action. Notwithstanding any other provision of this
Section 2.15, each LC Issuing Bank shall in all cases be
fully protected in acting, or in refraining from acting,
under this Agreement in accordance with a request of the
Required Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding upon the
Banks and all future holders of participations in any Letter
of Credit issued by such LC Issuing Bank.
(m) The Borrower agrees to indemnify and hold
harmless each Bank, the relevant LC Issuing Bank and the
Agent, and their respective directors, officers, agents and
employees (the "LC Indemnitees") from and against any and
all claims and damages, losses, liabilities, costs or
expenses which such LC Indemnitee may incur (or which may be
claimed against such LC Indemnitee by any Person whatsoever)
by reason of or in connection with the execution and
delivery or transfer of or payment or failure to pay under
any Letter of Credit or any actual or proposed use of any
Letter of Credit, including, without limitation, any claims,
damages, losses, liabilities, costs or expenses which the
relevant LC Issuing Bank may incur by reason of or in
connection with the failure of any other Bank to fulfill or
comply with its obligations to such LC Issuing Bank
hereunder (but nothing herein contained shall affect any
rights the Borrower may have against any defaulting Bank);
provided that the Borrower shall not be required to
indemnify any LC Indemnitee for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to
the extent, caused by (i) the willful misconduct or gross
negligence of such LC Issuing Bank in determining whether a
request presented under such Letter of Credit complied with
the terms of such Letter of Credit or (ii) such LC Issuing
Bank's failure to pay under such Letter of Credit after the
presentation to it of a request strictly complying with the
terms and conditions of such Letter of Credit. Nothing in
this subsection (m) is intended to limit the obligations of
the Borrower under any other provision of this Agreement.
(n) If any proceeding shall be brought or, to the
knowledge of any LC Indemnitee threatened, against such LC
Indemnitee by reason of or in connection with which such LC
Indemnitee may claim indemnification pursuant to subsection
(m) of this Section, such LC Indemnitee shall promptly
notify the Borrower thereof in writing. Such LC Indemnitee
shall have the right to employ its own counsel and to deter-
mine its own defense in such proceeding, but the reasonable
fees and expenses thereof (including allocated costs of
internal counsel and disbursements of internal counsel)
shall be paid by the Borrower. The Borrower shall not be <PAGE>
<PAGE>55
liable for any settlement of any such proceeding effected
without its consent, which consent shall not be unreasonably
withheld. Nothing in this subsection (n) is intended to
limit the obligations of the Borrower under any provision of
this Agreement other than subsection (m) of this Section.
(o) Each Bank shall, ratably in accordance with
its Percentage, indemnify each LC Issuing Bank and its
directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense
(including reasonable counsel fees and disbursements,
including allocated costs of internal counsel and disburse-
ments of internal counsel), claim, demand, action, loss or
liability (except such as result from such indemnitees'
gross negligence or willful misconduct or such LC Issuing
Bank's failure to pay under any Letter of Credit after the
presentation to it of a request strictly complying with the
terms and conditions of such Letter of Credit) that such
indemnitees may suffer or incur in connection with this
Section 2.15 or any action taken or omitted by such
indemnitees hereunder.
(p) In its capacity as a Bank, each LC Issuing
Bank shall have the same rights and obligations as any other
Bank.
SECTION 2.16. Releases of Collateral. (a) The
Borrower shall not cause the Collateral Agent to release any
assets (except Excluded Cash Distributions) from the
Security Interests pursuant to Section 16 of the Security
Agreement (or otherwise cause any assets (except Excluded
Cash Distributions) to be so released) unless, at the time
of such release, (i) no Default shall have occurred and be
continuing and (ii) the Borrower is entitled to obtain such
release pursuant to one of the following clauses:
(1) with the prior written consent of all the
Banks, the Borrower may at any time cause the
Collateral Agent to release from the Security Interests
any or all of the assets included in the Collateral;
(2) if Level I Status exists, the Borrower may
cause the Collateral Agent to release from the Security
Interests any or all of the assets included in the
Collateral, with the prior written consent of the
Required Banks;
(3) if the Borrower proposes to sell specified
assets included in the Collateral for a consideration
consisting entirely of cash and such sale would not
contravene Section 5.11, the Borrower may cause the <PAGE>
<PAGE>56
Collateral Agent to release such specified assets from
the Security Interests; provided that the cash proceeds
of such sale are (i) applied to prepay the Loans to the
extent, if any, required to comply with Section
2.09(d), (ii) applied to prepay other Secured
Obligations to the extent, if any, that the legal
opinion delivered to the Collateral Agent pursuant to
Section 16(A)(iii) of the Security Agreement assumes or
is otherwise premised on such proceeds being applied to
prepay such Secured Obligations and (iii) to the extent
required to be applied pursuant to the foregoing
clauses (i) and (ii), paid to the Collateral Agent
substantially concurrently with such release and held
by it as security for the relevant Secured Obligations
until applied to the payment thereof; and
(4) if the Borrower proposes to sell any or all
of the Pledged Stock of PGC for a consideration that
does not consist entirely of cash, the Borrower may
cause the Collateral Agent to release such Pledged
Stock from the Security Interests; provided that (i)
the cash portion of such consideration, if any, is
applied (and held by the Collateral Agent until so
applied) as provided in clause (3) of this subsection
(a) and (ii) the non-cash portion of such consideration
is added to the Collateral under the Security Agreement
by documentation in form and substance satisfactory to
the Agent accompanied by an Opinion of Counsel (as
defined in the Security Agreement) in form and
substance satisfactory to the Agent with respect to the
creation, validity and perfection of the Security
Interests therein and such additional matters relating
thereto as the Agent may reasonably request.
(b) Even if a proposed release of assets from the
Security Interests is permitted by this Section 2.16 and
does not contravene Section 5.11, the Borrower's right to
obtain such release shall be subject to the provisions of
Section 16 of the Security Agreement, including without
limitation the provisions thereof permitting Secured Parties
to prevent such a release by giving timely notice to the
Collateral Agent as provided therein.
(c) If, subsequent to any release of assets from
the Security Interests pursuant to subsection (a)(2) above,
Level I Status ceases to exist, the Borrower shall, within
10 Domestic Business Days after Level I Status ceases to
exist, take all action necessary (or reasonably requested by
the Collateral Agent) to grant security interests in the
assets so released to the Collateral Agent under the
Security Agreement and to perfect such security interests; <PAGE>
<PAGE>57
provided that this subsection (c) shall not apply to assets
that the Borrower has sold or become legally obligated to
sell before Level I Status ceased to exist (as to which the
Borrower shall comply with the applicable provisions of
Section 2.09).
(d) If any or all of the assets included in the
Collateral are released pursuant to subsection (a)(2) above,
the Borrower will not voluntarily create any Lien on such
assets or agree to any restriction on its ability to grant
security interests in such assets to the Collateral Agent
again, if and when required to do so by subsection (c)
above.
ARTICLE III
CONDITIONS
SECTION 3.01. Credit Extensions. The obligation
of each Bank to make a Loan on the occasion of each
Borrowing and the issuance or extension of a Letter of
Credit on the occasion of a request therefor by the Borrower
are each subject to the satisfaction of the following
conditions:
(a) receipt by the Agent of notice of such
Borrowing as required by Section 2.02 or 2.03 or
notices with respect to the issuance or extension of
such Letter of Credit as required by Section 2.15(a) or
(e), as the case may be;
(b) the fact that, immediately after giving
effect to such Credit Extension, (i) the Aggregate
Usage will not exceed the aggregate amount of the
Commitments and (ii) the Projected Aggregate Usage on
each subsequent Commitment Reduction Date will not
exceed the aggregate amount of the Commitments
scheduled to remain in effect immediately after such
Commitment Reduction Date;
(c) the fact that, immediately before and after
such Credit Extension: (i) in the case of a Refunding
Borrowing or an extension of an outstanding Letter of
Credit, no Event of Default and no Default under
Section 6.01(a) and (ii) in the case of any other
Credit Extension, no Default shall have occurred and be
continuing;
<PAGE>
<PAGE>58
(d) the fact that the representations and
warranties of the Borrower contained in this Agreement
and the Security Agreement (except (i) in the case of a
Refunding Borrowing or the extension of an outstanding
Letter of Credit, the representations and warranties
set forth in Sections 4.04(e), 4.05 and 4.06 and (ii)
in the case of all Credit Extensions after the
Effective Date, the representations and warranties set
forth in Sections 4.11(b) and 4.12(a) hereof and
Section 2(D) of the Security Agreement) shall be true
on and as of the date of such Credit Extension; and
(e) the fact that no Notice to Foreclose has been
given to the Collateral Agent under the Security
Agreement and remains in effect.
Each Credit Extension hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of
such Credit Extension as to the facts specified in clauses
(b), (c), (d) and (e) of this Section.
SECTION 3.02. Conditions to Effectiveness. This
Agreement shall become effective and binding upon the
parties hereto on the date on which each of the following
conditions shall have been satisfied (or waived in
accordance with Section 9.05):
(a) receipt by the Agent of counterparts of this
Agreement signed by each of the parties listed on the
signature pages hereof (or, in the case of any such
party as to which an executed counterpart shall not
have been received, receipt by the Agent in form
satisfactory to it of facsimile or other written
confirmation from such party of its execution of a
counterpart of this Agreement);
(b) receipt by the Agent of a duly executed Note
for the account of each Bank dated on or before the
Effective Date complying with the provisions of Section
2.05;
(c) receipt by the Agent of counterparts of the
Security Agreement and the PCI Agreement duly executed
and delivered by each of the parties thereto and duly
executed UCC-1 financing statements with respect to the
general intangibles included in the Collateral;
(d) receipt by the Collateral Agent of the
certificates representing the Original Pledged Stock
delivered in accordance with the Security Agreement and
<PAGE>
<PAGE>59
the Spring Creek Note delivered in accordance with the
PCI Agreement;
(e) receipt by the Agent of evidence satisfactory
to it that each holder of Secured Obligations whose
consent is required to permit the Borrower to grant
security interests in the Collateral under the Security
Agreement has (i) consented thereto and (ii) agreed to
be bound by the provisions of the Security Agreement;
(f) receipt by the Agent of counterparts of all
Secured Agreements (as such term is defined in the
Security Agreement) referred to in Schedule I to the
Security Agreement;
(g) the "Commitments" (as defined in the Existing
PHI Credit Agreement) shall have been terminated and
all loans outstanding under the Existing PHI Credit
Agreement, all interest accrued thereon and all other
amounts due and payable under the Existing PHI Credit
Agreement shall have been paid in full, or arrangements
satisfactory to the Agent for payment thereof on the
Effective Date shall have been made;
(h) the "Commitments" (as defined in the Existing
PFS Credit Agreement) shall have been terminated and
all loans outstanding under the Existing PFS Credit
Agreement, all interest accrued thereon and all other
amounts due and payable under the Existing PFS Credit
Agreement shall have been paid in full, or arrangements
satisfactory to the Agent for payment thereof on the
Effective Date shall have been made;
(i) receipt by the Agent of an opinion dated the
Effective Date of Stoel Rives Boley Jones & Grey,
counsel for the Borrower, substantially in the form of
Exhibit F hereto and covering such additional matters
relating to the transactions contemplated hereby as the
Required Banks may reasonably request;
(j) receipt by the Agent of an opinion dated the
Effective Date of Winthrop, Stimson, Putnam & Roberts,
special New York counsel for the Borrower, substan-
tially in the form of Exhibit G hereto and covering
such additional matters relating to the transactions
contemplated hereby as the Required Banks may
reasonably request;
(k) receipt by the Agent of an opinion dated the
Effective Date of Davis Polk & Wardwell, special
counsel for the Agent, substantially in the form of <PAGE>
<PAGE>60
Exhibit H hereto and covering such additional matters
relating to the transactions contemplated hereby as the
Required Banks may reasonably request;
(l) receipt by each Bank (or the Agent on its
behalf) of a purpose statement on Form FR U-1 completed
in conformity with the requirements of Regulation U,
together with such other information or documents as
may be requested by such Bank in order to determine or
establish compliance with Regulation U with respect to
any Loans to be made by it hereunder; and
(m) receipt by the Agent of all documents it may
reasonably request relating to the existence of the
Borrower, the corporate authority for and the validity
of this Agreement, the Security Agreement and the
Notes, the receipt of consents of the holders of
Secured Obligations, the validity, perfection and
priority of the Security Interests and any other
matters relevant hereto, all in form and substance
satisfactory to the Agent;
provided that this Agreement shall not become effective or
be binding on any party hereto unless all of the foregoing
conditions are satisfied or waived not later than October
28, 1993. The Agent shall promptly notify the other parties
hereto of the Effective Date, and such notice shall be
conclusive and binding on all parties hereto.
SECTION 3.03. Termination of Commitments under
Existing Credit Agreements; Release of Existing Collateral.
(a) The Borrower and each Bank which is a party to the
Existing PHI Credit Agreement or the Existing PFS Credit
Agreement agree that the "Commitments" under the Existing
PHI Credit Agreement and the Existing PFS Credit Agreement
shall terminate, without further action of any party
thereto, on the date on which all other conditions to the
effectiveness of this Agreement are satisfied, and that any
loans outstanding thereunder on such date may be prepaid on
such date, all without any prior notice of such termination
or prepayment. Any note delivered to any Bank under the
Existing PHI Credit Agreement or the Existing PFS Credit
Agreement (an "Old Note") shall become void upon payment of
the amounts referred to in clauses (g) and (h) of Section
3.02 and, upon receiving its share of such payments, each
such Bank will cancel each of its Old Notes and return them
to the Borrower. No failure of a Bank so to cancel and
return its Old Notes shall affect the validity of its new
Note.
<PAGE>
<PAGE>61
(b) Each Bank which is party to the Existing PHI
Credit Agreement also consents to the release of the
Collateral (as defined in the Existing Pledge Agreement) and
waives all requirements in the Existing Pledge Agreement
that prior notice of such release be given to the Collateral
Agent or the Secured Parties Requesting Notice (as such
terms are defined therein); provided that (i) prior to or
concurrently with such release, the "Commitments" (as
defined in the Existing PHI Credit Agreement) terminate and
all loans (if any) outstanding thereunder and all interest
and fees accrued thereunder and all other amounts then due
and payable shall have been paid in full, (ii)
simultaneously with such release, security interests in such
Collateral shall be granted under the Security Agreement to
the Collateral Agent for the benefit of the Secured Parties
thereunder and (iii) the Collateral Agent under the Existing
Pledge Agreement shall (and is hereby authorized by the
Borrower to) deliver all securities included in such
Collateral directly to the Collateral Agent under the
Security Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The
Borrower is a corporation duly incorporated, validly exist-
ing and in good standing under the laws of its jurisdiction
of incorporation, and has all corporate powers and all
material governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted.
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention. The execution and delivery
by the Borrower of this Agreement and the Notes and the
performance by the Borrower of its obligations hereunder and
thereunder are within the Borrower's corporate powers and
have been duly authorized by all necessary corporate action.
The execution and delivery by PCI of the Spring Creek
Participation Agreement and the performance by PCI of its
obligations thereunder are within PCI's corporate powers and
have been duly authorized by all necessary corporate action.
This Agreement has been duly executed and delivered by the
Borrower and the Spring Creek Participation Agreement has
been duly executed and delivered by PCI. No registration,
recordation or filing with or consent, approval or other <PAGE>
<PAGE>62
action by any regulatory or other governmental body, agency
or official is required in connection with the execution or
delivery of this Agreement and the Notes by the Borrower or
the execution or delivery of the Spring Creek Participation
Agreement by PCI or is necessary for the validity or
enforceability hereof or thereof, and the execution,
delivery, performance and enforcement of this Agreement, the
Notes and the Spring Creek Participation Agreement do not
and will not contravene, or constitute a default under, any
provision of applicable law or regulation, or of the
certificate of incorporation or by-laws of the Borrower or
any of its Subsidiaries or of any agreement, judgment,
injunction, order, decree or other instrument binding upon
the Borrower or PCI or result in the creation or imposition
of any Lien (other than the Security Interests) upon any
asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement and
the Security Agreement constitute valid and binding
agreements of the Borrower, the Notes constitute valid and
binding obligations of the Borrower and the Spring Creek
Participation Agreement and the PCI Agreement constitute
valid and binding agreements of PCI, all enforceable in
accordance with their respective terms, except as the
foregoing may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium, or other
similar laws affecting the rights of creditors generally and
by general principles of equity, including those limiting
the availability of specific performance, injunctive relief,
and other equitable remedies and those providing for
defenses based on fairness and reasonableness, regardless of
whether considered in a proceeding in equity or at law.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of December
31, 1992 and the related statements of consolidated income
and retained earnings and of consolidated cash flows for the
Fiscal Year then ended, reported on by Deloitte & Touche,
copies of which have been delivered to each of the Banks,
present fairly, in all material respects, the consolidated
financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results
of operations and cash flows for such Fiscal Year, in
conformity with generally accepted accounting principles.
(b) The consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of June 30,
1993 and the related statements of consolidated income and
retained earnings for the quarter and six months then ended <PAGE>
<PAGE>63
and of consolidated cash flows for the six months then
ended, copies of which have been delivered to each of the
Banks, present fairly, in all material respects, on a basis
substantially consistent (except as disclosed in the notes
to said financial statements) with the financial statements
referred to in subsection (a) of this Section, the
consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their
consolidated results of operations for such quarter and six
month period and cash flows for such six month period
(subject to normal year-end adjustments).
(c) The consolidated balance sheet of each First
Tier Significant Subsidiary and its Consolidated Subsidi-
aries as of December 31, 1992 and the related consolidated
statements of income and retained earnings and of cash flows
for the fiscal year then ended, reported on by Deloitte &
Touche, copies of which have been delivered to each of the
Banks, present fairly, in all material respects, the
consolidated financial position of such First Tier
Significant Subsidiary and its Consolidated Subsidiaries as
of such date and their consolidated results of operations
and cash flows for such fiscal year, in conformity with
general accepted accounting principles.
(d) The consolidated balance sheet of each First
Tier Significant Subsidiary and its Consolidated Subsidi-
aries as of June 30, 1993 and the related consolidated
statements of income and retained earnings for the quarter
and six months then ended and of cash flows for the six
months then ended, copies of which have been delivered to
each of the Banks, present fairly, in all material respects,
on a basis substantially consistent (except as disclosed in
the notes to said financial statements) with the financial
statements of such First Tier Significant Subsidiary and its
Consolidated Subsidiaries referred to in subsection (c) of
this Section, the consolidated financial position of such
First Tier Significant Subsidiary and its Consolidated
Subsidiaries as of such date and their consolidated results
of operations for such quarter and six month period and cash
flows for such six month period (subject to normal year-end
adjustments).
(e) Since June 30, 1993 there has been no change
in the business, financial position, results of operations
or prospects of (i) the Borrower and its Consolidated
Subsidiaries, considered as a whole, or (ii) PTI and its
Consolidated Subsidiaries, considered as a whole, which, in
any such case, would materially and adversely affect the
ability of the Borrower to perform its obligations
hereunder.
<PAGE>
<PAGE>64
SECTION 4.05. Litigation. Except as disclosed in
(i) PTI's annual report on Form 10-K for 1992 and PTI's
quarterly reports on Form 10-Q for the fiscal quarters ended
March 31 and June 30, 1993 and (ii) PFS's annual report on
Form 10-K for 1992 and PFS's quarterly reports on Form 10-Q
for the quarters ended March 31 and June 30, 1993, there is
no action, suit or proceeding pending against, or to the
knowledge of the Borrower threatened against or affecting,
the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in
which there is a reasonable possibility of an adverse
decision which would materially and adversely affect the
ability of the Borrower to perform its obligations under
this Agreement or which in any manner draws into question
the validity of this Agreement, the Security Agreement or
the Notes.
SECTION 4.06. Compliance with ERISA. Each member
of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue
Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions
of ERISA and the Internal Revenue Code with respect to each
Plan. No member of the ERISA Group has (i) sought a waiver
of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiem-
ployer Plan or made any amendment to any Plan which has
resulted or could result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the
Internal Revenue Code or (iii) incurred any material
liability under Title IV of ERISA other than a liability to
the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. Taxes. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries
in respect of taxes or other governmental charges are, in
the opinion of the Borrower, adequate.
SECTION 4.08. Subsidiaries. Each of the First
Tier Significant Subsidiaries, PGC and PCI (i) is a
corporation duly incorporated and validly existing under the
laws of its jurisdiction of incorporation, (ii) has paid all
franchise taxes (or other similar taxes) heretofore required
to be paid and has filed all reports heretofore required to
be filed to maintain its existence under the laws of its
jurisdiction of incorporation and (iii) has all corporate
powers and all material governmental licenses, authoriza-
tions, consents and approvals required to carry on its
business as now conducted.
<PAGE>
<PAGE>65
SECTION 4.09. Regulation. The Borrower is not
subject to regulation under the Public Utility Holding
Company Act of 1935, the Investment Company Act of 1940, the
Interstate Commerce Act or any other law or regulation which
limits the incurrence by the Borrower of Debt, including,
but not limited to, laws relating to common or contract
carriers or the sale of electricity, gas, steam, water or
other public utility services.
SECTION 4.10. Environmental Matters. Each of PTI
and PGC conducts in the ordinary course of its business a
review of the effect of applicable Environmental Laws on its
business, operations and properties, and as a result thereof
the Borrower has reasonably concluded that such Environmen-
tal Laws are unlikely to have a material adverse effect on
the Borrower's ability to perform its obligations under this
Agreement.
SECTION 4.11. Spring Creek Documents. (a) Each
of the Spring Creek Loan Agreement, the Spring Creek Note
and the Spring Creek Participation Agreement is a valid and
binding agreement or obligation of the parties thereto and
is in full force and effect in the form delivered to the
Banks and the Collateral Agent prior to the signing of this
Agreement, subject only to amendments and waivers permitted
by Section 5.12. The execution, delivery and performance of
the Spring Creek Loan Agreement, the Spring Creek Note and
the Spring Creek Participation Agreement did not and will
not contravene, or constitute a default under, any provision
of the Spring Creek Coal Supply Contract (as defined in the
Security Agreement).
(b) To the best of the Borrower's knowledge, each
of the Spring Creek Coal Contracts is a valid and binding
agreement of the parties thereto and the summaries thereof
in Appendix I (including Exhibits B, C and D thereto) to the
Supplemental Information booklet dated July 30, 1993, copies
of which were delivered to the Banks prior to the signing of
this Agreement, are accurate in all material respects and do
not omit information necessary to make the information set
forth therein not materially misleading.
SECTION 4.12. Original Pledged Stock; PFS Debt
Instruments. (a) The Original Pledged Stock includes all
of the capital stock of PTI owned by the Borrower and all of
the outstanding capital stock of PFS and PGC.
(b) As of September 30, 1993, there are no
instruments evidencing obligations owing to the Borrower by
PFS or any of its Subsidiaries.
<PAGE>
<PAGE>66
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has
any Commitment or Outstanding LC Exposure hereunder or any
amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Borrower will
deliver to each of the Banks:
(a) as soon as available and in any event within
120 days after the end of each Fiscal Year, a
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such Fiscal
Year and the related consolidated statements of income
and retained earnings and of cash flows for such Fiscal
Year, in each case setting forth the figures for the
previous Fiscal Year, all reported on by Deloitte &
Touche or other independent public accountants of
nationally recognized standing;
(b) as soon as available and in any event within
60 days after the end of each of the first three
quarters of each Fiscal Year, a consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries
as of the end of such quarter (setting forth in
comparative form the figures for the end of the
previous Fiscal Year) and the related consolidated
statement of income and retained earnings for such
quarter and the portion of the Fiscal Year then ended
and the related statement of cash flows for the portion
of the Fiscal Year then ended, setting forth in each
case in comparative form the figures for the
corresponding quarter and the corresponding portion of
the previous Fiscal Year, all certified (subject to
normal year-end adjustments) as to fairness of
presentation and consistency by a Responsible Officer;
(c) simultaneously with the delivery of each set
of financial statements referred to in clauses (a) and
(b) above, (i) a consolidated balance sheet of each
First Tier Significant Subsidiary and its Subsidiaries
as of the end of the relevant fiscal period and the
related consolidated statements of income and retained
earnings and of cash flows for the period or periods
specified in clause (a) or (b), as the case may be,
setting forth in each case in comparative form the
figures for the corresponding period or periods in the
previous Fiscal Year, all certified (subject, in the <PAGE>
<PAGE>67
case of statements delivered with respect to each of
the first three quarters of each Fiscal Year, to normal
year-end adjustments) as to fairness of presentation
and consistency by a Responsible Officer, provided that
footnotes may be omitted from such financial statements
and the Responsible Officer's certification thereof may
be qualified by a reference to the omission of such
footnotes; (ii) consolidating financial information
substantially similar to that provided to the Banks in
connection with this Agreement; and (iii) a certificate
of a Responsible Officer (A) setting forth in detail
satisfactory to the Agent the calculations required to
establish whether the Borrower was in compliance with
the requirements of Sections 5.02, 5.03, 5.06(a), 5.08,
5.09 and 5.10 on the date of such financial statements
and, in the case of Section 5.06(a), identifying any
Excluded Dividends declared or paid by the Borrower and
(B) stating whether any Default exists on the date of
such certificate and, if any Default then exists,
setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect
thereto;
(d) simultaneously with the delivery of each set
of financial statements referred to in clause (a)
above, a statement of the firm of independent public
accountants which reported on such statements
(i) whether anything has come to their attention to
cause them to believe that any Default existed on the
date of such statements and (ii) confirming the
calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to clause
(c) above, it being understood that such public
accountants shall not be liable, directly or
indirectly, for any failure to obtain knowledge of any
Default, unless such public accountants should have
obtained knowledge thereof in making an audit in
accordance with generally accepted auditing standards;
(e) forthwith upon the occurrence of any Default,
a certificate of a Responsible Officer setting forth
the details thereof and the action which the Borrower
is taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the
shareholders of the Borrower or any First Tier
Significant Subsidiary generally, copies of all
financial statements, reports and proxy statements so
mailed;
<PAGE>
<PAGE>68
(g) promptly upon the filing thereof, copies of
all registration statements (other than the exhibits
thereto and any registration statements on Form S-8 or
its equivalent) and annual, quarterly or other reports
which the Borrower or any First Tier Significant
Subsidiary shall have filed with the Securities and
Exchange Commission;
(h) if and when any member of the ERISA Group (i)
gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of
ERISA) for which the requirement of notice to the PBGC
within 30 days has not been waived, with respect to any
Plan which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows that the
plan administrator of any Plan has given or is required
to give notice of any such reportable event, a copy of
the notice of such reportable event given or required
to be given to the PBGC; (ii) receives notice of
complete or partial withdrawal liability under Title IV
of ERISA in excess of $1,000,000 or notice that any
Multiemployer Plan is in reorganization, is insolvent
or has been terminated (which event or condition causes
or could cause one or more members of the ERISA Group
to have a current payment obligation in excess of
$1,000,000), a copy of such notice; (iii) receives
notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum
funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section
4041(c) of ERISA, a copy of such notice and other
information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of
ERISA (which event or condition causes or could cause
one or more members of the ERISA Group to have a
current payment obligation in excess of $1,000,000), a
copy of such notice; or (vii) fails to make any payment
or contribution to any Plan or Multiemployer Plan or
makes any amendment to any Plan which has resulted or
could result in the imposition of a Lien or the posting
of a bond or other security, a certificate of a
Responsible Officer setting forth details as to such
occurrence and action, if any, which the Borrower or
applicable member of the ERISA Group is required or
proposes to take;
<PAGE>
<PAGE>69
(i) promptly upon receipt of notice by the
Borrower of an adverse change in any Debt Rating or
Short-Term Debt Rating, a notice of such event;
(j) promptly upon delivery thereof to the
Collateral Agent, a copy of (i) each notice (if any)
designating obligations of the Borrower as Additional
Secured Obligations pursuant to Section 18 of the
Security Agreement and (ii) each notice (if any)
directing the Collateral Agent to release any assets
from the Security Interests pursuant to Section 16 of
the Security Agreement, together with a copy of the
certificate of a Responsible Officer required by
Section 16(A)(ii) of the Security Agreement and any
legal opinion required by Section 16(A)(iii) thereof;
and
(k) from time to time such additional information
regarding the financial position or business of the
Borrower or any Significant Subsidiary as the Agent, at
the request of any Bank, may reasonably request.
SECTION 5.02. Consolidated Debt. During each
period set forth below, Adjusted Consolidated Debt shall at
no time exceed the percentage of Consolidated Capitalization
set forth opposite such period:
Period Percentage
From and including the Effective Date
to but excluding December 31, 1994 70%
From and including December 31, 1994
to but excluding December 31, 1995 67.5%
On or after December 31, 1995 65%
SECTION 5.03. Interest Coverage. (a) At the end
of each of the Fiscal Quarters ending on December 31, 1993,
March 31, 1994 and June 30, 1994, Annualized Available Cash
Income shall not be less than 250% of Pro Forma Interest
Expense (After Tax) for the next succeeding period of four
consecutive Fiscal Quarters.
(b) At the end of the Fiscal Quarter ending
September 30, 1994, Available Cash Income for the period of
four consecutive Fiscal Quarters then ended shall not be
less than 250% of Pro Forma Interest Expense (After Tax) for
the next succeeding period of four consecutive Fiscal
Quarters.
<PAGE>
<PAGE>70
(c) At the end of each Fiscal Quarter ending
after September 30, 1994, Available Cash Income for the
period of four consecutive Fiscal Quarters then ended shall
not be less than 300% of Pro Forma Interest Expense (After
Tax) for the next succeeding period of four consecutive
Fiscal Quarters.
SECTION 5.04. Negative Pledge. The Borrower will
not create, assume or suffer to exist any Lien on any asset
now owned or hereafter acquired by it, other than (i)
inchoate tax liens, (ii) Permitted Liens which do not apply
to any of the Collateral and (iii) the Security Interests
granted in the Security Agreement; provided that the
Borrower may at any time secure its obligations to another
creditor or group of creditors (each an "Other Creditor") by
creating a Lien on cash or Approved Securities (such Other
Creditor's "Collateral"), but only if, when any such Lien is
created and thereafter so long as any such Lien remains in
effect, the Borrower's obligations outstanding hereunder are
secured by an equivalent Lien on cash or Approved Securities
(the "Banks' Collateral"). A Lien shall be considered
"equivalent" for purposes of the foregoing proviso only if
(i) the value of the Banks' Collateral, expressed as a
percentage of the aggregate amount of the Borrower's
obligations outstanding hereunder from time to time, is not
materially less than the value of any Other Creditor's
Collateral, expressed as a percentage of the obligations
(including contingent obligations) secured by it, and (ii)
the documentation creating such Lien on the Banks'
Collateral is not materially less favorable to the Banks
than the documentation creating a Lien on any Other
Creditor's Collateral is to such Other Creditor.
SECTION 5.05. Consolidations, Mergers and Sales
of Assets. The Borrower will not (i) consolidate or merge
with or into any other Person, (ii) transfer any shares of
PTI or PFS directly or indirectly to any Subsidiary or
Affiliate or (iii) sell, lease or otherwise transfer all or
substantially all of its assets to any other Person;
provided that the Borrower may merge with another Person if
the corporation surviving such merger is (A) the Borrower or
(B) a wholly-owned Subsidiary of the Parent formed solely
for the purpose of reincorporating the Borrower in the State
of Oregon; provided further that, immediately after giving
effect to any such merger, no Default shall have occurred
and be continuing. Nothing in this Section is intended to
prohibit or restrict a sale of Collateral pursuant to the
Security Agreement. In the case of a merger permitted under
clause (B) of the first sentence of this Section, the corpo-
ration surviving such merger shall assume the obligations of
the Borrower under this Agreement, the Security Agreement <PAGE>
<PAGE>71
and the Notes by an assumption agreement satisfactory in
form and substance to the Agent, and the Borrower shall
provide to the Agent, no later than 10 Domestic Business
Days following the consummation of such merger, an opinion
of counsel, satisfactory to the Agent, to the effect that:
(x) the surviving corporation has been duly incorporated and
is validly existing under the laws of Oregon; (y) the
foregoing assumption agreement has been duly authorized,
executed and delivered by such surviving corporation and is
a valid and binding agreement of the surviving corporation
enforceable in accordance with its terms; and (z) this
Agreement and the Security Agreement constitute valid and
binding agreements of the surviving corporation enforceable
in accordance with their respective terms and the Notes
constitute valid and binding obligations of the surviving
corporation enforceable in accordance with their terms. The
foregoing opinion of counsel may contain substantially the
same exceptions, qualifications and assumptions as are
contained in the opinions of counsel for the Borrower
delivered pursuant to clauses (i) and (j) of Section 3.02.
SECTION 5.06. Restricted Stock Payments and
Restricted Dividends. (a) The Borrower will not declare
any Restricted Dividend or make any Restricted Stock Payment
during any Fiscal Quarter (the "Current Fiscal Quarter")
unless, immediately after giving effect to the declaration
of such Restricted Dividend or the making of such Restricted
Stock Payment, Adjusted Available Cash Income for the
immediately preceding four Fiscal Quarters shall be at least
110% of the sum of (x) Interest Expense for said four
preceding Fiscal Quarters, net of related tax benefits
calculated at the Net Effective Tax Rate for said four
preceding Fiscal Quarters, and (y) the aggregate amount of
Restricted Dividends declared and Restricted Stock Payments
made during the Current Fiscal Quarter and the three
immediately preceding Fiscal Quarters.
(b) The Borrower will not declare any Restricted
Dividend or make any Restricted Stock Payment at a time when
a Default shall have occurred and be continuing; provided
that in determining, for purposes of this subsection (b),
whether any Default shall have occurred and be continuing
under Section 5.03, there shall be excluded from the
calculation of Available Cash Income any cash equity
Investments made by the Parent in the Borrower that, if not
received by the Borrower, would have resulted in one or more
Defaults under Section 5.03, except that the first such
equity Investment made after June 30, 1993 and required to
avoid one or more such Defaults shall not be so excluded.
<PAGE>
<PAGE>72
(c) The Borrower will not permit any of its
Subsidiaries to make any Restricted Stock Payment.
SECTION 5.07. Use of Proceeds. The proceeds of
the Loans made under this Agreement will be used by the
Borrower (i) to make equity Investments in and/or loans to
PFS and (ii) for the Borrower's other general corporate
purposes. None of such proceeds will be used, directly or
indirectly, for the purpose, whether immediate, incidental
or ultimate, of purchasing or carrying any "margin stock"
within the meaning of Regulation U.
SECTION 5.08. Investments in PFS; Guarantees of
PFS Debt. (a) After June 30, 1993, neither the Borrower
nor any of its Restricted Subsidiaries will make or acquire
any equity Investment in PFS or any Subsidiary of PFS in any
Fiscal Year, except (i) the transfers of assets as capital
contributions to PFS as of July 1, 1993 listed in Schedule
II hereto, (ii) equity Investments in cash required under
Permitted Support Agreements and (iii) any other equity
Investment if, immediately after such equity Investment is
made or acquired, the sum of (x) the aggregate amount of all
equity Investments (less returns of capital) made or
acquired pursuant to clause (ii) above and this clause (iii)
in such Fiscal Year and (y) the aggregate outstanding
principal amount of additional Debt of PFS or any of its
Subsidiaries Guaranteed pursuant to subsection (b)(ii) of
this Section during such Fiscal Year does not exceed
$25,000,000.
(b) After June 30, 1993, neither the Borrower nor
any of its Restricted Subsidiaries will Guarantee any Debt
of PFS or any Subsidiary of PFS in any Fiscal Year, except:
(i) Debt Guaranteed under Permitted Support
Agreements, provided that the aggregate principal
amount of Debt Guaranteed under the Permitted Support
Agreements shall not exceed the amount so Guaranteed
immediately after the Effective Date as shown on
Schedule I hereto, and
(ii) other Debt of PFS or any Subsidiary of PFS
if, immediately after such Debt is so Guaranteed, the
sum of (x) the aggregate outstanding principal amount
of Debt of PFS or any of its Subsidiaries Guaranteed
pursuant to this clause (ii) during such Fiscal Year
and (y) the aggregate amount of all equity Investments
(less returns of capital) made or acquired pursuant to
clauses (ii) and (iii) of subsection (a) of this
Section during such Fiscal Year does not exceed
$25,000,000.
<PAGE>
<PAGE>73
SECTION 5.09. Debt of PFS. At no time shall the
aggregate principal amount of Debt of PFS exceed
$120,000,000; provided that the following Debt of PFS shall
be excluded in calculating the aggregate outstanding
principal amount of its Debt for purposes of this covenant:
(i) Debt of PFS outstanding under the
Intercompany Loan Agreements;
(ii) Debt of PFS owed to its Subsidiaries;
(iii) Non-Recourse Debt of PFS;
(iv) Debt of others not exceeding $160,000,000 in
aggregate outstanding principal amount Guaranteed by
PFS; and
(v) Debt of PFS Guaranteed by the Borrower after
June 30, 1993 as permitted by Section 5.08(b)(ii).
SECTION 5.10. Other Senior Secured Obligations.
During each period set forth below, the aggregate amount of
all Senior Secured Obligations (excluding (i) accrued
interest with respect to Senior Secured Obligations, (ii)
the Loans, (iii) the LC Liabilities and (iv) Excluded ESOP
Debt) shall at no time exceed the amount set forth opposite
such period:
Period Maximum Amount
From the Effective Date to but
excluding December 31, 1994 $130,000,000
From December 31, 1994 to but
excluding December 31, 1995 $120,000,000
On or after December 31, 1995 $100,000,000
SECTION 5.11. Pledged Stock. (a) The Pledged
Stock will include at least 51% of the outstanding common
stock of PTI at all times, unless and until either (i) all
of the Collateral is released pursuant to Section 16 of the
Security Agreement or (ii) shares of Pledged Stock of PTI
are sold pursuant to Section 10 of the Security Agreement.
(b) If the Borrower at any time acquires any
additional shares of capital stock of any class of PFS or
PGC, the Borrower will immediately add such shares to the
Collateral by delivering the certificates representing such
shares to the Collateral Agent in pledge under the Security
Agreement.
<PAGE>
<PAGE>74
SECTION 5.12. Spring Creek Documents. Without
the consent of the Required Banks (which consent will not be
withheld by any Bank unless it determines, in its
discretion, that it is reasonable to withhold such consent),
neither the Borrower nor PCI will amend or waive any
provision of the Spring Creek Loan Documents or the Spring
Creek Participation Agreement in a manner that adversely
affects (i) the rights of the Banks or the Collateral Agent
under this Agreement or the Security Agreement or (ii) the
value of the Borrower's Interest in Spring Creek
Obligations; provided that this Section shall not prohibit
any amendment or waiver of the Spring Creek Loan Documents
that is required to reflect amendments or waivers of the
Spring Creek Coal Contracts.
SECTION 5.13. Guarantees of Certain Hedging
Agreements. Neither the Borrower nor any of its Restricted
Subsidiaries will guarantee any obligation of any Excluded
Subsidiary under any interest rate swap, currency exchange
agreement or other agreement entered into for the purpose of
hedging the risk of changes in interest rates or currency
exchange rates; provided that this Section 5.13 shall not
apply to the Support Agreements referred to in items (8) and
(9) of Schedule I hereto insofar as they guarantee
obligations of PFS under the Interest Rate Agreement and the
Interest Rate and Currency Exchange Agreement referred to
therein as in effect on the Effective Date (but not any
extensions thereof or replacements therefor).
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more
of the following events ("Events of Default") shall have
occurred and be continuing:
(a) the Borrower shall fail to pay when due any
principal of any Loan, or shall fail to pay within five
days of the due date thereof any interest, fee or other
amount payable hereunder;
(b) the Borrower shall fail to observe or perform
any covenant contained in Sections 5.02 to 5.11,
inclusive;
(c) the Borrower shall fail to observe or perform
any covenant or agreement contained in this Agreement
or the Security Agreement (other than those covered by <PAGE>
<PAGE>75
clause (a) or (b) above) for 15 days after written
notice thereof has been given to the Borrower by the
Agent at the request of any Bank;
(d) any representation, warranty, certification
or statement made by the Borrower in this Agreement or
the Security Agreement or in any certificate, financial
statement or other document delivered pursuant to this
Agreement or the Security Agreement shall prove to have
been incorrect in any material respect when made (or
deemed made);
(e) the Borrower and/or one or more Significant
Subsidiaries shall fail to make any payment in respect
of any Material Debt (other than the Notes) when due or
within any applicable grace period;
(f) any event or condition shall occur which
results in the acceleration of the maturity of any
Material Debt of the Borrower and/or one or more
Significant Subsidiaries or enables the holder of such
Debt or any Person acting on such holder's behalf to
accelerate the maturity thereof; provided that this
clause (f) shall not apply to Debt of a Person (other
than the Borrower or any of its Significant Subsidi-
aries) which is Guaranteed by the Borrower and/or one
or more Significant Subsidiaries unless the Borrower or
any such Significant Subsidiary shall have failed to
duly perform its respective obligations under such
Guarantees;
(g) the Borrower or any Significant Subsidiary
(or any group of Subsidiaries of the Borrower which, if
considered in the aggregate as a single Subsidiary,
would constitute a Significant Subsidiary) shall
commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar
official of it or any substantial part of its property,
or shall consent to any such relief or to the appoint-
ment of or taking possession by any such official in an
involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit
of creditors, or shall fail generally to pay its debts
as they become due, or shall take any corporate action
to authorize any of the foregoing;
<PAGE>
<PAGE>76
(h) an involuntary case or other proceeding shall
be commenced against the Borrower or any Significant
Subsidiary (or any group of Subsidiaries of the
Borrower which, if considered in the aggregate as a
single Subsidiary, would constitute a Significant
Subsidiary) seeking liquidation, reorganization or
other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its
property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of
60 days; or an order for relief shall be entered
against the Borrower or any such Significant Subsidiary
or group of Subsidiaries under the federal bankruptcy
laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to
pay when due an amount or amounts aggregating in excess
of $10,000,000 which it shall have become liable to pay
under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV
of ERISA by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability in excess of
$10,000,000 (other than for premiums under Section 4007
of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would
be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur
a complete or partial withdrawal from, or a default,
within the meaning of Section 4219(c)(5) of ERISA, with
respect to, one or more Multiemployer Plans which could
cause one or more members of the ERISA Group to incur a
current payment obligation in excess of $25,000,000;
(j) the Parent shall cease to own 100% of the
Voting Stock of the Borrower;
(k) a final judgment or order for the payment of
money in excess of $5,000,000 shall be rendered against
the Borrower or any Significant Subsidiary and such
judgment or order shall continue unsatisfied and
unstayed for a period of 30 days;
(l) the Borrower shall cease to own, directly or
indirectly, at least 51% of the outstanding common
stock of each corporation (other than PGC) which is a <PAGE>
<PAGE>77
Significant Subsidiary immediately before such
ownership declines below 51%, except that the Borrower
may cease to own at least 51% of the outstanding common
stock of such a corporation either (X) as a result of
sales of Pledged Stock pursuant to the Security
Agreement or (Y) if the existence of such corporation
is terminated by merger, consolidation or liquidation
and the Borrower shall own, directly or indirectly, at
least 51% of the outstanding common stock of the
corporation into which such corporation is merged or
consolidated or to which a majority of its net assets
are transferred upon its liquidation;
(m) any Subsidiary of the Borrower shall create,
assume or suffer to exist any Lien (other than inchoate
tax liens) on any equity security of any corporate
Significant Subsidiary of the Borrower now owned or
hereafter acquired by such Subsidiary, and such Lien
shall continue to exist for 15 days after written
notice requesting the removal of such Lien has been
given to the Borrower by the Agent at the request of
any Bank;
(n) any corporate Significant Subsidiary of the
Borrower shall consolidate or merge with or into, or
transfer all or substantially all of its assets to, any
Person other than the Borrower, unless the corporation
surviving such merger or the transferee of such assets
is a Subsidiary of the Borrower; or
(o) the Security Interests granted in the
Security Agreement shall cease at any time and for any
reason, other than in compliance with the provisions of
Section 2.16 hereof and Section 16 of the Security
Agreement or as a result of any action or inaction by
the Collateral Agent or any Secured Party, to
constitute valid and perfected Liens on the Pledged
Securities, subject to no prior or equal Lien (except
that the Security Interests securing the Junior Secured
Obligations are junior to the Security Interests
securing the Senior Secured Obligations);
then, and in every such event, the Agent shall (i) if
requested by the Required Banks, by notice to the Borrower
terminate the Commitments and they shall thereupon
terminate, (ii) if requested by Banks having at least 60% of
the aggregate amount of the Outstanding LC Exposures, by
notice to each LC Issuing Bank instruct such LC Issuing Bank
to deliver an LC Termination Notice to the beneficiary of
each outstanding Letter of Credit issued by it, whereupon
the LC Issuing Banks shall promptly deliver such LC <PAGE>
<PAGE>78
Termination Notices, and (iii) if requested by Banks holding
Notes evidencing at least 60% in aggregate principal amount
of the Loans outstanding, by notice to the Borrower declare
the Notes (together with accrued interest thereon) to be,
and the Notes shall thereupon become, immediately due and
payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower;
provided that in the case of any of the Events of Default
specified in clause (g) or (h) above with respect to the
Borrower, without any notice to the Borrower or any other
act by the Agent or the Banks, the Commitments shall
thereupon terminate and the Notes (together with accrued
interest thereon) shall become immediately due and payable
without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
SECTION 6.02. Notice of Default. The Agent shall
give notice to the Borrower under subsection (c) or (m) of
Section 6.01 promptly upon being requested to do so by any
Bank and shall thereupon notify all the Banks thereof.
SECTION 6.03. Cash Cover. The Borrower agrees,
in addition to the provisions of Section 6.01 hereof, that
upon the occurrence and during the continuance of any Event
of Default, it shall, if requested by the Agent upon
instruction from Banks having at least 60% of the aggregate
amount of the Outstanding LC Exposures, deliver (and, in the
case of any of the Events of Default specified in clause (g)
or (h) above, forthwith, without any demand or the taking of
any other action by the Agent or any Bank, it shall deliver)
to the Agent cash or Approved Securities or any combination
thereof having an aggregate value at least equal to the then
aggregate amount of the LC Liabilities to be held as
security therefor for the benefit of the Banks and the LC
Issuing Banks.
ARTICLE VII
THE AGENT AND THE CO-AGENT
SECTION 7.01. Appointment and Authorization.
Each Bank irrevocably appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such
powers under this Agreement and the Notes as are delegated
to the Agent by the terms hereof or thereof, together with
all such powers as are reasonably incidental thereto.
<PAGE>
<PAGE>79
SECTION 7.02. Agent and Affiliates. Morgan
Guaranty Trust Company of New York shall have the same
rights and powers under this Agreement as any other Bank and
may exercise or refrain from exercising the same as though
it were not the Agent, and Morgan Guaranty Trust Company of
New York and its affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with
the Borrower or any Subsidiary or affiliate of the Borrower
as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations
of the Agent hereunder are only those expressly set forth
herein. Without limiting the generality of the foregoing,
the Agent shall not be required to take any action with
respect to any Default, except as expressly provided in
Article VI.
SECTION 7.04. Consultation with Experts. The
Agent may consult with legal counsel (who may be counsel for
the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or
experts.
SECTION 7.05. Liability of Agent. Neither the
Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable for
any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks
or (ii) in the absence of its own gross negligence or will-
ful misconduct. Neither the Agent nor any of its affiliates
nor any of their respective directors, officers, agents or
employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this
Agreement or the Security Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the
covenants or agreements of the Borrower in this Agreement or
the Security Agreement; (iii) the satisfaction of any
condition specified in Article III, except receipt of items
required to be delivered to the Agent; (iv) the validity,
effectiveness or genuineness of this Agreement, the Notes,
the Security Agreement or the PCI Agreement or any other
instrument or writing furnished in connection herewith or
(v) the value of the Collateral held under the Security
Agreement or the existence, validity or amount of any of the
Secured Obligations. The Agent shall not incur any
liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a
bank wire, facsimile transmission, telex or similar writing)
<PAGE>
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believed by it to be genuine or to be signed by the proper
party or parties.
SECTION 7.06. Indemnification. Each Bank shall,
ratably in accordance with its Percentage, indemnify the
Agent, its affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed
by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss
or liability (except such as result from such indemnitees'
gross negligence or willful misconduct) that such indemni-
tees may suffer or incur in connection with this Agreement
or any action taken or omitted by such indemnitees
hereunder.
SECTION 7.07. Credit Decision. Each Bank
acknowledges that it has, independently and without reliance
upon the Agent, the Co-Agent or any other Bank, and based on
such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent, the Co-
Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not
taking any action under this Agreement or the Security
Agreement.
SECTION 7.08. Successor Agent. The Agent may
resign at any time by giving written notice thereof to the
Banks and the Borrower. Upon any such resignation, the
Required Banks, with the consent of the Borrower (which
consent shall not be unreasonably withheld), shall have the
right to appoint another Bank as successor Agent. If no
successor Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within 10
days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be one of the
Banks or shall be a commercial bank organized or licensed
under the laws of the United States of America or of any
State thereof and having a combined capital and surplus of
at least $500,000,000. Upon the acceptance of its
appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested
with all the rights and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this
Article shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent.
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SECTION 7.09. Agent's Fees. The Borrower shall
pay to the Agent for its own account fees in the amounts and
at the times previously agreed upon between the Borrower and
the Agent.
SECTION 7.10. Collateral Agent and Co-Agent. (a)
Each Bank irrevocably appoints and authorizes the Collateral
Agent (i) to take such action as agent on its behalf and to
exercise such powers under the Security Agreement as are
delegated to the Collateral Agent by the terms thereof,
together with all such powers as are reasonably incidental
thereto and (ii) to sign and deliver the PCI Agreement.
Each Bank agrees to be bound by the provisions of the
Security Agreement and the PCI Agreement relating to the
Collateral Agent.
(b) The Co-Agent shall have no duties under this
Agreement.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of
any Interest Period for any Fixed Rate Borrowing:
(a) the Agent is advised by the Reference Banks
that deposits in dollars (in the applicable amounts)
are not being offered to the Reference Banks in the
relevant market for such Interest Period, or
(b) Banks having 60% or more of the aggregate
amount of the Commitments advise the Agent that the
Adjusted CD Rate or the Adjusted London Interbank
Offered Rate, as the case may be, as determined by the
Agent will not adequately and fairly reflect the cost
to such Banks of funding their CD Loans or Euro-Dollar
Loans, as the case may be, for such Interest Period,
the Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Agent notifies
the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligations of the Banks to
make CD Loans or Euro-Dollar Loans, as the case may be,
shall be suspended. Unless the Borrower notifies the Agent
at least two Domestic Business Days before the date of any
Fixed Rate Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such <PAGE>
<PAGE>82
date, (i) if such Fixed Rate Borrowing is a Committed
Borrowing, such Borrowing shall instead be made as a Base
Rate Borrowing and (ii) if such Fixed Rate Borrowing is a
Money Market LIBOR Borrowing, the Money Market LIBOR Loans
comprising such Borrowing shall bear interest for each day
from and including the first day to but excluding the last
day of the Interest Period applicable thereto at the Base
Rate for such day.
SECTION 8.02. Illegality. If, on or after the
date of this Agreement, any Change in Law shall make it
unlawful or impossible for any Bank (or its Euro-Dollar
Lending Office) to make, maintain or fund its Euro-Dollar
Loans and such Bank shall so notify the Agent, the Agent
shall forthwith give notice thereof to the other Banks and
the Borrower, whereupon until such Bank notifies the
Borrower and the Agent that the circumstances giving rise to
such suspension no longer exist, the obligation of such Bank
to make Euro-Dollar Loans shall be suspended. Before giving
any notice to the Agent pursuant to this Section, such Bank
shall designate a different Euro-Dollar Lending Office if
such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine
that it may not lawfully continue to maintain and fund any
of its outstanding Euro-Dollar Loans to maturity and shall
so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each
such Euro-Dollar Loan, together with accrued interest
thereon. Concurrently with prepaying each such Euro-Dollar
Loan, the Borrower shall borrow a Base Rate Loan in an equal
principal amount from such Bank (on which interest and
principal shall be payable contemporaneously with the
related Euro-Dollar Loans of the other Banks), and such Bank
shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return.
(a) If on or after (x) the date of this Agreement, in the
case of any Committed Loan or any obligation to make
Committed Loans, or (y) the date of the related Money Market
Quote, in the case of any Money Market Loan, any Change in
Law shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed
by the Board of Governors of the Federal Reserve System, but
excluding (i) with respect to any CD Loan any such
requirement included in an applicable Domestic Reserve
Percentage and (ii) with respect to any Euro-Dollar Loan any
such requirement included in an applicable Euro-Dollar
Reserve Percentage), special deposit, insurance assessment
(excluding, with respect to any CD Loan, any such
requirement reflected in an applicable Assessment Rate) or <PAGE>
<PAGE>83
similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Bank (or its
Applicable Lending Office) or shall impose on any Bank (or
its Applicable Lending Office) or on the United States
market for certificates of deposit or the London interbank
market any other condition affecting its Fixed Rate Loans,
its Note or its obligation to make Fixed Rate Loans and the
result of any of the foregoing is to increase the cost to
such Bank (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Loan, or to reduce the amount of
any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its
Note with respect thereto, by an amount deemed by such Bank
to be material, then, within 15 days after demand by such
Bank (with a copy to the Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction,
provided that the Borrower's obligation to pay such Bank
shall be limited to the cost or reduction that is
attributable to the period commencing 90 days prior to the
date on which such Bank gave notice to the Borrower pursuant
to Section 8.03(c) of the event entitling such Bank to such
compensation.
(b) If any Bank shall have determined that, after
the date of this Agreement, any Change in Law regarding
capital adequacy has or would have the effect of reducing
the rate of return on capital of such Bank (or its Parent)
as a consequence of such Bank's obligations hereunder to a
level below that which such Bank (or its Parent) could have
achieved but for such Change in Law (taking into
consideration its policies with respect to capital adequacy)
by an amount deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank (with
a copy to the Agent), the Borrower shall pay to such Bank
such additional amount or amounts as will compensate such
Bank (or its Parent) for such reduction, provided that the
Borrower's obligation to pay such Bank (or its Parent) shall
be limited to the reduction that is attributable to the
period commencing 90 days prior to the date on which such
Bank gave notice to the Borrower pursuant to Section 8.03(c)
of the event entitling such Bank (or its Parent) to such
compensation.
(c) Each Bank will promptly notify the Borrower
and the Agent of any event of which it has knowledge,
occurring after the date of this Agreement, which will
entitle such Bank (or its Parent) to compensation pursuant
to this Section and will designate a different Applicable
Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in <PAGE>
<PAGE>84
the judgment of such Bank, be otherwise disadvantageous to
such Bank. A certificate of any Bank claiming compensation
under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount,
such Bank may use any reasonable averaging and attribution
methods.
SECTION 8.04. Taxes. (a) If, as a result of a
Change in Law after the date of this Agreement (or the date
of the related Money Market Quote, in the case of payments
with respect to any Money Market Loan), any Tax (as defined
below) is imposed on any payment by the Borrower to or for
the account of any Bank, any LC Issuing Bank or the Agent
hereunder or under any Note (a "Payment"), or the amount of
any such Tax is increased, and as a result thereof the
aggregate amount of Taxes payable with respect to Payments
to or for the account of such Bank or LC Issuing Bank or the
Agent is increased (the amount by which such Taxes are
increased as a result of such Change in Law being herein
called "Additional Tax"), the Borrower shall indemnify such
Bank or LC Issuing Bank or the Agent (as the case may be)
for such Additional Tax and otherwise make payments in
respect thereof as provided in this Section 8.04. As used
herein, the term "Tax" means any tax, duty, levy, import,
deduction, charge or withholding, or any liability with
respect thereto, excluding, in the case of each Bank, each
LC Issuing Bank and the Agent, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction under
the laws of which such Bank or LC Issuing Bank or the Agent
(as the case may be) is organized or managed or any
political subdivision thereof and, in the case of each Bank,
taxes imposed on its income, and franchise or similar taxes
imposed on it, by the jurisdiction of such Bank's Applicable
Lending Office or any political subdivision thereof.
(b) To the extent permitted by applicable law,
the Borrower shall make all Payments free and clear of, and
without deduction for, Taxes. If the Borrower shall be
required by applicable law to deduct any Taxes from or in
respect of any Payment to any Bank or LC Issuing Bank or the
Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 8.04) such Bank or LC Issuing Bank or the Agent (as
the case may be) receives an amount equal to the sum it
would have received had no such deductions been made with
respect to any Additional Taxes, (ii) the Borrower shall
make all deductions required by applicable law, (iii) the
Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with <PAGE>
<PAGE>85
applicable law and (iv) the Borrower shall furnish to the
Agent, at its address referred to in Section 9.01, the
original or a certified copy of a receipt evidencing payment
thereof.
(c) In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes and any other
excise or property taxes, or charges or similar levies which
arise from any payment made hereunder or under any Note or
from the execution or delivery of, or otherwise with respect
to, this Agreement or any Note (hereinafter referred to as
"Other Taxes").
(d) The Borrower agrees to indemnify each Bank
and LC Issuing Bank and the Agent for the full amount of
Additional Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by
any jurisdiction on amounts payable under this Section 8.04)
paid by such Bank or LC Issuing Bank or the Agent (as the
case may be) and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made
within 30 days from the date such Bank or LC Issuing Bank or
the Agent (as the case may be) makes demand therefor.
(e) Each Bank or LC Issuing Bank organized under
the laws of a jurisdiction outside the United States, on or
prior to the date of its execution and delivery of this
Agreement in the case of each Bank or LC Issuing Bank listed
on the signature pages hereof and on or prior to the date on
which it becomes a Bank in the case of each other Bank, and
from time to time thereafter if requested in writing by the
Borrower or the Agent (but only so long as such Bank or LC
Issuing Bank remains lawfully able to do so), shall provide
each of the Borrower and the Agent with Internal Revenue
Service form 1001 or 4224 and form W-8 or W-9, as
appropriate, or any successor forms prescribed by the
Internal Revenue Service, certifying that such Bank or LC
Issuing Bank is entitled to benefits under an income tax
treaty to which the United States is a party which reduces
the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this
Agreement is effectively connected with the conduct of a
trade or business in the United States.
(f) For any period with respect to which a Bank
or LC Issuing Bank has failed to provide the Borrower with
the appropriate form pursuant to Section 8.04(e) (unless
such form can no longer be provided due to a Change in Law
after the date on which a form originally was required to be
provided by such Bank or LC Issuing Bank), such Bank or LC <PAGE>
<PAGE>86
Issuing Bank shall not, except to the extent that such
failure can be cured without prejudice to the Borrower, be
entitled to indemnification under Section 8.04(a) with
respect to Taxes imposed by the United States; provided that
should a Bank or LC Issuing Bank, which is otherwise exempt
from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps as
such Bank or LC Issuing Bank shall reasonably request to
assist such Bank to recover such Taxes.
(g) If the Borrower is required to pay additional
amounts to or for the account of any Bank pursuant to this
Section 8.04, then such Bank will change the jurisdiction of
its Applicable Lending Office so as to eliminate or reduce
any such additional payment which may thereafter accrue if
such change, in the judgment of such Bank, is not otherwise
disadvantageous to such Bank.
SECTION 8.05. Base Rate Loans Substituted for
Affected Fixed Rate Loans. (a) If (i) the obligation of
any Bank to make Euro-Dollar Loans has been suspended
pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03(a) or 8.04 with respect to
its CD Loans or Euro-Dollar Loans and the Borrower shall, by
at least five Euro-Dollar Business Days' prior notice to
such Bank through the Agent, have elected that the provi-
sions of this Section 8.05(a) shall apply to such Bank,
then, unless and until such Bank notifies the Borrower that
the circumstances giving rise to such suspension or demand
for compensation no longer apply:
(x) all Loans which would otherwise be made by
such Bank as CD Loans or Euro-Dollar Loans, as the case
may be, shall be made instead as Base Rate Loans (on
which interest and principal shall be payable
contemporaneously with the related Fixed Rate Loans of
the other Banks), and
(y) after each of its CD Loans or Euro-Dollar
Loans, as the case may be, has been repaid, all
payments of principal which would otherwise be applied
to repay such Fixed Rate Loans shall be applied to
repay its Base Rate Loans instead.
(b) If (i) any Bank has demanded compensation
under Section 8.03 with respect to its CD Loans or Euro-
Dollar Loans or (ii) the Borrower has become obligated to
pay any Taxes or other amounts to or for the account of any
Bank pursuant to Section 8.04, and the Borrower shall, by at
least five Euro-Dollar Business Days' prior notice to the <PAGE>
<PAGE>87
Banks through the Agent, have elected that the provisions of
this Section 8.05(b) shall apply to all of the Banks, then
the Borrower shall, on the fifth Euro-Dollar Business Day
following such notice, prepay in full the then outstanding
principal amount of each outstanding Euro-Dollar Loan or CD
Loan, as the case may be, of each Bank, together with
accrued interest thereon.
SECTION 8.06. Substitution of Bank. If (i) the
obligation of any Bank to make Euro-Dollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank has
given notice of an event entitling such Bank (or its Parent)
to compensation under Section 8.03 or 8.04, the Borrower
shall have the right, with the assistance of the Agent, to
seek a mutually satisfactory substitute bank or banks (which
may be one or more of the Banks) to purchase the Note and
assume the Commitment of such Bank.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and
other communications to any party hereunder shall be in
writing (including bank wire, telex, facsimile transmission
or similar writing) and shall be given to such party: (x)
in the case of the Borrower, the Co-Agent or the Agent, at
its address, facsimile number or telex number set forth on
the signature pages hereof, (y) in the case of any Bank or
LC Issuing Bank, at its address, facsimile number or telex
number set forth in its Administrative Questionnaire or (z)
in the case of any party, at such other address, facsimile
number or telex number as such party may hereafter specify
for the purpose by notice to the Agent and the Borrower.
Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section
and the appropriate answerback is received, (ii) if given by
mail, three Domestic Business Days after such communication
is deposited in the mails with first class postage prepaid,
addressed as aforesaid, (iii) if given by facsimile
transmission, when such facsimile is transmitted to the
facsimile number specified in or pursuant to this Section
and the sender thereof requests and receives confirmation of
transmission or (iv) if given by any other means, when
delivered at the address specified in this Section; provided
that notices to the Agent or the LC Issuing Banks under
Article II or Article VIII shall not be effective until
received.
<PAGE>
<PAGE>88
SECTION 9.02. No Waivers. No failure or delay by
the Agent, any Bank or any LC Issuing Bank in exercising any
right, power or privilege hereunder or under any Note or
under the Security Agreement shall operate as a waiver
thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights
and remedies provided herein and in the Security Agreement
shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 9.03. Expenses; Indemnification. (a)
The Borrower shall pay (i) all reasonable out-of-pocket
expenses of the Agent, including fees and disbursements of
one firm of special counsel for the Agent, in connection
with the preparation of this Agreement or the Security
Agreement, any waiver or consent hereunder or thereunder or
any amendment hereof or thereof or any Default or any event
or condition reasonably alleged by any Bank to be a possible
Default hereunder and (ii) if an Event of Default occurs,
all reasonable out-of-pocket expenses incurred by the Agent
or any Bank, including fees and disbursements of counsel, in
connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings
resulting therefrom.
(b) The Borrower shall indemnify the Agent, the
Co-Agent and each Bank, their respective affiliates and the
respective directors, officers, agents and employees of the
foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind (including, without
limitation, the reasonable fees and disbursements of counsel
for any Bank (including allocated costs of internal counsel
and disbursements of internal counsel) in connection with
any investigative, administrative or judicial proceeding,
whether or not such Indemnitee shall be designated a party
thereto), relating to or arising out of any actual or
proposed use of proceeds of Loans hereunder for the purpose
of acquiring equity securities of any other Person; provided
that no Indemnitee shall have the right to be indemnified
hereunder for such Indemnitee's own gross negligence or
willful misconduct as finally determined by a court of
competent jurisdiction.
(c) If any proceeding shall be brought or, to the
knowledge of any Indemnitee threatened, against such
Indemnitee by reason of or in connection with which such
Indemnitee may claim indemnification pursuant to this
Section 9.03, such Indemnitee shall promptly notify the
Borrower thereof in writing. Such Indemnitee shall have the
<PAGE>
<PAGE>89
right to employ its own counsel and to determine its own
defense in such proceeding, but the reasonable fees and
expenses thereof (including allocated costs of internal
counsel and disbursements of internal counsel) shall be paid
by the Borrower. The Borrower shall not be liable for any
settlement of any such proceeding effected without its
consent, which consent shall not be unreasonably withheld.
Nothing in this Section 9.03 is intended to limit the
obligations of the Borrower under any other provision of
this Agreement.
SECTION 9.04. Sharing of Set-Offs. Each Bank
agrees that if it shall, by exercising any right of set-off
or counterclaim or otherwise, receive (i) payment of a
proportion of the aggregate amount of principal and interest
due with respect to any Note held by it which is greater
than the proportion received by any other Bank in respect of
the aggregate amount of principal and interest due with
respect to any Note held by such other Bank or (ii) payment
of a proportion of its participation in the LC Liabilities
which is greater that the proportion received by any other
Bank in respect of its participation in the LC Liabilities,
the Bank receiving such proportionately greater payment
shall purchase such participations in the Notes or the LC
Liabilities (as the case may be) held by the other Banks,
and such other adjustments shall be made, as may be required
so that all such payments of principal and interest with
respect to the Notes held by the Banks shall be shared by
the Banks pro rata and all such payments with respect to the
LC Liabilities shall be shared pro rata by the Banks
participating therein; provided that nothing in this Section
shall impair the right of any Bank to exercise any right of
set-off or counterclaim it may have and to apply the amount
subject to such exercise to the payment of indebtedness of
the Borrower other than its indebtedness under the Notes and
the LC Liabilities. The Borrower agrees, to the fullest
extent it may effectively do so under applicable law, that
any holder of a participation in a Note or the LC
Liabilities, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such
participation as fully as if such holder of a participation
were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.05. Amendments and Waivers. Any
provision of this Agreement or the Notes may be amended or
waived if, but only if, such amendment or waiver is in
writing and is signed by the Borrower and the Required Banks
(and, if the rights or duties of the Agent, the Co-Agent or
the LC Issuing Banks are affected thereby, by the Agent, the
<PAGE>
<PAGE>90
Co-Agent or the LC Issuing Banks, as the case may be);
provided that no such amendment or waiver shall, unless
signed by all the Banks, (i) increase or decrease the
Commitment of any Bank (except for a ratable decrease in the
Commitments of all Banks) or subject any Bank to any
additional obligation, (ii) reduce the principal of or rate
of interest on any Loan or Reimbursement Obligation or any
fees hereunder, (iii) postpone the date fixed for any
payment of principal of or interest on any Loan or
Reimbursement Obligation or any fees hereunder or for any
termination or scheduled reduction of any Commitment or (iv)
change the percentage of the Commitments, the Outstanding
Credit Exposures or the Outstanding LC Exposures or of the
aggregate unpaid principal amount of the Loans, or the
number of Banks, which shall be required for the Banks or
any of them to take any action under this Section or any
other provision of this Agreement.
SECTION 9.06. Successors and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower shall not
assign or otherwise transfer any of its rights under this
Agreement (except pursuant to a merger permitted by clause
(B) of Section 5.05) without the prior written consent of
all the Banks. Except pursuant to such a merger, the
Borrower shall not assign or otherwise transfer any of its
rights under the Security Agreement without the prior
written consent of all the Banks.
(b) Any Bank may at any time grant to one or more
banks or other institutions (each a "Participant") partici-
pating interests in its Commitment or any or all of its
Loans or its Outstanding LC Exposure. In the event of any
such grant by a Bank of a participating interest to a
Participant, whether or not upon notice to the Borrower and
the Agent, such Bank shall remain responsible for the
performance of its obligations hereunder, and the Borrower
and the Agent shall continue to deal solely and directly
with such Bank in connection with such Bank's rights and
obligations under this Agreement and the Security Agreement.
Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the
obligations of the Borrower under this Agreement and the
Security Agreement including, without limitation, the right
to approve any amendment, modification or waiver of any
provision of this Agreement or the Security Agreement;
provided that such participation agreement may provide that
such Bank will not agree to any amendment, modification or
waiver of this Agreement described in clause (i), (ii) or <PAGE>
<PAGE>91
(iii) of Section 9.05 or any amendment, modification or
waiver of the Security Agreement described in the proviso to
Section 22 thereof without the consent of the Participant.
The Borrower agrees that each Participant shall, to the
extent provided in its participation agreement, be entitled
to the benefits of Article VIII with respect to its
participating interest. An assignment or other transfer
which is not permitted by subsection (c) or (d) below shall
be given effect for purposes of this Agreement only to the
extent of a participating interest granted in accordance
with this subsection (b).
(c) Any Bank may at any time assign to one or
more banks or other institutions (each an "Assignee") all,
or a proportionate part of all, of its rights and
obligations under this Agreement and the Notes, and such
Assignee shall assume such rights and obligations, pursuant
to an Assignment and Assumption Agreement in substantially
the form of Exhibit E hereto (an "Assignment and Assumption
Agreement") executed by such Assignee and such transferor
Bank, with (and subject to) the subscribed consent of the
Borrower, the LC Issuing Banks and the Agent (which consents
shall not be unreasonably withheld); provided that (i) if an
Assignee is another Bank or is an Affiliate of such
transferor Bank, no such consent shall be required and (ii)
outstanding Money Market Loans shall be excluded from any
such assignment. No assignment of a proportionate part of
the rights and obligations of a Bank under this Agreement
and the Notes may be made unless the "Assigned Amount" set
forth in the related Assignment and Assumption Agreement
equals or exceeds $5,000,000. Upon execution and delivery
of an Assignment and Assumption Agreement and payment by
such Assignee to such transferor Bank of an amount equal to
the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights and obligations of a
Bank with a Commitment as set forth in such Assignment and
Assumption Agreement, and the transferor Bank shall be
released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall
be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the
Agent and the Borrower shall make appropriate arrangements
so that, if required, a new Note is issued to the Assignee.
In connection with any such assignment, the transferor Bank
shall pay to the Agent an administrative fee for processing
such assignment in the amount of $2,500. If the Assignee is
not incorporated under the laws of the United States of
America or a state thereof, it shall deliver to the Borrower
and the Agent certification as to whether and to what extent
<PAGE>
<PAGE>92
it is exempt from deduction or withholding of United States
federal income taxes, as required by Section 8.04.
(d) Any Bank may at any time assign all or any
portion of its rights under this Agreement and its Note to a
Federal Reserve Bank. No such assignment shall release the
transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee
of any Bank's rights shall be entitled to receive any
greater payment under Section 8.03 or 8.04 than such Bank
would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the
provisions of Section 8.02, 8.03 or 8.04 requiring such Bank
to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances
giving rise to such greater payment did not exist.
(f) If any Reference Bank assigns its Note to an
unaffiliated institution, the Agent shall, with the consent
of the Borrower and the Required Banks, appoint another Bank
to act as a Reference Bank hereunder.
SECTION 9.07. Confidentiality. Each of the
Agent, the Co-Agent, the LC Issuing Banks and the Banks
agrees to exercise all reasonable efforts to keep any
proprietary or financial information delivered or made
available by the Borrower to it, which is clearly indicated
to be confidential information, confidential from anyone
other than (x) the officers, directors and employees of the
Agent, the Co-Agent, any Bank or LC Issuing Bank or any of
their respective Affiliates who have a need to know such
information in accordance with customary banking practices
and (y) agents of, or persons retained by, the Agent, the
Co-Agent or any Bank or LC Issuing Bank who are or are
expected to become engaged in evaluating, approving,
structuring or administering the Loans, and who, in the case
of (x) and (y), receive such information having been made
aware of the restrictions set forth in this Section;
provided that nothing herein shall prevent the Agent, the
Co-Agent or any Bank or LC Issuing Bank from disclosing such
information (i) to the Agent, the Co-Agent or any Bank or LC
Issuing Bank in connection with the transactions
contemplated by this Agreement or the Security Agreement,
(ii) upon the order of any court or administrative agency or
otherwise pursuant to subpoena or similar procedure or in
accordance with law, (iii) upon the request or demand of any
regulatory agency or authority having jurisdiction over the
Agent, the Co-Agent or any Bank or LC Issuing Bank, (iv)
which has been publicly disclosed, (v) to the extent <PAGE>
<PAGE>93
reasonably required in connection with any litigation to
which the Agent, the Co-Agent, any Bank or LC Issuing Bank
or their respective Affiliates may be a party, (vi) to the
Agent's, the Co-Agent's or any Bank's or LC Issuing Bank's
legal counsel and independent auditors, (vii) to any actual
or proposed Participant or Assignee of all or part of such
Bank's rights hereunder which has agreed in writing to be
bound by the provisions of this Section 9.07, (viii) in
connection with the exercise of any remedy hereunder or
under the Security Agreement and (ix) with the prior written
consent of the Borrower. The Agent, the Co-Agent and each
Bank and LC Issuing Bank shall attempt in good faith, to the
extent permitted by applicable law, (i) to notify the
Borrower of any disclosure of such information referred to
in clause (ii) of the preceding sentence and (ii) upon a
reasonable and timely request by the Borrower, apply (at the
Borrower's expense) for an appropriate protective order to
preserve the confidentiality of such information or limit
the disclosure thereof.
SECTION 9.08. Governing Law; Submission to
Jurisdiction. This Agreement and each Note shall be
governed by and construed in accordance with the laws of the
State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of any New
York State court sitting in New York City for purposes of
all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The
Borrower irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to
the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought
in such a court has been brought in an inconvenient forum.
SECTION 9.09. Counterparts; Integration. This
Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement
and understanding among the parties hereto and supersedes
any and all prior agreements and understandings, oral or
written, relating to the subject matter hereof.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the undersigned parties hereto
have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first
above written.
PACIFICORP HOLDINGS, INC.
By ____________________________
Title:
700 N.E. Multnomah, Suite 1600
Portland, Oregon 97232-4116
Facsimile number: 503-731-2092
Commitments
- -----------
$20,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By __________________________
Title:
$20,000,000 J. P. MORGAN DELAWARE
By __________________________
Title:
$40,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By __________________________
Title:
$40,000,000 ABN AMRO BANK N.V.
By __________________________
Title:
<PAGE>
<PAGE>
$40,000,000 CANADIAN IMPERIAL BANK
OF COMMERCE, NEW YORK AGENCY
By __________________________
Title:
$40,000,000 FIRST INTERSTATE BANK
OF OREGON, N.A.
By __________________________
Title:
$40,000,000 UNITED STATES NATIONAL BANK
OF OREGON
By __________________________
Title:
$25,000,000 THE BANK OF NEW YORK
By __________________________
Title:
$25,000,000 CREDIT SUISSE
By __________________________
Title:
By __________________________
Title:
$25,000,000 FUJI BANK
By __________________________
Title:
<PAGE>
<PAGE>
$25,000,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By __________________________
Title:
$20,000,000 BANK OF HAWAII
By __________________________
Title:
$20,000,000 THE BANK OF NOVA SCOTIA
By __________________________
Title:
$20,000,000 THE BANK OF TOKYO, LTD.
By __________________________
Title:
$20,000,000 CHEMICAL BANK
By __________________________
Title:
$20,000,000 CITIBANK, N.A.
By __________________________
Title:
<PAGE>
<PAGE>
$20,000,000 THE LONG TERM CREDIT BANK
OF JAPAN, LTD.
By __________________________
Title:
$20,000,000 NATIONAL WESTMINSTER BANK PLC
By __________________________
Title:
$20,000,000 THE SUMITOMO BANK, LIMITED
By __________________________
Title:
Total Commitments
$500,000,000
============
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By __________________________
Title:
60 Wall Street
New York, New York 10260
Attention: Loan Department
Telex number: 177615
<PAGE>
<PAGE>
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Co-Agent
By __________________________
Title:
1455 Market Street,
12th Floor
San Francisco, California 94103
Attention: Kevin Leader,
Vice President,
Global Agency #5596
Facsimile: (415) 622-4894
Telephone: (415) 953-0108
<PAGE>
<PAGE>
SCHEDULES AND EXHIBITS OMITTED
