CONFORMED COPY
AMENDMENT No. 1 and CONSENT dated as of March 3,
1998 (this "Consent"), to the Credit Agreement dated as
of February 3, 1998 (the "Credit Agreement"), among
PACIFICORP POWERCOAL LLC, an Oregon limited liability
company (the "Borrower"), the financial institutions
party thereto from time to time (the "Lenders"),
CITIBANK, N.A., a national banking association
("Citibank"), as paying agent (in such capacity, the
"Paying Agent") for the Lenders, and as swingline
lender (in such capacity, the "Swingline Lender") and
issuing bank (in such capacity, the "Issuing Bank"),
and CITICORP USA, INC., a Delaware corporation
("Citicorp USA"), as collateral agent (in such
capacity, the "Collateral Agent") for the Lenders.
A. The Borrower has requested that the Lenders (a) amend the
definition of the term "PA Facility Agreement" in Section 1.01 of the Credit
Agreement and (b) consent to an increase in the price per Share to be paid by PA
pursuant to the Offer.
B. The Lenders are willing so to amend the Credit Agreement and grant
such consent on the terms and subject to the conditions herein contained.
C. Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment. Section 1.01 of the Credit Agreement is hereby
amended by inserting in the definition of the term "PA Facility Agreement",
immediately following the date "3 February, 1998," and before the word "among"
on the first line therein, the words ", as amended by a letter agreement dated 3
March, 1998,".
SECTION 2. Consent. The Lenders hereby consent to the increase in the
price per Share to be paid by PA pursuant to the Offer, from the purchase price
of 765 ▇▇▇▇▇ net per Share to up to a purchase price of 820 ▇▇▇▇▇ net per Share.
SECTION 3. Representations and Warranties. To induce the other parties
hereto to enter into this Consent, the Borrower represents and warrants to each
of the Lenders, the Paying Agent, the Issuing Bank and the Collateral Agent
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that, after giving effect to this Consent, (a) the representations and
warranties set forth in Article III of the Credit Agreement are true and correct
in all material respects on and as of the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date and (b) no
Default or Event of Default has occurred and is continuing.
SECTION 4. Conditions to Effectiveness. This Consent shall become
effective on the date on which the Paying Agent shall have received counterparts
of this Consent that, when taken together, bear the signatures of the Borrower
and the Lenders.
SECTION 5. Effect of Consent. Except as expressly set forth herein,
this Consent shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of the Lenders, the
Paying Agent, the Issuing Bank, the Collateral Agent or the Borrower under the
Credit Agreement or any other Loan Document, and shall not alter, modify, amend
or in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Loan Document, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect. Nothing herein shall be deemed to entitle the Borrower to a consent
to, or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document in similar or different circumstances.
SECTION 6. Counterparts. This Consent may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts constitute but one and the same instrument. Delivery of any
executed counterpart of a signature page of this Consent by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.
SECTION 7. APPLICABLE LAW. THIS CONSENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Headings. The headings of this Consent are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Consent to be
duly executed by their duly authorized officers, all as of the date and year
first above written.
PACIFICORP POWERCOAL LLC,
by PacifiCorp Group Holdings
Company, its Member,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer
CITIBANK, N.A., individually as a
Lender and as Paying Agent,
Swingline Lender and Issuing Bank,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
CITICORP USA, INC., as Collateral
Agent,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
individually as a Lender,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, individually as a Lender,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
Title: Vice President
