AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 4(a)
[EXECUTION DRAFT]
This AMENDMENT NO. 4, dated as of June 24, 2010 (this “Amendment”), is made by and among
TUCSON ELECTRIC POWER COMPANY, an Arizona corporation (the “Borrower”), the lenders listed on the
signature pages of this Amendment as “Lenders” (such lenders, together with their respective
permitted assignees from time to time, being referred to herein, collectively, as the “Lenders”),
and UNION BANK, N.A. (formerly known as Union Bank of California, N.A.), as administrative agent
for the Lenders (in such capacity, the “Administrative Agent”).
PRELIMINARY STATEMENT:
The Borrower, the Lenders, the Issuing Banks party thereto, The Bank of New York Mellon
(formerly known as The Bank of New York) and JPMorgan Chase Bank, N.A., as Co-Syndication Agents,
Xxxxx Fargo Bank, National Association and The Royal Bank of Scotland N.V. (formerly known as ABN
AMRO Bank N.V.), as Co-Documentation Agents, and the Administrative Agent previously entered into
that certain Amended and Restated Credit Agreement, dated as of August 11, 2006, as amended by
Amendment No. 1 thereto, dated as of September 1, 2006, Amendment No. 2 thereto, dated as of
May 30, 2008, and Amendment No. 3 thereto, dated as of September 16, 2008 (as so amended, the
“Existing Agreement”, as amended by this Amendment, the “Amended Agreement”, and as the Amended
Agreement may hereafter be amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”). The Borrower desires to amend Section 1.01 (Defined Terms) of the Existing
Agreement by modifying the defined term “Consolidated EBITDA” and adding certain definitions in
connection therewith. Each of the Borrower, the Required Lenders and the Administrative Agent has
agreed to such amendments, on the terms and conditions set forth herein. The parties therefore
agree as follows (capitalized terms used but not defined herein having the meanings assigned such
terms in the Existing Agreement):
SECTION 1. Amendments to Existing Agreement. The Existing Agreement is, effective as of the
date hereof and subject to the satisfaction of the conditions precedent set forth in Section 2
hereof, hereby amended as follows:
(a) Consolidated EBITDA. The definition of “Consolidated EBITDA” contained in Section 1.01 of
the Existing Agreement is hereby amended and restated in its entirety to read as follows:
“Consolidated EBITDA” means, for any fiscal period, with respect to the
Borrower and the Consolidated Subsidiaries, Consolidated Net Income for such period
plus, to the extend deducted in computing such Consolidated Net Income, without
duplication, the sum of (a) income tax expense, (b) interest expense, (c) depreciation and
amortization expense, (d) any extraordinary or non-recurring losses and (e) other noncash
items reducing Consolidated Net Income (other than items resulting from application of the
Borrower’s PPFAC and REST), minus, to the extent added in computing such
Consolidated Net Income, without duplication, the sum of (i) interest income, (ii) any
extraordinary or non-recurring gains and (iii) other noncash items increasing Consolidated
Net Income (other than items resulting from application of the Borrower’s PPFAC and REST),
all as determined on a consolidated basis in accordance with GAAP.
(b) Additional Definitions. The following definitions are hereby added to Section 1.01 of the
Existing Agreement in the appropriate alphabetical order:
“PPFAC” means the Purchased Power and Fuel Adjustment Clause, a
rate-adjustment mechanism approved by the ACC that provides for the recovery of the
Borrower’s retail fuel and purchased power costs.
“REST” means the Renewable Energy Standard Tariff, a rate-adjustment
mechanism approved by the ACC that provides for the recovery of the Borrowers’s renewable
energy program costs.
SECTION 2. Conditions of Effectiveness of Amendment. The amendment to the Existing Agreement
set forth in Section 1 hereof shall become effective as of the date hereof when, and only when, the
Administrative Agent shall have received (a) counterparts of this Amendment executed by the
Borrower, the Required Lenders and the Administrative Agent and (b) for the account of each Lender
that delivers an executed counterpart of this Amendment at or before 5:00 p.m., Los Angeles,
California time, on June 24, 2010, a non-refundable amendment fee of 0.05% of such Lender’s
Aggregate Commitment, in immediately available funds.
SECTION 3. Representations and Warranties of the Borrower. The Borrower represents and
warrants as follows:
(a) The execution and delivery by the Borrower of this Amendment, and the performance by the
Borrower of this Amendment and the Amended Agreement, are within the Borrower’s organizational
powers and have been duly authorized by all necessary corporate and, if required, stockholder action, and do not and
will not (i) violate any Requirement of Law, (ii) violate or result in a default under any
indenture, agreement or other instrument binding upon the Borrower or any of its Consolidated
Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by
the Borrower or any of its Consolidated Subsidiaries, or (iii) result in the creation or imposition
of any Lien on any asset of the Borrower or any of its Consolidated Subsidiaries, except Liens
created under the Loan Documents or under the Mortgage Indenture. This Amendment has been duly
executed and delivered by the Borrower.
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(b) The execution and delivery by the Borrower of this Amendment, and the performance by the
Borrower of this Amendment and the Amended Agreement, do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority, except as set
forth in Section 3.03(a) of the Existing Agreement.
(c) Each of this Amendment and the Amended Agreement constitutes a legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
(d) No Default or Event of Default has occurred and is continuing.
SECTION 4. Reference to and Effect on the Existing Agreement. (a) Upon the effectiveness of
this Amendment: (i) each reference in the Existing Agreement to “this Agreement”, “hereunder”,
“hereof” or words of like import referring to the Existing Agreement shall mean and be a reference
to the Credit Agreement; and (ii) each reference in any other Loan Document to “the Credit
Agreement”, “thereunder”, “thereof” or words of like import referring to the Existing Agreement
shall mean and be a reference to the Credit Agreement.
(b) Except as specifically amended or waived above, the Existing Agreement shall continue to
be in full force and effect and is hereby in all respects ratified and confirmed. Without limiting
the generality of the foregoing, the Security Documents and all of the Collateral described therein
do and shall continue to secure the payment of all Obligations.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the Lenders, the Issuing
Banks or the Administrative Agent under the Existing Agreement or any other Loan Document, nor
constitute a waiver of any provision of the Existing Agreement or any other Loan Document.
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SECTION 5. Costs and Expenses. The Borrower agrees to pay on demand all reasonable
out-of-pocket expenses of the Administrative Agent in connection with the preparation, negotiation, syndication, execution and delivery of this
Amendment and the other instruments and documents to be delivered hereunder, including, without
limitation, the reasonable fees, charges and disbursements of counsel to the Administrative Agent
with respect thereto and with respect to advising the Administrative Agent as to its rights and
responsibilities hereunder and thereunder, and all out-of-pocket expenses incurred by the
Administrative Agent, any Issuing Bank or any Lender (including, without limitation, the fees,
charges and disbursements of any counsel for the Administrative Agent, any Issuing Bank or any
Lender) in connection with the enforcement (whether through negotiations, legal proceedings or
otherwise) of this Amendment.
SECTION 6. Execution in Counterparts. This Amendment 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 to be an original and all of which taken together shall
constitute but one and the same instrument. In furtherance of the foregoing, it is understood and
agreed that signatures hereto submitted by facsimile or other electronic transmission shall be
deemed to be, and shall constitute, original signatures.
SECTION 7. Governing Law. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of the New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
| TUCSON ELECTRIC POWER COMPANY |
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| By | ||||
| Name: | ||||
| Title: | ||||
| UNION BANK, N.A. (formerly known as Union Bank of California, N.A.), as Administrative Agent and a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
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| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
S-2
| The Royal Bank of Scotland N.V. (formerly known as ABN
AMRO BANK N.V.), as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
S-3
| THE BANK OF NEW YORK MELLON, as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
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| JPMORGAN CHASE BANK, N.A., as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
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| BANK HAPOALIM B.M., as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
S-6
| BAYERISCHE LANDESBANK, NEW YORK BRANCH, as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
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| BNP PARIBAS, as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
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| COBANK, ACB, as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
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| COMERICA BANK (as successor to COMERICA WEST
INCORPORATED), as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
X-00
| XXXXXXXXXXX XX, XXX XXXX AND CAYMAN BRANCHES, as a
Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
X-00
| XXXXXXXX XXXX XX, XXX XXXX AND CAYMAN BRANCHES, as a
Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
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| KBC BANK, N.V., as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
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| LLOYDS TSB BANK PLC, as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
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| SOVEREIGN BANK, as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
S-15
| THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., NEW YORK BRANCH (as successor to UFJ BANK LIMITED), as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
S-16
| U.S. BANK NATIONAL ASSOCIATION, as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
S-17
| XXXXX FARGO, NATIONAL ASSOCIATION (as successor to
WACHOVIA BANK, NATIONAL ASSOCIATION), as a Lender |
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| By | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 4 to Tucson Electric Amended and Restated Credit Agreement
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