EXHIBIT 4(d)-1
AMENDMENT NO. 1
TO
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO RECEIVABLES PURCHASE AGREEMENT dated as of
June 20, 2003 (this "Amendment") is entered into among AVISTA RECEIVABLES CORP.
(the "Seller"), Avista Corporation (the "Servicer"), EagleFunding Capital
Corporation (the "Conduit Purchaser"), Fleet National Bank (the "Committed
Purchaser"), and Fleet Securities, Inc. (the "Administrator"). Capitalized terms
used herein but not defined herein shall have the meanings provided in the
Receivables Purchase Agreement defined below.
W I T N E S S E T H
WHEREAS, the Seller, the Servicer, the Conduit Purchaser, the
Committed Purchaser and the Administrator are parties to that certain
Receivables Purchase Agreement dated as of May 29, 2002 (as amended, restated,
supplemented or otherwise modified from time to time, the "Receivables Purchase
Agreement");
WHEREAS, the Seller, the Servicer, the Conduit Purchaser, the
Committed Purchaser and the Administrator have agreed to amend the Receivables
Purchase Agreement on the terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the premises set forth above,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Seller, the Servicer, the Conduit Purchaser,
the Committed Purchaser and the Administrator hereby agree as follows:
SECTION 1. Amendment. Subject to the fulfillment of the condition
precedent set forth in Section 2 below, the Receivables Purchase Agreement
hereby is amended as follows:
1.1 Section 7.01(c) of the Receivables Purchase Agreement is amended
to insert the following proviso immediately prior to the period at the end
thereof:
provided, further that if Parent's senior unsecured long-term debt
is rated below BBB- by S&P or below Baa3 by Xxxxx'x, Seller and
Parent shall be obligated to pay for two such reviews in each
calendar year.
1.2 Section 8.01 of the Receivables Purchase Agreement is amended to
add the following new subsection (f) at the end thereof:
(f) Third Party Collections Xxxxxxxxxx.Xx the event that
Parent's senior unsecured long-term debt is rated below BB+ by S&P
or below Ba1 by Xxxxx'x and Parent is then acting as Servicer, at
the request of the Administrator, Parent shall promptly (and, in no
event, more than 60 days following such request) obtain the services
of a third party acceptable to the Administrator to process all
Collections in respect of the Pool Receivables received into a
Lock-Box in accordance with the terms of this Agreement.
1.3 The definition of "Eligible Receivable" set forth in the
Appendix to the Receivables Purchase Agreement is amended to (i) delete the word
"and" from the end of clause (o), (ii) delete the period at the end of clause
(p) and substitute "; and" therefor, and (iii) add the following new clause (q)
at the end thereof:
(q) the Obligor of which does not sell electric capacity
and/or energy to the Originator in the wholesale market.
1.4 The definition of "Net Pool Balance" set forth in the Appendix
to the Receivables Purchase Agreement is amended and restated as follows:
"Net Pool Balance" at any time means an amount equal to (i)
the aggregate Unpaid Balance of the Eligible Receivables in the
Receivables Pool at such time, minus (ii) the aggregate amount by
which the aggregate Unpaid Balance of the Eligible Receivables of
each Obligor and its Affiliates exceeds the Concentration Limit for
such Obligor at such time, minus (iii) the aggregate amount by which
the aggregate Unpaid Balance of all Receivables owed by Governmental
Authorities exceeds 10% of the amount described in the foregoing
clause (i).
1.5 The definition of "Regulatory Change" set forth in the Appendix
to the Receivables Purchase Agreement is amended to delete clause (a)(iii)
thereof in its entirety and to substitute the following therefor:
(iii) GAAP or regulatory accounting principles applicable to
such Affected Party and affecting the application to such Affected
Party of any law, regulation, interpretation, directive, requirement
or request referred to in clause (a)(i) or (a)(ii) above (for the
avoidance of doubt, any change in (or the adoption, implementation,
change in phase-in or commencement of effectiveness of) FASB
Interpretation No. 46 shall constitute a Regulatory Change
hereunder); or
1.6 The definition of "Servicer's Fee Rate" set forth in the
Appendix to the Receivables Purchase Agreement is amended to delete the
reference therein to "0.50%" and substitute "1.0%" therefor.
SECTION 2. Condition Precedent. The effectiveness of this Amendment
is subject to the satisfaction of the condition precedent that the Administrator
shall have received (which receipt may be by facsimile transmission)
counterparts of this Amendment, executed by the Seller, the Servicer, the
Conduit Purchaser, the Committed Purchaser and the Administrator.
SECTION 3. Representations and Warranties. Each of the Seller and
the Servicer hereby represents and warrants that (i) this Amendment constitutes
its legal, valid and binding obligation, enforceable against such party in
accordance with its terms, (ii) before and after giving effect to this
Amendment, the representations and warranties of each such party, respectively,
set forth in Article 6 of the Receivables Purchase Agreement are true and
correct in all material respects with the same effect as if made on the date
hereof, except to the extent such representations and warranties expressly
relate to an earlier date. The Seller further represents
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and warrants that before and after giving effect to this Amendment, no event has
occurred and is continuing that constitutes a Liquidation Event or an Unmatured
Liquidation Event.
SECTION 4. Reference to and Effect on the Receivables Purchase
Agreement.
4.1 Upon the effectiveness of this Amendment, (i) each reference in
the Receivables Purchase Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import shall mean and be a reference to the
Receivables Purchase Agreement, as amended hereby, and (ii) each reference to
the Receivables Purchase Agreement in any other Transaction Document or any
other document, instrument or agreement executed and/or delivered in connection
therewith, shall mean and be a reference to the Receivables Purchase Agreement
as amended hereby.
4.2 Except as specifically amended above, the terms and conditions
of the Receivables Purchase Agreement, of all other Transaction Documents and
any other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect and are hereby
ratified and confirmed.
4.3 The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the
Administrator, the Conduit Purchaser or the Committed Purchaser under the
Receivables Purchase Agreement or any other Transaction Document or any other
document, instrument or agreement executed in connection therewith, nor
constitute a waiver of any provision contained therein, in each case except as
specifically set forth herein.
SECTION 5. 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.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Section Titles. The section titles contained in this
Amendment are and shall be without substance, meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
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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.
AVISTA RECEIVABLES CORP.,
as Seller
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
AVISTA CORPORATION,
as Servicer
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
Signature Page to
Amendment No. 1 to Receivables Purchase Agreement
EAGLEFUNDING CAPITAL CORPORATION,
as Conduit Purchaser
By: Fleet Securities, Inc., as attorney-in-fact
By: /s/ Xxxx X. Xxxxxxx III
------------------------------------------
Name: Xxxx X. Xxxxxxx III
Title: Managing Director
Signature Page to
Amendment No. 1 to Receivables Purchase Agreement
FLEET NATIONAL BANK,
as Committed Purchaser
By: Fleet Securities, Inc.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
as agent for Fleet National Bank
Name: Xxxxx X. Xxxxxx
Title: Director
Signature Page to
Amendment No. 1 to Receivables Purchase Agreement
FLEET SECURITIES, INC.,
as Administrator
By: /s/ Xxxx X. Xxxxxxx III
-----------------------------------------
Name: Xxxx X. Xxxxxxx III
Title: Managing Director
Signature Page to
Amendment No. 1 to Receivables Purchase Agreement
