Exhibit 4(h)
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AMENDMENT NO. 2
Dated as of November 25, 2003
to the
CREDIT AGREEMENT
dated as of May 21, 2002
among
AVISTA CORPORATION,
THE BANKS PARTY HERETO,
WASHINGTON MUTUAL BANK,
as Managing Agent,
FLEET NATIONAL BANK, KEYBANK NATIONAL ASSOCIATION,
U.S. BANK, NATIONAL ASSOCIATION and XXXXX FARGO BANK,
as Documentation Agents,
UNION BANK OF CALIFORNIA, N.A.,
as Syndication Agent,
and
THE BANK OF NEW YORK,
as Administrative Agent and Issuing Bank
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BNY CAPITAL MARKETS, INC. and UNION BANK OF CALIFORNIA, N.A.
Lead Arrangers and Book Managers
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AMENDMENT NO. 2
Dated as of November 25, 2003
to
CREDIT AGREEMENT
Dated as of May 21, 2002
AVISTA CORPORATION, a Washington corporation, the Banks listed on the
signature pages hereof, WASHINGTON MUTUAL BANK, as Managing Agent, FLEET
NATIONAL BANK, KEYBANK NATIONAL ASSOCIATION, U.S. BANK, NATIONAL ASSOCIATION and
XXXXX FARGO BANK, as Documentation Agents, UNION BANK OF CALIFORNIA, N.A., as
Syndication Agent, and THE BANK OF NEW YORK, as Administrative Agent and Issuing
Bank, agree as follows:
1. CREDIT AGREEMENT. Reference is made to the Credit Agreement, dated
as of May 21, 2002, among Avista Corporation, a Washington corporation, the
Banks listed in Schedule 2.01 thereto, KeyBank National Association and
Washington Mutual Bank, as Co-Agents, U.S. Bank, National Association, as
Managing Agent, Fleet National Bank and Xxxxx Fargo Bank, as Documentation
Agents, Union Bank of California, N.A., as Syndication Agent, and The Bank of
New York, as Administrative Agent and Issuing Bank, as amended by that certain
Amendment No. 1 dated as of May 13, 2003 to the Credit Agreement (as so amended,
the "CREDIT AGREEMENT"). Terms defined in the Credit Agreement and not otherwise
defined herein are used herein as therein defined.
2. AMENDMENTS. Subject to satisfaction of the conditions precedent set
forth in Section 4 below, effective as of the date hereof (the "EFFECTIVE
DATE"), the Credit Agreement shall be amended as follows:
(a) Section 1.01 of the Credit Agreement shall be amended by inserting
the following defined terms in alphabetical order:
"FASB INTERPRETATION NO. 46" shall mean Financial Accounting Standards
Board (FASB) Interpretation No. (FIN) 46, Consolidation of Variable
Interest Entities, an Interpretation of Accounting Research Bulletin
No. 51.
"SFAS NO. 150" shall mean Financial Accounting Standards Board (FASB)
Statement of Financial Accounting Standards No. 150, Accounting for
Certain Financial Instruments with Characteristics of Both Liabilities
and Equity.
(b) Section 6.05 of the Credit Agreement shall be amended by inserting
the following at the end of such section:
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Notwithstanding anything herein to the contrary, the Borrower's
compliance with the terms of this Section 6.05 shall be calculated
without giving effect to SFAS No. 150 and FASB Interpretation No. 46.
(b) Section 6.06 of the Credit Agreement shall be amended by inserting
the following at the end of such section:
Notwithstanding anything herein to the contrary, the Borrower's
compliance with the terms of this Section 6.06 shall be calculated
without giving effect to SFAS No. 150 and FASB Interpretation No. 46.
3. REPRESENTATIONS AND WARRANTIES. In order to induce the each Bank and
the Issuing Bank to enter into this Amendment, the Borrower represents and
warrants as follows:
(a) The Borrower has the corporate power and authority (i) to execute
and deliver the this Amendment and (ii) to perform its obligations under this
Amendment and the Credit Agreement as amended hereby.
(b) The execution and delivery by the Borrower of this Amendment, the
performance by the Borrower of its obligations under this Amendment and the
Credit Agreement as amended hereby (collectively, the "Transactions") (a) have
been duly authorized by all requisite corporate and, if required, stockholder
action and (b) will not (i) violate (A) any provision of law, statute, rule or
regulation the violation of which could reasonably be expected to impair the
validity and enforceability of this Amendment or the Credit Agreement as amended
hereby or materially impair the rights of or benefits available to the Banks or
the Issuing Bank under this Amendment, the Credit Agreement as amended hereby or
the other Loan Documents, or of the certificate or articles of incorporation or
other constitutive documents or by laws of the Borrower or any Significant
Subsidiary, (B) any order of any Governmental Authority the violation of which
could reasonably be expected to impair the validity or enforceability of this
Amendment or the Credit Agreement as amended hereby, or materially impair the
rights of or benefits available to the Banks or the Issuing Bank under this
Amendment or the Credit Agreement as amended hereby, or (C) any provision of any
indenture or other material agreement or instrument evidencing or relating to
borrowed money to which the Borrower or any Significant Subsidiary is a party or
by which any of them or any of their property is or may be bound in a manner
which could reasonably be expected to impair the validity and enforceability of
this Amendment or any the Credit Agreement as amended hereby or materially
impair the rights of or benefits available to the Banks or the Issuing Bank
under this Amendment or the Credit Agreement as amended hereby, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under any such indenture, agreement or other
instrument in a manner which could reasonably be expected to impair the validity
and enforceability of this Amendment or the Credit Agreement as amended hereby
or materially impair the rights of or benefits available to the Banks or the
Issuing Bank under this Amendment or the Credit Agreement as amended hereby or
(iii) result in the creation or imposition under any such indenture, agreement
or other instrument of any Lien upon or with respect to any property or assets
now owned or hereafter acquired by the Borrower.
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(c) This Amendment has been duly executed and delivered by the Borrower
and constitutes, and the Credit Agreement as amended hereby will constitute,
legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with its terms.
(d) No action, consent or approval of, registration or filing with or
any other action by any Governmental Authority is or will be required in
connection with the Transactions, except such as have been made or obtained and
are in full force and effect.
(e) Each representation and warranty made in the Loan Documents is true
and correct at and as of the date hereof after giving effect to this Amendment,
except to the extent such representations and warranties expressly relate to an
earlier date.
(f) No Default or Event of Default has occurred and is continuing after
giving effect to this Amendment.
4. CONDITIONS TO EFFECTIVENESS. The amendments provided for in Section
2 above shall become effective as of the Effective Date, but shall not become
effective as of such date unless and until each of the following conditions
precedent shall have been satisfied:
(a) The Administrative Agent shall have received each of the following,
in form and substance satisfactory to it:
(i) A certificate, dated the date of this Amendment and signed
by a Financial Officer of the Borrower, confirming compliance with the
conditions precedent set forth in paragraphs (e) and (f) of Section 3
hereof.
(ii) Evidence satisfactory to the Administrative Agent that
this Amendment has been executed and delivered by all parties hereto.
(b) All legal matters incident to this Amendment and the Credit
Agreement as amended hereby shall be reasonably satisfactory to the
Administrative Agent, the Banks, the Issuing Bank and their respective legal
counsel.
5. CONFIRMATION OF AMENDED AGREEMENT. The Credit Agreement as amended
by this Amendment is and shall continue to be in full force and effect and is
hereby in all respects confirmed, approved and ratified.
6. GOVERNING LAW. This Amendment shall be construed in accordance with
and governed by the law of the State of New York.
7. COUNTERPARTS. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto were upon the same instrument.
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8. HEADINGS. Section headings in this Amendment are included herein for
convenience and reference only and shall not constitute a part of this Amendment
for any other purpose.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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WITNESS the due execution hereof as of the date first above written.
AVISTA CORPORATION
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President & Treasurer
THE BANK OF NEW YORK,
as Administrative Agent, Issuing Bank
and a Bank
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.,
as Syndication Agent and a Bank
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
FLEET NATIONAL BANK,
as Documentation Agent and a Bank
By: /s/ XXXXX XX XXXXX E MAIA
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Name: Xxxxx xx Xxxxx e Maia
Title: Managing Director
KEYBANK NATIONAL ASSOCIATION,
as Documentation Agent and a Bank
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Vice President
U.S. BANK, NATIONAL ASSOCIATION,
as Documentation Agent and
a Bank
By: /S/ XXXXXXX XXXX
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Name: Xxxxxxx Xxxx
Title: Vice President
XXXXX FARGO BANK,
as Documentation Agent and a Bank
By: /s/ XXX XXXX
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Name: Xxx Xxxx
Title: Vice President
WASHINGTON MUTUAL BANK,
as Managing Agent and a Bank
By: /s/ XXXXXXX XXXXX, XX.
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Name: Xxxxxxx Xxxxx, Xx.
Title: Vice President
BANK HAPOALIM B.M.,
as a Bank
By: /s/ XXXX XXXX
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Name: Xxxx Xxxx
Title: Vice President
By: XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: VP
