Exhibit 4(i)
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AMENDMENT NO. 3
Dated as of May 6, 2004
to the
CREDIT AGREEMENT
dated as of May 21, 2002
among
AVISTA CORPORATION,
THE BANKS PARTY HERETO,
BANK OF AMERICA, N.A., COMMERZBANK AG and WASHINGTON MUTUAL BANK,
as Managing Agents
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
---------------
BNY CAPITAL MARKETS, INC. and UNION BANK OF CALIFORNIA, N.A.
Co-Lead Arrangers and Co-Book Managers
================================================================================
AMENDMENT NO. 3
Dated as of May 6, 2004
to
CREDIT AGREEMENT
Dated as of May 21, 2002
AVISTA CORPORATION, a Washington corporation, the Banks listed on the
signature pages hereof, BANK OF AMERICA, N.A., as Managing Agent, COMMERZBANK
AG, as Managing Agent, WASHINGTON MUTUAL BANK, as Managing Agent, KEYBANK
NATIONAL ASSOCIATION, as Documentation Agent, U.S. BANK, NATIONAL ASSOCIATION,
as Documentation Agent, XXXXX FARGO BANK, as Documentation Agent and Issuing
Bank, UNION BANK OF CALIFORNIA, N.A., as Syndication Agent and an Issuing Bank,
and THE BANK OF NEW YORK, as Administrative Agent and an 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 as Issuing Bank, as amended by that
certain Amendment No. 1 dated as of May 13, 2003 to the Credit Agreement and
that certain Amendment No. 2 to the Credit Agreement dated as of November 25,
2003 (said credit agreement, as so amended, the "CREDIT AGREEMENT"). Definitions
of terms in the Credit Agreement apply to terms that are used and not otherwise
defined herein. As used herein, the terms "Bond Delivery Agreement", "First
Mortgage Bond", "LC Bank" and "Supplemental Indenture" have the meanings
ascribed to such terms in Section 2 hereof and the term "Amendment Documents"
means this Amendment, the Bond Delivery Agreement, the First Mortgage Bond and
the Supplemental Indenture.
2. AMENDMENTS. Subject to satisfaction of the conditions precedent set
forth in Section 4 below, effective as May 6, 2004 (the "EFFECTIVE DATE"), the
Credit Agreement shall be amended as follows:
(a) The first paragraph of the recital to the Credit Agreement shall be
amended by deleting the dollar amount of "$225,000,000" where it appears in the
fourth line thereof and replacing it with the dollar amount "350,000,000".
(b) The first two sentences of, and the table contained in, the
definition of "Applicable Rate" contained in Section 1.01 of the Credit
Agreement shall be amended to read as follows:
"APPLICABLE RATE" shall mean on any date with respect to the
Commitment Fee, Eurodollar Loans, ABR Loans or the LC Participation
Fee, the rate per annum set forth in
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the following table in the "Commitment Fee", "Eurodollar Margin", "ABR
Margin" or "LC Participation Fee" column, as applicable, for the
Pricing Level in effect for such date.
--------------------------------------------------------------------------------
Pricing Commitment Fee Eurodollar ABR Margin LC Participation
Levels Margin Fee
--------------------------------------------------------------------------------
I 0.150% 1.000% 0.000% 1.000%
--------------------------------------------------------------------------------
II 0.250% 1.125% 0.125% 1.125%
--------------------------------------------------------------------------------
III 0.300% 1.375% 0.375% 1.375%
--------------------------------------------------------------------------------
IV 0.375% 1.750% 0.750% 1.750%
--------------------------------------------------------------------------------
V 0.500% 2.500% 1.500% 2.500%
--------------------------------------------------------------------------------
For purposes of the foregoing table:
"Pricing Level I" will be applicable for so long as (i) the
Senior Debt Rating is BBB+ or higher by S&P and (ii) the
Senior Debt Rating is Baa1 or higher by Xxxxx'x;
"Pricing Level II" will be applicable for so long as (i) the
Senior Debt Rating is BBB or higher by S&P, (ii) the Senior
Debt Rating is Baa2 or higher by Xxxxx'x AND (iii) Pricing
Level I is not applicable;
"Pricing Level III" will be applicable for so long as (i) the
Senior Debt Rating is BBB- or higher by S&P, (ii) the Senior
Debt Rating is Baa3 or higher by Xxxxx'x AND (iii) Pricing
Levels I and II are not applicable;
"Pricing Level IV" will be applicable for so long as (i) the
Senior Debt Rating is BB+ or higher by S&P, (ii) the Senior
Debt Rating is Ba1 or higher by Xxxxx'x AND (iii) Pricing
Levels I, II, and III are not applicable; and
"Pricing Level V" will be applicable for so long as (i) the
Senior Debt Rating is less than BB+ by S&P or there is no
Senior Debt Rating by S&P or (ii) the Senior Debt Rating is
less than Ba1 by Xxxxx'x or there is no Senior Debt Rating by
Xxxxx'x.
(c) The definition of "Bond Delivery Agreement" contained in Section
1.01 of the Credit Agreement shall be amended to read as follows:
"BOND DELIVERY AGREEMENT" shall mean the Thirty-First Series
Bond Delivery Agreement.
(d) Clause (a) of the definition of "Commitment" contained in Section
1.01 of the Credit Agreement shall be amended by removing immediately after the
words "Section 2.10(b)," the words "increased from time to time pursuant to
Section 2.10(d),".
(e) The definition of "Expiration Date" contained in Section 1.01 of
the Credit Agreement shall be amended by replacing the date "May 11, 2004" with
the date "May 5, 2005".
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(f) The definition of "First Mortgage Bond" contained in Section 1.01
of the Credit Agreement shall be amended to read as follows:
"FIRST MORTGAGE BOND" shall mean the Thirty-First Series First
Mortgage Bond.
(g) The definition of "Issuing Bank" contained in Section 1.01 of the
Credit Agreement shall be amended to read as follows:
"ISSUING BANK" shall mean, (i) with respect to each Letter of
Credit, the LC Bank issuing such Letter of Credit, (ii) in all other
cases, as the context may require, each LC Bank, individually, or any
or all of the XX Xxxxx, collectively, it being understood and agreed
that: (A) the obligation of each LC Bank to issue a Letter of Credit
hereunder, and all obligations of each LC Bank with respect to each
Letter of Credit issued by it, are its several obligations and not the
joint obligations of the XX Xxxxx; (B) for so long as no Event of
Default shall have occurred and be continuing, subject to Section 2.15
(insofar as that Section relates to sharing with the Administrative
Agent and the Banks), each LC Bank may exercise all of its rights, and
receive performance of all of the obligations of the Borrower and the
Banks owed to such LC Bank under the Loan Documents (including, without
limitation, the right to receive payment of fronting fees, drawing
fees, reimbursement for drawings, indemnification for increased costs
and taxes and any other indemnification to which it may be entitled,
and the right to receive from the Banks payments in respect of their
participations in its Letters of Credit) as if such LC Bank were the
sole Issuing Bank hereunder, (C) subject to clause (ii)(D) of this
definition, at any time any LC Bank has an LC Bank Exposure greater
than zero, such LC Bank may demand the deposit of cash collateral under
Section 2.05(i) in an amount up to the LC Exposure as of such date plus
any accrued or unpaid interest thereon, and (D) during the continuation
of an Event of Default, all cash collateral deposited pursuant to
Section 2.05(i) shall be shared ratably among the XX Xxxxx in
proportion to their respective LC Bank Exposures at the time of the
occurrence of such Event of Default.
(h) The definition of "Required Banks" contained in Section 1.01 of the
Credit Agreement shall be amended to read as follows:
"REQUIRED BANKS" shall mean, at any time, Banks having
Revolving Credit Exposures representing more than 50.0% of the
aggregate Revolving Credit Exposures or, if there shall be no Revolving
Credit Exposure, Banks having Commitments representing more than 50.0%
of the aggregate Commitments.
(i) The definition of "Senior Debt Rating" contained in Section 1.01 of
the Credit Agreement shall be amended to read as follows:
"SENIOR DEBT RATING" shall mean (i) if the First Mortgage Bond
has a principal amount equal or greater to the total Commitments, the
rating by Xxxxx'x or S&P, as applicable, of the Borrower's senior
secured long-term debt obligations, and (ii) if the First Mortgage Bond
has a principal amount less than the total Commitments, the rating by
Xxxxx'x or S&P, as applicable, of the Borrower's senior unsecured
long-term debt obligations.
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(j) The definition of "Supplemental Indenture" contained in Section
1.01 of the Credit Agreement shall be amended to read as follows:
"SUPPLEMENTAL INDENTURE" shall mean the Thirty-Third
Supplemental Indenture.
(k) The following new definitions shall be inserted in the proper
alphabetical order in Section 1.01 of the Credit Agreement:
"FINANCING SUBSIDIARY" shall mean any Subsidiary of the
Borrower created specifically and solely for the purpose of providing
financing directly to the Borrower (and no other Subsidiary of the
Borrower or other Person) through the issuance by such Subsidiary of
debt or equity securities.
"LC BANK" shall mean The Bank of New York, Union Bank of
California, N.A., or Xxxxx Fargo Bank, acting in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such
capacity. Each LC Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of such LC Bank, in which
case the term "LC Bank" shall include any such Affiliate with respect
to Letters of Credit issued by such Affiliate.
"LC BANK EXPOSURE" shall mean, with respect to any LC Bank at
any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit issued by such LC Bank at such time plus
(b) the aggregate amount of all LC Disbursements by such LC Bank that
have not yet been reimbursed by or on behalf of the Borrower at such
time.
"THIRD AMENDMENT" shall mean Amendment No. 3 dated as of May
6, 2004 to this Agreement.
"THIRTY-FIRST SERIES BOND DELIVERY AGREEMENT" shall mean the
Bond Delivery Agreement, dated the date of the Third Amendment, between
the Borrower and the Administrative Agent.
"THIRTY-FIRST SERIES FIRST MORTGAGE BOND" shall mean a bond of
the Thirty-First Series issued under the Supplemental Indenture, in a
principal amount equal to the total Commitments on the date of the
Third Amendment, payable to the Administrative Agent.
"THIRTY-THIRD SUPPLEMENTAL INDENTURE" shall mean the
Thirty-Third Supplemental Indenture, dated as of May 1, 2004, between
the Borrower and Citibank, N.A., as trustee under the First Mortgage.
(l) Section 1.01 of the Credit Agreement shall be amended by deleting
the following definitions:
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"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.
(m) Section 1.02 of the Credit Agreement shall be amended by deleting
the final sentence thereof and replacing it with the following:
Except as otherwise expressly provided herein, all accounting terms not
otherwise defined herein shall have the meanings assigned to them in
conformity with GAAP as in effect at that time. Financial statements
and other information required to be delivered by the Borrower to the
Administrative Agent, the Banks and the XX Xxxxx pursuant to SECTIONS
5.04 shall be prepared in accordance with GAAP as in effect at the time
of such preparation and calculations in connection with the
definitions, covenants and other provisions hereof shall utilize
accounting principles and policies in conformity with GAAP as in effect
at the time of such preparation. If the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any
provision hereof to eliminate the effect of any change occurring after
the date hereof in GAAP or in the application thereof on the operation
of such provision (or if the Administrative Agent notifies the Borrower
that the Required Banks request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given
before or after such change in GAAP or in the application thereof, such
provision shall be interpreted on the basis of GAAP as in effect at
that time until such provision is amended in accordance herewith.
(n) The caption to Section 2.10 of the Credit Agreement shall be
amended by deleting the words "; INCREASE IN COMMITMENTS" from the end thereof.
(o) The first sentence of Section 2.05(b) of the Credit Agreement shall
be amended to read as follows:
To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower
shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
applicable LC Bank) to any LC Bank (in the event of an amendment,
renewal or extension, the LC Bank shall be the issuer of such Letter of
Credit) and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the
Letter of Credit to be amended, renewed or extended, and specifying the
date of issuance, amendment, renewal or extension (which shall be a
Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of
such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend,
renew or extend such Letter of Credit.
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(p) The last sentence of Section 2.05(b) of the Credit Agreement shall
be amended by replacing the dollar amount "$75,000,000" with the dollar amount
"125,000,000".
(q) Clause (ii) of Section 2.06(b) shall be amended to read as follows:
to the Administrative Agent for the account of each LC Bank a fronting
fee for Letters of Credit issued by such LC Bank, which shall accrue at
the rate per annum of 0.125% on the average daily amount of the LC Bank
Exposure for such LC Bank (excluding any portion thereof attributable
to unreimbursed LC Disbursements of such LC Bank) during the period
from and including the date of this Agreement to but excluding the
later of the date of termination of the Commitments and the date on
which there ceases to be any LC Exposure.
(r) Section 2.10 of the Credit Agreement shall be amended by deleting
Section 2.10(d) thereof.
(s) Section 2.18(d) of the Credit Agreement shall be amended by
replacing the reference therein to "paragraph (c)" with a reference to
"paragraph (d)".
(t) Section 2.19(b) of the Credit Agreement shall be amended by
replacing the reference therein to "all Letters of Credit" with a reference to
"all Letters of Credit issued by such Issuing Bank".
(u) Sections 3.05, 3.06, 3.07 and 3.12 of the Credit Agreement shall be
amended by replacing all references therein to the date "December 31, 2002" with
references to the date "December 31, 2003".
(v) Section 5.09 of the Credit Agreement shall be deleted.
(w) Section 6.01(c) of the Credit Agreement shall be amended to read as
follows:
(c) the Lien of the First Mortgage and the Lien of any
collateral trust mortgage or similar instrument which would be intended
to eventually replace (in one transaction or a series of transactions)
the First Mortgage (as amended, modified or supplemented from time to
time, "Collateral Trust Mortgage") on properties or assets of the
Borrower to secure bonds, notes and other obligations of the Borrower
but only to the extent such Liens, collectively, secure Indebtedness,
whether now existing or hereafter created, in an aggregate amount no
greater than the aggregate amount of first mortgage bonds permitted to
be issued under the First Mortgage.
(x) Section 6.01(d) of the Credit Agreement shall be amended to read as
follows
(d) Liens not prohibited under the First Mortgage or the
Collateral Trust Mortgage (whether or not such Liens cover properties
or assets subject to the Lien of the First Mortgage or the Collateral
Trust Mortgage);
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(y) Section 6.01(x) of the Credit Agreement shall be amended by
replacing ";" with "; and".
(z) Section 6.01(y) of the Credit Agreement shall be amended by
replacing "; and" with ".".
(aa) Section 6.01(z) of the Credit Agreement shall be deleted.
(bb) Section 6.05 of the Credit Agreement shall be amended by:
(i) replacing the reference therein to "0.65" with a reference
to "0.70"; and
(ii) deleting the final sentence thereof.
(cc) Section 6.06 of the Credit Agreement shall be amended by deleting
the final sentence thereof.
(dd) Section 6.09 of the Credit Agreement shall be amended by: (i)
inserting the phrase "(other than a Financing Subsidiary)" immediately after the
term "Subsidiary", (ii) replacing the references to the years "2003" and "2004"
with references to the years "2004" and "2005", respectively, and (iii)
inserting the term "such" immediately before the term "Subsidiaries".
(ee) Section 9.01(b) of the Credit Agreement shall be amended by
removing the reference therein to "or the Issuing Bank".
(ff) Section 9.01(c) of the Credit Agreement shall be amended by
replacing the reference to "a Bank" therein with a reference to "a Bank or an
Issuing Bank".
(gg) Section 9.06 of the Credit Agreement shall be amended by replacing
each reference to "Lender" therein with a reference to "Bank".
(hh) The Credit Agreement shall be amended by deleting Exhibit D
attached thereto.
(ii) Schedule 2.01 to the Credit Agreement shall be replaced by
Schedule 2.01 attached hereto.
(jj) The Credit Agreement shall be amended by adding a new Section 9.16
as follows:
"Section 9.16 USA PATRIOT ACT NOTIFICATION. Each Bank hereby
notifies the Borrower that pursuant to the requirements of the USA Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the
"Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and
address of the Borrower and other information that will allow such Bank
to identify the Borrower in accordance with the Act. The Borrower
agrees to cooperate with each Bank and provide true, accurate and
complete information to such Bank in response to any such request."
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3. REPRESENTATIONS AND WARRANTIES. In order to induce the Banks and the
XX Xxxxx 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 Amendment Documents, (ii) to perform its obligations under the
Amendment Documents and the Loan Documents as amended thereby and (iii) to
borrow Loans and have Letters of Credit issued in the maximum amount available
under the Credit Agreement as amended hereby.
(b) The execution and delivery by the Borrower of the Amendment
Documents, the performance by the Borrower of its obligations under the
Amendment Documents and the Loan Documents as amended thereby, and the borrowing
of Loans and procurement of Letters of Credit in the maximum amount available
under the Credit Agreement as amended hereby (collectively, the "Transactions")
(i) have been duly authorized by all requisite corporate and, if required,
stockholder action and (ii) will not (A) violate (I) any provision of law,
statute, rule or regulation the violation of which could reasonably be expected
to impair the validity and enforceability of any Amendment Document or any Loan
Document as amended thereby or materially impair the rights of or benefits
available to the Banks or the XX Xxxxx under the Amendment Documents or the Loan
Documents as amended thereby, or of the certificate or articles of incorporation
or other constitutive documents or by laws of the Borrower or any Significant
Subsidiary, (II) any order of any Governmental Authority the violation of which
could reasonably be expected to impair the validity or enforceability of any
Amendment Document or any Loan Document as amended thereby, or materially impair
the rights of or benefits available to the Banks or the XX Xxxxx under the
Amendment Documents or the Loan Documents as amended thereby, or (III) 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 any Amendment Document or any Loan Document as amended
thereby or materially impair the rights of or benefits available to the Banks or
the XX Xxxxx under any Amendment Document or any Loan Document as amended
thereby, (B) 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 any Amendment Document or any Loan
Document as amended thereby or materially impair the rights of or benefits
available to the Banks or the XX Xxxxx under any Amendment Document or any Loan
Document as amended thereby or (C) 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.
(c) This Amendment has been duly executed and delivered by the Borrower
and constitutes, and each other Amendment Document when executed and delivered
by the Borrower, and the Loan Documents as amended thereby, 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.
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(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 the Amendment
Documents, 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 the Amendment Documents.
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) Opinion of Xxxxxx Xxxxxx White & XxXxxxxxx, LLP, counsel
to the Borrower, dated the date of this Amendment and addressed to the
Administrative Agent, the Banks and the XX Xxxxx, with respect to such
matters relating to the Borrower, the Amendment Documents and the Loan
Documents as amended thereby, as the Administrative Agent, the XX Xxxxx
or any Bank may reasonably request. The Borrower hereby instructs such
counsel to deliver such opinion to the Administrative Agent.
(ii) Evidence satisfactory to the Administrative Agent that
the Borrower shall have obtained all consents and approvals of, and
shall have made all filings and registrations with, any Governmental
Authority required in order to consummate the Transactions, in each
case without the imposition of any condition which, in the judgment of
the Banks or the XX Xxxxx, could adversely affect their rights or
interests under the Amendment Documents or the Loan Documents as
amended thereby.
(iii) A copy of the certificate or articles of incorporation,
including all amendments thereto, of the Borrower, certified as of a
recent date by the Secretary of State of the state of its organization,
and a certificate as to the good standing of the Borrower as of a
recent date, from such Secretary of State.
(iv) A certificate of the Secretary or Assistant Secretary of
the Borrower dated the date of this Amendment and certifying (A) that
attached thereto is a true and complete copy of the by-laws of the
Borrower as in effect on the date of this Amendment and at all times
since a date prior to the date of the resolutions described in clause
(B) below, (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the board of directors of the Borrower
authorizing the Transactions, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C)
that the certificate or articles of incorporation of the Borrower have
not been amended since the date of the last amendment thereto shown on
the certificate of good standing furnished pursuant to clause (iii)
above, and (D) as to the incumbency and specimen signature of each
officer executing any Amendment Document or any other document
delivered in connection therewith on behalf of the Borrower.
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(v) A certificate of another officer as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing
the certificate pursuant to clause (iv) above.
(vi) 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.
(vii) Evidence satisfactory to the Administrative Agent that
the Amendment Documents have been executed and delivered by all parties
thereto.
(viii) A certificate, dated the date of this Amendment and
signed by the Secretary or an Assistant Secretary of the Borrower
certifying that (A) the First Mortgage has not been amended or
supplemented since the certified copy thereof delivered by the Borrower
pursuant to Section 4.02(a)(viii) of the Credit Agreement, except as
supplemented by the Thirty-First Supplemental Indenture, the
Thirty-Second Supplemental Indenture dated as of September 1, 2003 and
the Supplemental Indenture, and (B) attached thereto is a true and
complete copy of the Thirty-Second Supplemental Indenture dated as of
September 1, 2003.
(ix) A paid endorsement to title insurance policy No. XXX
00000-XXX issued by First American Title Insurance Company, which
endorsement (A) provides that the insured is the trustee under the
First Mortgage including all supplemental indentures through the
Supplemental Indenture, (B) has an amount of insurance not less than
$545,000,000, (C) has a list of insured properties which conforms to
the list of properties subject to the First Mortgage, (D) insures
against loss from the failure of the Supplemental Indenture to modify
the First Mortgage and (E) contains the proper priority of the First
Mortgage.
(x) Such other documents as the Administrative Agent, the
Banks, the XX Xxxxx or their respective legal counsel may reasonably
request.
(b) All fees payable by the Borrower to the Administrative Agent, the
XX Xxxxx, the Banks or any of their Affiliates on or prior to the date of this
Amendment with respect to this Amendment, and all amounts payable by the
Borrower pursuant to Section 9.05 of the Credit Agreement for which invoices
have been delivered to the Borrower on or prior to such date, shall have been
paid in full or arrangements satisfactory to the Administrative Agent shall have
been made to cause them to be paid in full concurrently with the disbursement of
the proceeds of any Borrowing to be made on such date.
(c) All legal matters incident to the Amendment Documents and the Loan
Documents as amended thereby and the transactions contemplated thereby shall be
reasonably satisfactory to the Administrative Agent, the Banks, the XX Xxxxx and
their respective legal counsel.
5. ASSIGNMENT OF LOANS, LC DISBURSEMENTS AND LC PARTICIPATIONS TO
REFLECT AMENDED COMMITMENTS. On the Effective Date, the Banks whose Pro Rata
Shares after giving effect to this Amendment are greater than their Pro Rata
Shares prior to giving effect to this
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Amendment (each an "Increasing Bank") shall purchase, as an assignment from the
Banks whose Pro Rata Shares after giving effect to this Amendment are less than
their Pro Rata Shares prior to giving effect to this Amendment (each a
"Decreasing Bank"), such portions of the Decreasing Banks' Loans, unreimbursed
LC Disbursements and participations in Letters of Credit outstanding at such
time such that, after giving effect to such assignments, the respective
aggregate amount of Loans, unreimbursed LC Disbursements and participations in
Letters of Credit of each Bank shall be equal to such Bank's Pro Rata Share of
the aggregate Loans, unreimbursed LC Disbursements and participations in Letters
of Credit outstanding. The purchase price for the Loans, unreimbursed LC
Disbursements and participations in Letters of Credit so assigned shall be the
sum of (i) the principal amount of the Loans and unreimbursed LC Disbursements
so assigned plus the amount of accrued and unpaid interest thereon as of the
date of assignment and (ii) the amount of accrued and unpaid LC Participation
Fees as of the date of assignment on the participations in Letters of Credit so
assigned. Each Increasing Bank shall pay the aggregate purchase price payable by
it to the Administrative Agent on the Effective Date and the Administrative
Agent shall promptly forward to each Decreasing Bank the portion thereof payable
to it. Upon payment by an Increasing Bank of the purchase price payable by it to
a Decreasing Bank, such Decreasing Bank shall be automatically deemed to have
sold and made the applicable assignments to such Increasing Bank and shall, to
the extent of the interest assigned, be released from its obligations under the
Loan Documents, and such Increasing Bank shall be automatically deemed to have
purchased and assumed such assignments from such Decreasing Bank and, if not
already a Bank hereunder, shall be a party hereto and, to the extent of the
interest assigned, have the rights and obligations of a Bank under the Loan
Documents.
6. EFFECT OF INTEREST AND FEE RATE AMENDMENTS. Any changes in interest
or fees rates effected by this Amendment shall apply with respect to interest
and fees accruing for the Effective Date and periods thereafter, while interest
and fees rates in effect prior to the effectiveness of such amendments shall
continue to be applicable for accruals for periods prior to the Effective Date.
7. 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.
8. GOVERNING LAW. This Amendment shall be construed in accordance with
and governed by the law of the State of New York.
9. 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.
10. 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]
11
WITNESS the due execution hereof as of the date first above written.
AVISTA CORPORATION
By: /s/ XXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President, CFO & Treasurer
THE BANK OF NEW YORK,
as Administrative Agent, an Issuing Bank
and a Bank
By: /s/ XXXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ALLIED IRISH BANKS, p.l.c.,
as a Bank
By: /s/ XXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
ALLIED IRISH BANKS, p.l.c.,
as a Bank
By: /s/ XXXX X. XXXXXXXX
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
BANK HAPOALIM B.M.,
as a Bank
By: /s/ XXXX XXXX
--------------------------------------
Name: Xxxx Xxxx
Title: Vice President
By: /s/ XXXXXX XXXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: FVP
Bank of America, N.A.,
as a Bank
By: /s/ XXXX XXXXXXXX
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
COMERICA WEST INCORPORATED,
as a Bank
By: /s/ XXX X. XXXXXXX
--------------------------------------
Name: Xxx X. Xxxxxxx
Title: Corporate Banking Representative
COMMERZBANK AG, NEW YORK AND
CAYMAN ISLANDS BRANCHES,
as a Bank
By: /s/ XXXXXX XXXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
By: /s/ XXXXXXX XXXX
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
FIRST COMMERCIAL BANK,
as a Bank
By: /s/ XXXXX X.X. XX
--------------------------------------
Name: Xxxxx X.X. Xx
Title: VP & GM
KEYBANK NATIONAL ASSOCIATION,
as a Bank
By: /s/ XXXXX X. XXXXX
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as a Bank
By: /s/ XXXXXX XXXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Officer
MIZUHO CORPORATE BANK, LTD.,
as a Bank
By: /s/ XXXX XXXXXXX
------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
Sterling Savings BANK,
as a Bank
By: /s/ XXXX X. XXXXXXXX
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.,
as Syndication Agent, an Issuing Bank
and a Bank
By: /s/ XXXXX XXXXXXX
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
U.S. BANK, NATIONAL ASSOCIATION,
as a Bank
By: /s/ XXXXXXX XXXX
--------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
WASHINGTON MUTUAL BANK,
as a Bank
By: /s/ XXXXXXX X. XXXXX, XX.
--------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
XXXXX FARGO BANK,
as an Issuing Bank and a Bank
By: /s/ XXX XXXX
--------------------------------------
Name: Xxx Xxxx
Title: Vice President
SCHEDULE 2.01
NAMES, COMMITMENTS, ADDRESSES FOR INITIAL BANKS
Bank Commitment
---- ----------
The Bank of New York $45,500,000
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
Telecopy: 000-000-0000
Allied Irish Banks, p.l.c. $13,000,000
000 Xxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx/Xxxxx Xxxxxxx
Telecopy: 000-000-0000
Bank Hapoalim B.M. $10,000,000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
Telecopy: (000) 000-0000
Bank of America, N.A. $30,000,000
000 0xx Xxxxxx, Xxxxx 00
Xxxxxxx, XX 00000
WA1-501-35-01
Attention: Xxxxxx Xxxx
Telecopy: 000-000-0000
Comerica West Incorporated $13,000,000
Xxxxxx Xxxxx / XX 0000
000 Xxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxxx
Telecopy: 000-000-0000
Bank Commitment
---- ----------
Commerzbank AG, New York Branch $20,000,000
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxx
Telecopy: 000-000-0000
First Commercial Bank $13,000,000
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxx
Telecopy: 000-000-0000
KeyBank National Association $32,000,000
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
LaSalle Bank National Association $13,000,000
000 XxXxxxx Xxxxxx Xxx. 000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: 000-000-0000
Mizuho Corporate Bank, Ltd. $13,000,000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxx
Telecopy: 000-000-0000
Sterling Savings Bank $13,000,000
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Telecopy: 000-000-0000
Union Bank of California, N.A. $45,500,000
000 X. Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telecopy: (000) 000-0000
Bank Commitment
---- ----------
U.S. Bank, N.A. $32,000,000
0000 Xxxxx Xxxxxx, 0xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Telecopy: (000) 000-0000
Washington Mutual Bank $25,000,000
0000 0xx Xxxxxx, XXX 0000
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Telecopy: 000-000-0000
Xxxxx Fargo Bank $32,000,000
000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxx Xxxx
Telecopy: (000) 000-0000
------------
TOTAL: $350,000,000
