AMENDMENT NO. 1 TO CREDIT AGREEMENT
[EXECUTION COPY]
Exhibit 4(aa)(9)
This AMENDMENT NO. 1, dated as of February 3, 2010 (this “Amendment”), is made by and among
UNISOURCE ENERGY DEVELOPMENT COMPANY, an Arizona corporation (the “Company”), the Banks listed on
the signature pages of this Amendment as “Banks” (such Banks, together with their respective
permitted assignees from time to time, being referred to herein, collectively, as the “Banks”), and
UNION BANK, N.A. (“Union Bank”), as Agent for the Banks (in such capacity, the “Agent”).
PRELIMINARY STATEMENT:
The Company, the Banks and the Agent previously entered into that certain Credit Agreement,
dated as of March 26, 2009 (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 Company desires to amend the Existing
Agreement to extend the Termination Date by two (2) years, to provide for an additional Loan of
$9,570,000.00 to be made by the Banks to the Company on the effective date of this Amendment (the
“Additional Loan”), and to make certain other modifications thereto, and the Banks and the Agent
have agreed to such extension, Additional Loan and other modifications 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) Loan. The definition of “Loan” contained in Section 1.01 of the Existing Agreement is
hereby amended and restated in its entirety to read as follows:
“Loan” shall mean a loan by a Bank to the Company pursuant to Section 3.01 hereof
(including, without limitation, the Additional Loan), and refers to an Alternate Base Rate
Loan or a Eurodollar Rate Loan.
(b) Termination Date. The definition of “Termination Date” contained in Section 1.01 of the
Existing Agreement is hereby amended and restated in its entirety to read as follows:
Amendment No 1 to Credit Agreement
“Termination Date” shall mean March 24, 2012, or such earlier date on which this
Agreement terminates in accordance with Section 4.09.
(c) Additional Definitions. The following new definitions are hereby added to Section 1.01 of
the Existing Agreement in appropriate alphabetical order:
“Additional Loan” shall have the meaning ascribed thereto in Section 3.01 hereof.
“First Amendment” shall mean Amendment No. 1, dated as of February 3, 2010, among the
Company, the Banks and the Agent, which Amendment No. 1 amended this Agreement pursuant to
the terms thereof.
“First Amendment Distribution” shall mean an amount not greater than $9,570,000.
“First Amendment Effective Date” shall mean the date on which all of the conditions
set forth in Section 2 of the First Amendment shall have been satisfied or waived by the
Banks.
(d) Additional Loan. Section 3.01 of the Existing Agreement is hereby amended and restated in
its entirety to read as follows:
SECTION 3.01 Loans. Subject to the terms and conditions of this Agreement, each
Bank severally agrees (a) to make Loans to the Company in a single advance on the Closing
Date in an aggregate principal amount up to but not exceeding the amount of such Bank’s
Commitment and (b) to make an additional loan (the “Additional Loan”) to the Company in a
single advance on the First Amendment Effective Date in an aggregate principal amount up
to but not exceeding such Bank’s Proportionate Share (as determined on the First Amendment
Effective Date prior to giving effect to the Additional Loan) of $9,570,000.00. Subject
to the terms and conditions of this Agreement, the Company may borrow the Loans made under
this Section 3.01 by means of Alternate Base Rate Loans and/or Eurodollar Rate Loans, and
such Loans may be Converted pursuant to Section 3.03 hereof. Amounts repaid or prepaid in
respect of the Loans may not be reborrowed. The parties hereto acknowledge and agree that
the outstanding principal amount of the Loans as of the First Amendment Effective Date
after giving effect to the Additional Loan is $35,000,000.00.
(e) Notes. The first sentence of Section 4.08 of the Existing Agreement is hereby amended and
restated in its entirety to read as follows:
The Loans made or to be made by each Bank shall be evidenced by a single promissory note
(each, a “Note”) of the Company in substantially the form of Exhibit A hereto (with such
changes thereto as may be agreed
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by the Agent, the Company and such Bank), dated the First Amendment Effective Date,
payable to such Bank in a principal amount equal to the aggregate outstanding principal
amount of the Loans made by such Bank to the Company as of the First Amendment Effective
Date (after giving effect to the Additional Loan) and otherwise duly completed.
(f) Making the Loans. Subsections (a) and (b) of Section 5.01 of the Existing Agreement are
hereby amended and restated in their entirety to read as follows:
(a) Each of the initial Borrowing and the Borrowing of the Additional Loan shall be
made upon notice, given not later than 11:00 A.M. (Los Angeles, California time) one (1)
Business Day (to the extent that such Borrowing will consist of Alternate Base Rate Loans)
and three (3) Business Days (to the extent that such Borrowing will consist of Eurodollar
Rate Loans) prior to the date of such Borrowing, by the Company to the Agent, which shall
give to each Bank prompt notice thereof and of each other notice received from the Company
hereunder. The notice of such Borrowing (each, a “Notice of Borrowing”) shall be in
writing, substantially in the form of Exhibit G hereto, and specifying therein (i) the
requested date of such Borrowing, (ii) the requested Type and amount of each Loan
comprising such Borrowing, (iii) the requested aggregate amount of such Borrowing, and
(iv) in the case of a Borrowing comprised of Eurodollar Rate Loans, the initial Interest
Period for each such Loan. In the case of a proposed Borrowing comprised of Eurodollar
Rate Loans, the Agent shall promptly notify each Bank of the applicable interest rate
pursuant to Section 4.05 hereof. Each Bank shall, before 11:00 A.M. (Los Angeles,
California time) on the date of such Borrowing, make available for the account of its
Applicable Lending Office to the Agent at its Principal Office, in same day funds, such
Bank’s Proportionate Share of such Borrowing. After the Agent’s receipt of such funds and
upon fulfillment of the applicable conditions set forth in Section 7 hereof (or, in the
case of the Borrowing of the Additional Loan, the applicable conditions set forth in
Section 2 of the First Amendment), the Agent will make such funds available to the Company
by promptly crediting the amounts so received in like funds to an account of the Company
designated by the Company in the applicable Notice of Borrowing. For the purposes of
determining whether the applicable conditions set forth in Section 7 hereof (or, in the
case of the Borrowing of the Additional Loan, the applicable conditions set forth in
Section 2 of the First Amendment) have been fulfilled, the Agent may assume the truth of
the statements contained in certificates delivered pursuant to said Section.
(b) Each Notice of Borrowing shall be irrevocable and binding on the Company and, in
respect of any Borrowing comprised of Eurodollar Rate Loans specified in such Notice of
Borrowing, the Company shall indemnify each Bank against any loss or expense incurred
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by such Bank as a result of any failure to fulfill on or before the date specified
for such Borrowing the applicable conditions set forth in Section 7 hereof (or, in the
case of the Borrowing of the Additional Loan, the applicable conditions set forth in
Section 2 of the First Amendment), including, without limitation, any amounts payable to
the applicable Banks pursuant to Section 6.03 hereof (excluding loss of anticipated
profits).
(g) Use of Proceeds. Section 8.13 of the Existing Agreement is hereby amended by deleting the
phrase “and (iii) to make the Closing Distribution to the Guarantor on, or within ten (10) Business
Days after, the Closing Date” in its entirety and substituting therefor the new phrase “(iii) to
make the Closing Distribution to the Guarantor on, or within ten (10) Business Days after, the
Closing Date, and (iv) with respect to the proceeds of the Additional Loan, to make the First
Amendment Distribution to the Guarantor on, or within ten (10) Business Days after, the First
Amendment Effective Date”.
(h) Capital Expenditures. Section 9.03 of the Existing Agreement is hereby amended and
restated in its entirety to read as follows:
SECTION 9.03 Capital Expenditures. The Company shall not make or become legally
obligated to make any Capital Expenditures exceeding, during any Period of four
consecutive fiscal quarters (commencing with the Period of four consecutive fiscal
quarters ending December 31, 2010), in the aggregate, the sum of (a) $2,000,000 plus (b)
the aggregate amount of any Capital Expenditures of the Company that are funded or paid by
the Guarantor during such period.
(i) Consent to Jurisdiction. Section 15.11(a) of the Existing Agreement is hereby amended and
restated in its entirety to read as follows:
SECTION 15.11 Consent to Jurisdiction and Venue, Etc. (a) The Company hereby
irrevocably (i) agrees that any suit, action or other legal proceeding arising out of or
relating to this Agreement, the Notes or any other Financing Document may be brought in
the Supreme Court of the State of New York sitting in New York County, State of New York
or in the United States District Court of the Southern District of New York, and any
appellate court from any thereof, (ii) consents to the jurisdiction of each such court in
any such suit, action or proceeding and (iii) waives any objection which it may have to
the laying of venue of any such suit, action or proceeding in any of such courts and any
claim that any such suit, action or proceeding has been brought in an inconvenient forum.
The Company irrevocably consents to the service of any and all process in any such suit,
action or proceeding by mailing of copies of such process to it at its address provided in
Section 15.02. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in
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any other manner provided by law. All mailings under this Section 15.11 shall be by
certified mail, return receipt requested.
SECTION 2. Conditions of Effectiveness of Amendments. The amendments to the Existing
Agreement set forth in Section 1 hereof shall become effective as of the date hereof when, and only
when, the Agent shall have received (a) counterparts of this Amendment executed by each of the
Company, the Banks and the Agent, (b) the consent of the Guarantor, in substantially the form of
Exhibit A hereto, duly executed by an authorized officer of the Guarantor, (c) the upfront fee
payable by the Company pursuant to that certain fee letter agreement, dated the date hereof,
between the Company and Union Bank, and (d) all of the following documents, each document being
dated the date of receipt thereof by the Agent (which date shall be the same for all such
documents), in form and substance reasonably satisfactory to the Agent:
(i) an amendment to the Mortgage, in substantially the form of Exhibit B hereto, duly
executed by each of the parties thereto and in recordable form (the “Mortgage Amendment”)
(the Banks hereby consent to such amendment and authorize and direct the Agent to execute
and deliver such amendment on behalf of the Secured Parties);
(ii) Notes payable to the order of the Banks, duly executed by the Company, in an
aggregate principal amount equal to the outstanding principal amount of the Loans (after
giving effect to the Additional Loan), which Notes shall replace the Notes executed and
delivered by the Company on the Closing Date;
(iii) certified copies of the resolutions of the Board of Directors of the Company
establishing the authority of the Company to execute, deliver and perform this Amendment,
and all other documents evidencing other necessary action with respect thereto;
(iv) a certificate by an Authorized Officer of the Company certifying the name,
incumbency and signature of each individual authorized to sign, on behalf of the Company,
this Amendment and the other documents or certificates to be delivered pursuant hereto;
(v) certified copies of the Articles of Incorporation and By-Laws of the Company,
together with all amendments thereto;
(vi) good standing certificates with respect to the Company issued no earlier than
ten (10) days prior to the date hereof;
(vii) originals (or copies certified by an Authorized Officer of the Company to be
true, correct and complete copies) of all Government Approvals required under applicable
Laws in connection with the transactions contemplated by this Amendment;
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(viii) an amendment and bring-down endorsement to the title insurance policy issued
by the Title Insurer to the Agent with respect to the Property (as defined in the
Mortgage) effective as of the date and time of the recordation of the Mortgage Amendment,
showing no exceptions other than the Permitted Exceptions, together with evidence of the
payment of all premiums due thereon;
(ix) a certificate of an Authorized Officer of the Company certifying that: (A) the
representations and warranties of the Company contained in Section 2 of the Credit
Agreement and in each of the other Financing Documents to which the Company is a party are
true and correct in all material respects on and as of the date hereof as if made on and
as of such date (or, if stated to have been made solely as of an earlier date, were true
and correct in all material respects as of such earlier date), and (B) no Default under
the Credit Agreement has occurred and is continuing on such date after giving effect to
this Amendment and the transactions contemplated hereby; and
(x) legal opinions of (A) Xxxxxx, Xxxxx & Xxxxxxx LLP, special New York counsel to
the Company and the Guarantor, in substantially the form of Exhibit C hereto, and (B)
Xxxxxxx X. Xxxxxx, General Counsel of the Guarantor, in substantially the form of Exhibit
D hereto.
SECTION 3. Representations and Warranties of the Company. The Company represents and
warrants as follows:
(a) The Company has full corporate power, authority and legal right to incur the
obligations provided for in this Amendment and the Amended Agreement, and to perform the
terms thereof. This Amendment and the Amended Agreement have been duly authorized,
executed and delivered by the Company and constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with their
respective terms, except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors rights generally and subject to any equitable principles limiting
the right to obtain specific performance of any such obligation. No other consent of any
other Person, except for (i) the Agent and the Banks and (ii) such consents that have been
obtained and are in full force and effect, is required as a prerequisite to the validity
and enforceability of this Amendment or the Amended Agreement.
(b) Neither the execution and delivery of this Amendment, nor the fulfillment of and
compliance with the terms and provisions of this Amendment or the Amended Agreement, will
conflict with, or result in a breach of the terms, conditions or provisions of, or
constitute a default
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under, or result in any violation of, or result in the creation of any Lien (except
those created by the Financing Documents) upon any of the properties or assets of the
Company pursuant to, (i) the articles of incorporation of the Company or its by-laws, (ii)
any Governmental Approval, (iii) any judgment, order, writ, injunction or decree of any
court or other Governmental Authority, (iv) any award of any arbitrator, or (v) any
agreement (including, without limitation, any Project Document), lease, indenture,
instrument or Law to which the Company is subject, except, with respect to the foregoing
clauses (ii), (iii), (iv) and (v), for such conflicts, breaches, defaults or violations
that, individually and in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
(c) No Government Approvals or other consents or approvals are required in connection
with the execution, delivery and performance by the Company of this Amendment or the
Amended Agreement, except for such Government Approvals or other consents or approvals
that have been duly obtained, were validly issued and are in full force and effect and not
subject to appeal or reconsideration.
(d) No Default has occurred and is continuing or would occur as a result of the
execution, delivery or performance of this Amendment.
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
Financing 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. This
Amendment shall constitute a “Financing Document” for all purposes under the Credit Agreement.
(b) Except as specifically amended 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 Banks, the Agent or any
other Secured Party under the Existing Agreement or any other Financing Document, nor constitute a
waiver of any provision of the Existing Agreement or any other Financing Document.
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SECTION 5. Costs and Expenses. The Company agrees to pay on demand all reasonable costs and
expenses of the Agent incurred in connection with the preparation, negotiation, 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
Agent with respect thereto and with respect to advising the Agent as to its rights and
responsibilities hereunder and thereunder.
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.
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UNISOURCE ENERGY DEVELOPMENT COMPANY |
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| By: | ||||
| Name: | ||||
| Title: | ||||
UNION BANK, N.A., as Agent and as a Bank |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Amendment No. 1
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EXHIBIT A
CONSENT
UniSource Energy Corporation, an Arizona corporation, as the Guarantor under that certain
Guaranty Agreement, dated as of March 26, 2009, in favor of the Agent and the other Secured Parties
(the “Parent Guaranty”), (i) hereby consents to Amendment No. 1, dated as of February 3, 2010, to
the Credit Agreement, dated as of March 26, 2009 (the “Credit Agreement”, the terms defined therein
being used herein as therein defined), among UniSource Energy Development Company, an Arizona
corporation, the Banks named therein and from time to time party thereto, and Union Bank, N.A., as
Agent, and (ii) hereby confirms and agrees that the Parent Guaranty is, and shall continue to be,
in full force and effect and is hereby confirmed and ratified in all respects except that, on and
after the effective date of said Amendment No. 1, each reference in the Parent Guaranty to “the UED
Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit
Agreement shall mean and be a reference to the Credit Agreement, as amended by said Amendment
No. 1.
| February 3, 2010 | UNISOURCE ENERGY CORPORATION |
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| By: | ||||
| Name: | ||||
| Title: | ||||
