AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
4
AMENDMENT
NO. 1
TO
AMENDED
AND RESTATED CREDIT AGREEMENT
This
AMENDMENT NO. 1, dated as of September 1, 2006 (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”),
the
banks listed on the signature pages of this Amendment as “Issuing Banks”
(collectively, the “Issuing
Banks”),
UNION
BANK OF CALIFORNIA, N.A., as administrative agent for the Lenders (in such
capacity, the “Administrative
Agent”),
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION and ABN AMRO BANK N.V., as New Issuing
Banks (as defined herein).
PRELIMINARY
STATEMENT:
The
Borrower, the Lenders, the Issuing Banks, The Bank of New York and JPMorgan
Chase Bank, N.A., as Co-Syndication Agents, Xxxxx Fargo Bank, National
Association and 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 (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 the Existing Agreement in certain particulars to
allow
for the replacement from time to time of Revenue Bond Letters of Credit in
accordance with the terms and conditions set forth in the Credit Agreement.
Each
of the Borrower, the Required Lenders, the Administrative Agent and the Issuing
Banks has agreed to such amendment, 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) Revenue
Bond Letters of Credit.
The
first sentence of Section 2.04(a)(ii) of the Existing Agreement is hereby
amended and restated in its entirety to read as follows:
“Subject
to the terms and conditions set forth herein, the Borrower may request the
issuance, amendment or replacement of Revenue Bond Letters of Credit, for
its
own account, during the period from the Effective Date
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through
and including the date that occurs ten (10) Business Days prior to the
Final Maturity Date, in a form reasonably acceptable to the Administrative
Agent
and the applicable Issuing Bank.”
(b) Amendment
and Replacement of Revenue Bond Letters of Credit.
Section
2.04(b)(ii) of the Existing Agreement is hereby amended and restated in its
entirety to read as follows:
“(ii) Any
Revenue Bond Letter of Credit may be amended by the applicable Issuing Bank,
or
replaced with a new Revenue Bond Letter of Credit issued by another Issuing
Bank, at the request of the Borrower and with the consent of the Administrative
Agent; provided,
that no
such amendment or replacement shall increase the stated amount of a Revenue
Bond
Letter of Credit or extend the expiration date thereof beyond the last
permissible date referred to in paragraph (d) below. To request an amendment
to
or replacement of an outstanding Revenue Bond Letter of Credit, the Borrower
shall hand deliver or telecopy to the applicable Issuing Bank and the
Administrative Agent (no less than three Business Days (or such shorter period
of time as acceptable to the applicable Issuing Bank and the Administrative
Agent) in advance of the requested date of amendment or replacement, as the
case
may be) a notice identifying the Revenue Bond Letter of Credit to be amended
or
replaced (as the case may be) and specifying the date of amendment or
replacement (which shall be a Business Day), the amount of such Revenue Bond
Letter of Credit, the name and address of the beneficiary thereof and such
other
information as shall be necessary to amend or replace (as the case may be)
such
Revenue Bond Letter of Credit. The Administrative Agent shall, promptly after
its receipt thereof, distribute a copy of each such notice to the Lenders.
If
requested by the applicable Issuing Bank, the Borrower also shall submit
a
letter of credit application on such Issuing Bank’s standard form in connection
with any request for the replacement of a Revenue Bond Letter of Credit.
Upon
the amendment or replacement of any Revenue Bond Letter of Credit, the
applicable Issuing Bank shall provide notice and a copy thereof to the
Administrative Agent, which shall promptly furnish copies thereof to the
Lenders.”
(c) Participations
of Revenue Bond Lenders.
The
first sentence of Section 2.04(e)(ii) of the Existing Agreement is hereby
amended and restated in its entirety to read as follows:
“On
the
Effective Date, without any further action on the part of any Issuing Bank
or
the Revenue Bond Lenders, each Issuing Bank issuing (or deemed to be issuing)
one or more Revenue Bond Letters of Credit (whether on the Effective Date
or at
any time thereafter) pursuant to this Section hereby grants to each Revenue
Bond
Lender, and each Revenue Bond Lender hereby acquires from such Issuing Bank,
a
participation in each such Revenue Bond Letter of Credit equal to such Revenue
Bond
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Lender’s
Applicable Percentage of the aggregate amount available to be drawn under
such
Revenue Bond Letter of Credit.”
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 Administrative Agent
shall have received counterparts of this Amendment executed by the Borrower,
the
Required Lenders, the Issuing Banks and the Administrative Agent (in sufficient
quantity for each party to have a fully executed original).
SECTION
3. Replacement of Issuing Bank.
(a) Existing
Issuing Bank.
Pursuant to Section 2.04(j) of the Existing Agreement, the Borrower, the
Administrative Agent, Credit Suisse (as successor to Credit Suisse First
Boston,
acting through its New York Branch) (“Credit
Suisse”),
Xxxxx
Fargo Bank, National Association (“Xxxxx
Fargo”)
and
ABN AMRO Bank N.V. (“ABN
AMRO”,
and
together with Xxxxx Fargo, the “New
Issuing Banks”)
hereby
agree that, effective as of the date of satisfaction
of the conditions precedent set forth in subsection (c) below, Credit
Suisse, in its capacity as issuer of the Existing Letters of Credit listed
as
items 1, 2 and 3 on Schedule 2.04 to the Existing Agreement (the “Replaced
Letters of Credit”)
(in
such capacity, the “Existing
Issuing Bank”),
shall
be replaced as issuer of the Replaced Letters of Credit by (i) with respect
to
the Replaced Letters of Credit listed as items 1 and 3 on such Schedule 2.04,
Xxxxx Fargo, and (ii) with respect to the Replaced Letter of Credit listed
as
item 2 on such Schedule 2.04, ABN AMRO.
(b) New
Issuing Banks.
Each
New Issuing Bank
acknowledges and agrees that, effective as of the date of satisfaction of
the
conditions precedent set forth in subsection (c) below, (i) it is an “Issuing
Bank” under the Credit Agreement, (ii) by its execution and delivery of this
Amendment, it is deemed a party to the Credit Agreement as if it were a
signatory thereof in such capacity and (iii) with respect to Letters of Credit
it issues, it assumes all obligations, and acquires all rights and remedies,
of
an “Issuing Bank” under the Credit Agreement.
(c) Conditions
to Replacement of Existing Issuing Bank.
The
replacement of the Existing Issuing Bank by the New Issuing Banks pursuant
to
subsection (a) above shall become effective on the date on which each of
the
following conditions is satisfied:
(i) Xxxxx
Fargo shall have issued Revenue Bond Letters of Credit, in replacement of
(and
in form and substance substantially identical to) the Replaced Letters of
Credit
listed as items 1 and 3 on Schedule 2.04 to the Existing Credit Agreement,
to
the applicable Revenue Bond Trustees, and all conditions to the issuance
of such
replacement Revenue Bond Letters of Credit set forth in the applicable Revenue
Bond
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Indentures
and Revenue Bond Loan Agreements shall have been satisfied (or waived in
accordance with the terms thereof).
(ii) ABN
AMRO
shall have issued a Revenue Bond Letter of Credit, in replacement of (and
in
form and substance substantially identical to) the Replaced Letter of Credit
listed as item 2 on Schedule 2.04 to the Existing Credit Agreement, to the
applicable Revenue Bond Trustee, and all conditions to the issuance of such
replacement Revenue Bond Letter of Credit set forth in the applicable Revenue
Bond Indenture and Revenue Bond Loan Agreement shall have been satisfied
(or
waived in accordance with the terms thereof).
(iii) Each
of
the Replaced Letters of Credit shall have been surrendered for cancellation
by
the applicable Revenue Bond Trustee and returned to the Existing Issuing
Bank.
(iv) The
Borrower shall have paid all unpaid fees accrued for the account of the Existing
Issuing Bank pursuant to Section 2.10(b) of the Existing Agreement.
(v) The
Borrower and the New Issuing Banks (and, if applicable, any “Custodian”, as
defined in the applicable Revenue Bond Pledge Agreement) shall have executed
and
delivered Revenue Bond Pledge Agreements in replacement of the existing Revenue
Bond Pledge Agreements to which the Existing Issuing Bank is a party, and
all
further actions required under any applicable law, or that the Administrative
Agent may reasonably request, to perfect the Liens created or intended to
be
created by such replacement Revenue Bond Pledge Agreements shall have been
taken.
SECTION
4.
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
5. 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.
SECTION
6. 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
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enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Amendment.
SECTION
7. 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 transmission shall be deemed to be, and shall constitute,
original signatures.
SECTION
8. Governing Law.
This
Amendment shall be governed by, and construed in accordance with, the laws
of
the State of the New York.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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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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By
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/s/
Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
Title:
Sr. Vice President, CFO and Treasurer
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UNION
BANK OF CALIFORNIA, N.A.,
as
Administrative
Agent and a Lender
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By
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/s/
Xxxxxxx X. Xxxxxxxxxx
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Name:
Xxxxxxx X. Xxxxxxxxxx, CFA
Title:
Assistant Vice President
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XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as
a Lender and New Issuing Bank
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By
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/s/
Xxxxx Xxxxxxx
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Name:
Xxxxx Xxxxxxx
Title:
Vice President
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ABN
AMRO BANK N.V.,
as
a Lender and New Issuing Bank
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By
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/s/
R. Xxxxx Xxxxxxxxx
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Name:
R. Xxxxx Xxxxxxxxx
Title:
Vice President
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By
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/s/
Xxxx X. Xxxxxx
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Name:
Xxxx X. Xxxxxx
Title:
Assistant Vice President
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THE
BANK OF NEW YORK,
as
an Issuing Bank and a Lender
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By
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/s/
Xxxx-Xxxx Xxxxxxx
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Name:
Xxxx-Xxxx Xxxxxxx
Title:
Managing Director
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CREDIT
SUISSE, Cayman Islands Branch,
as
an Issuing Bank
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By
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/s/
Xxxxx Xxxx
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Name:
Xxxxx Xxxx
Title: Vice
President
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By
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/s/
Xxxxxxx Xxxxxxxxxxx
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Name:
Xxxxxxx Xxxxxxxxxxx
Title:
Associate
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JPMORGAN
CHASE BANK, N.A.,
as
a Lender
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By
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/s/
Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
Title:
Vice President
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BANK
HAPOALIM B.M.,
as
a Lender
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By
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/s/
Xxxxx Xxxxxxxxx
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Name:
Xxxxx Xxxxxxxxx
Title:
Vice President
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By
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/s/
Xxxxx Xxxx Xxxxx
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Name:
Xxxxx Xxxx Xxxxx
Title:
Executive Vice President & Corporate
Manager
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BAYERISCHE
LANDESBANK, NEW YORK BRANCH,
as
a Lender
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By
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/s/
Xxxx Xxxxxxx
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Name:
Xxxx Xxxxxxx
Title:
Vice President
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By
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/s/
Xxxxxx XxXxxxx
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Name:
Xxxxxx XxXxxxx
Title:
First Vice President
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BNP
PARIBAS,
as
a Lender
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By
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/s/
Xxxx X. Xxxxxx
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Name:
Xxxx X. Xxxxxx
Title:
Managing Director
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By
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/s/
Xxxxxxxx Xxxxxx
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Name:
Xxxxxxxx Xxxxxx
Title:
Director
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COBANK,
ACB,
as
a Lender
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By
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/s/
Xxxxxxx Xxxxx
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Name:
Xxxxxxx Xxxxx
Title:
Vice President
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COMERICA
WEST INCORPORATED,
as
a Lender
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By
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/s/
Xxxxxx Xxxxxx
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Name:
Xxxxxx Xxxxxx
Title:
Corporate Banking Representative
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X-00
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XXXXXXXXXXX
XX, XXX XXXX AND CAYMAN BRANCHES,
as
a Lender
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By
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/s/
Xxxxxx Xxxxxxxx
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Name:
Xxxxxx Xxxxxxxx
Title:
Senior Vice President
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By
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/s/
Xxxxxx Xxxxxxx
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Name:
Xxxxxx Xxxxxxx
Title:
Vice President
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X-00
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XXXXXXXX
XXXX XX, XXX XXXX AND CAYMAN BRANCHES,
as
a Lender
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By
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/s/
Xxxxxx X. Xxxxx
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Name:
Xxxxxx X. Xxxxx
Title:
Director
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By
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/s/
Xxxxx Xxxxx
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Name:
Xxxxx Xxxxx
Title:
Managing Director
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KBC
BANK, N.V.,
as
a Lender
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By
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/s/
Xxxx-Xxxxxx Diels
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Name:
Xxxx-Xxxxxx Diels
Title:
First Vice President
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By
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/s/
Xxxx Xxxxxx
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Name:
Xxxx Xxxxxx
Title: Vice
President
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LLOYDS
TSB BANK PLC,
as
a Lender
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By
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Name:
Title:
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By
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Name:
Title:
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SOVEREIGN
BANK,
as
a Lender
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By
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/s/
Xxxxxx X. Xxxxxxx
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Name:
Xxxxxx X. Xxxxxxx
Title:
Senior Vice President
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THE
BANK OF TOKYO-MITSUBISHI, UFJ, LTD.,
NEW
YORK BRANCH (as successor to UFJ BANK LIMITED),
as
a Lender
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By
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/s/
Chi-Xxxxx Xxxx
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Name:
Chi-Xxxxx Xxxx
Title:
Authorized Signatory
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By
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Name:
Title:
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U.S.
BANK NATIONAL ASSOCIATION,
as
a Lender
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By
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/s/
Xxxx Xxxxxxxx
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Name:
Xxxx Xxxxxxxx
Title:
Vice President
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WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
a Lender
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By
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/s/ Xxxx Xxxxxxxxx | |
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Name:
Xxxx Xxxxxxxxx
Title:
Vice President
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