EXHIBIT 10.1
DEFINITIVE AGREEMENT
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CREDIT AGREEMENT
dated as of December 17, 2004
among
AVISTA CORPORATION,
THE BANKS PARTY HERETO,
BANK OF AMERICA, N.A.,
as Managing Agent,
KEYBANK NATIONAL ASSOCIATION and U.S. BANK, NATIONAL ASSOCIATION,
as Documentation Agents,
▇▇▇▇▇ FARGO BANK,
as Documentation Agent and an 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
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BNY CAPITAL MARKETS, INC. and UNION BANK OF CALIFORNIA, N.A.
Lead Arrangers and Book Managers
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS........................................................................................... 1
Section 1.01 Defined Terms....................................................................... 1
Section 1.02 Terms Generally..................................................................... 12
ARTICLE II
THE CREDITS........................................................................................... 13
Section 2.01 Commitments......................................................................... 13
Section 2.02 Loans............................................................................... 13
Section 2.03 Notice of Borrowings................................................................ 14
Section 2.04 Repayment of Loans; Evidence of Debt................................................ 15
Section 2.05 Letters of Credit................................................................... 15
(a) General............................................................................. 15
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions............... 15
(c) Expiration Date..................................................................... 16
(d) Participations...................................................................... 16
(e) Reimbursement....................................................................... 16
(f) Obligations Absolute................................................................ 17
(g) Disbursement Procedures............................................................. 18
(h) Interim Interest.................................................................... 18
(i) Cash Collateralization.............................................................. 18
(j) Letters of Credit Expiring After the Expiration Date................................ 19
(j) Certain Letters of Credit Outstanding Under the Existing Credit Agreement........... 19
Section 2.06 Fees................................................................................ 19
Section 2.07 Interest on Loans................................................................... 20
Section 2.08 Default Interest.................................................................... 20
Section 2.09 Alternate Rate of Interest.......................................................... 21
Section 2.10 Termination, Reduction and Increase in Commitments.................................. 21
Section 2.11 Prepayment.......................................................................... 22
Section 2.12 Reserve Requirements; Change in Circumstances....................................... 22
Section 2.13 Change in Legality.................................................................. 24
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Section 2.14 Indemnity........................................................................... 24
Section 2.15 Pro Rata Treatment.................................................................. 25
Section 2.16 Sharing of Setoffs.................................................................. 25
Section 2.17 Payments............................................................................ 26
Section 2.18 Taxes............................................................................... 26
Section 2.19 Termination or Assignment of Commitments Under Certain Circumstances................ 28
ARTICLE III
REPRESENTATIONS AND WARRANTIES........................................................................ 29
Section 3.01 Organization; Powers................................................................ 29
Section 3.02 Authorization....................................................................... 29
Section 3.03 Enforceability...................................................................... 30
Section 3.04 Governmental Approvals.............................................................. 30
Section 3.05 Financial Statements................................................................ 30
Section 3.06 No Material Adverse Change.......................................................... 30
Section 3.07 Litigation; Compliance with Laws.................................................... 30
Section 3.08 Federal Reserve Regulations......................................................... 31
Section 3.09 Investment Company Act; Public Utility Holding Company Act.......................... 31
Section 3.10 No Material Misstatements........................................................... 31
Section 3.11 Employee Benefit Plans.............................................................. 31
Section 3.12 Environmental and Safety Matters.................................................... 31
Section 3.13 Significant Subsidiaries............................................................ 32
ARTICLE IV
CONDITIONS TO BORROWINGS AND LETTERS OF CREDIT........................................................ 32
Section 4.01 All Borrowings and Letters of Credit................................................ 32
Section 4.02 First Borrowing or Letter of Credit................................................. 33
ARTICLE V
AFFIRMATIVE COVENANTS................................................................................. 35
Section 5.01 Existence; Businesses and Properties................................................ 35
Section 5.02 Insurance........................................................................... 35
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Section 5.03 Taxes and Obligations............................................................... 36
Section 5.04 Financial Statements, Reports, etc.................................................. 36
Section 5.05 Litigation and Other Notices........................................................ 37
Section 5.06 ERISA............................................................................... 37
Section 5.07 Maintaining Records; Access to Properties and Inspections........................... 38
Section 5.08 Use of Proceeds and Letters of Credit............................................... 38
ARTICLE VI
NEGATIVE COVENANTS.................................................................................... 38
Section 6.01 Liens............................................................................... 38
Section 6.02 Sale-Leaseback Transactions......................................................... 41
Section 6.03 Mergers, Consolidations and Acquisitions............................................ 41
Section 6.04 Disposition of Assets............................................................... 42
Section 6.05 Consolidated Total Debt to Consolidated Total Capitalization Ratio.................. 43
Section 6.06 Avista Utilities Interest Coverage Ratio............................................ 43
Section 6.07 Public Utility Regulatory Borrowing Limits.......................................... 43
Section 6.08 Avista Energy Guarantees............................................................ 43
Section 6.09 Investments......................................................................... 43
ARTICLE VII
EVENTS OF DEFAULT..................................................................................... 43
ARTICLE VIII
RELEASE OF COLLATERAL................................................................................. 46
Section 8.01 Borrower's Election Upon Credit Upgrade............................................. 46
Section 8.02 Release Upon Commitment Reduction................................................... 46
Section 8.03 Release Upon Termination and Repayment.............................................. 47
ARTICLE IX
THE ADMINISTRATIVE AGENT.............................................................................. 47
Section 9.01 Appointment and Powers.............................................................. 47
Section 9.02 Limitation on Liability............................................................. 47
Section 9.03 Other Transactions with the Borrower................................................ 48
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Section 9.04 Reimbursement; Indemnification...................................................... 48
Section 9.05 Absence of Reliance................................................................. 48
Section 9.06 Resignation of the Administrative Agent............................................. 49
Section 9.07 Syndication Agent; Documentation Agents; Managing Agent; Co-Agents.................. 49
ARTICLE X
MISCELLANEOUS......................................................................................... 49
Section 10.01 Notices............................................................................. 49
Section 10.02 Survival of Agreement............................................................... 50
Section 10.03 Binding Effect; Successors and Assigns.............................................. 50
Section 10.04 Successors and Assigns.............................................................. 51
Section 10.05 Expenses; Indemnity, Damage Waiver.................................................. 53
Section 10.06 Right of Setoff..................................................................... 54
Section 10.07 Applicable Law...................................................................... 55
Section 10.08 Waivers; Amendment.................................................................. 55
Section 10.09 Interest Rate Limitation............................................................ 56
Section 10.10 Entire Agreement.................................................................... 56
Section 10.11 Waiver of Jury Trial................................................................ 56
Section 10.12 Severability........................................................................ 56
Section 10.13 Counterparts........................................................................ 56
Section 10.14 Headings............................................................................ 56
Section 10.15 Jurisdiction; Consent to Service of Process......................................... 56
Section 10.16 USA Patriot Act Notification........................................................ 57
Exhibit A Form of Note
Exhibit B Form of Assignment and Assumption
Exhibit C Form of Administrative Questionnaire
Exhibit D Form of Commitment Increase Supplement
Schedule 2.01 Names, Commitments, Addresses of Initial Banks
Schedule 3.13 Significant Subsidiaries
Schedule 4.02(a)(ii) Required Governmental Approvals
Schedule 6.01 Existing Secured Indebtedness
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CREDIT AGREEMENT dated as of December 17, 2004, among AVISTA
CORPORATION, a Washington corporation, the Banks listed in
Schedule 2.01, BANK OF AMERICA, N.A., as Managing Agent,
KEYBANK NATIONAL ASSOCIATION, as Documentation Agent, U.S.
BANK, NATIONAL ASSOCIATION, as Documentation Agent, ▇▇▇▇▇
FARGO BANK, as Documentation Agent and Issuing Bank, UNION
BANK OF CALIFORNIA, N.A., as Syndication Agent and Issuing
Bank, and THE BANK OF NEW YORK, as Administrative Agent and
Issuing Bank.
The Borrower has requested that the Banks agree to make loans and buy
participations in letters of credit issued by the Issuing Bank on a revolving
credit basis during the period commencing with the date hereof and ending on the
Expiration Date (as defined herein) in an aggregate principal amount not in
excess of $350,000,000 at any time outstanding. The proceeds of such borrowings
and such letters of credit are to be used for general corporate purposes.
In consideration of the mutual covenants and agreements contained herein,
the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR" when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of
Article II.
"Administrative Agent" shall mean The Bank of New York, as administrative
agent for the Banks and the Issuing Bank under the Loan Documents, and any
successor Administrative Agent appointed pursuant to Section 9.06.
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit C.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%) equal to the greater of (a)
the Prime Rate in effect on such day and (b) the sum of (i) the Federal Funds
Effective Rate in effect for such day plus (ii) 1/2 of 1%. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, the Alternate Base Rate shall be determined
without regard to clause (b) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate shall be effective on the
date such change in the Prime Rate is adopted.
"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 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.
LC
Commitment Eurodollar Participation
Pricing Levels Fee Margin ABR Margin Fee
-------------- ---------- ---------- ---------- -------------
I 0.150% 0.750% 0.000% 0.750%
II 0.175% 0.875% 0.000% 0.875%
III 0.200% 1.000% 0.000% 1.000%
IV 0.300% 1.500% 0.500% 1.500%
V 0.500% 2.000% 1.000% 2.000%
For purposes of determining which Pricing Level is applicable in the foregoing
table the following rules will apply:
"Pricing Level I" will be applicable at any date if, at such date, the
Senior Debt Rating is Third Lowest Investment Grade or higher;
"Pricing Level II" will be applicable at any date if, at such date, the
Senior Debt Rating is Second Lowest Investment Grade and Pricing Level I
is not applicable;
"Pricing Level III" will be applicable at any date if, at such date, the
Senior Debt Rating is Lowest Investment Grade and neither Pricing Level I
nor Pricing Level II are applicable;
"Pricing Level IV" will be applicable at any date if, at such date, the
Senior Debt Rating is Highest Non-Investment Grade and none of Pricing
Level I, Pricing Level II or Pricing Level III are applicable; and
"Pricing Level V" will be applicable at any date if, at such date, the
Senior Debt Rating is Second Highest Non-Investment Grade or lower.
In the event that the Company's Senior Debt Ratings are split by one level, the
higher rating will apply. In the event the ratings are split by more than one
level, the level that is one level below the higher rating will apply.
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"Assignment and Assumption" shall mean an assignment and assumption
agreement entered into by a Bank and an assignee in the form of Exhibit B or
such other form as shall be approved by the Administrative Agent.
"Attributable Debt" shall mean, in connection with any Sale-Leaseback, the
present value (discounted in accordance with GAAP at the discount rate implied
in the lease) of the obligations of the lessee for rental payments during the
term of the lease.
"Availability Period" shall mean the period from and including the date of
this Agreement to but excluding the Expiration Date.
"Avista Utilities" means the operating division of the Borrower which
represents all the regulated utility operations of the Borrower that are
responsible for retail electric and natural gas distribution, electric
transmission services and electric generation and production.
"Avista Utilities EBITDA" means, for any period, (a) Avista Utilities Net
Income for such period plus (b) in each case, without duplication and to the
extent deducted in computing Avista Utilities Net Income for such period, the
sum for such period of (i) income tax expense, (ii) interest expense, (iii)
depreciation and amortization expense, (iv) any extraordinary or non-recurring
losses and (v) other non-cash items reducing such Avista Utilities Net Income
for such period, minus (c) in each case, without duplication and to the extent
added in computing Avista Net Income for such period, the sum of for such period
of (i) any extraordinary or non-recurring gains and (ii) other non-cash items
increasing Avista Utilities Net Income, all as determined in accordance with
GAAP.
"Avista Utilities Interest Expense" means, for any period, interest
expense of Avista Utilities for such period determined in accordance with GAAP.
"Avista Utilities Net Income" means, for any period, the net income or
loss of Avista Utilities for such period determined in accordance with GAAP.
"Bank" shall mean (a) any person listed on Schedule 2.01 and (b) any
person that has been assigned any or all of the rights or obligations of a Bank
pursuant to Section 10.04.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States.
"Bond Delivery Agreement" shall mean the Bond Delivery Agreement, dated as
of December 17, 2004, between the Borrower and the Administrative Agent.
"Borrower" shall mean Avista Corporation, a Washington corporation, and
its successors and assigns.
"Borrowing" shall mean a group of Loans of the same Type made on the same
date and, in the case of Eurodollar Loans, as to which a single Interest Period
is in effect.
"Business Day" shall mean any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York City;
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provided that when used in connection with a Eurodollar Loan the term "Business
Day" shall also exclude any day on which banks are not open for dealings in
deposits in dollars in the London interbank market.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 30% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Borrower; or (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by persons who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated; provided, that no
event described in clause (a) or clause (b) shall constitute a "Change in
Control" if, immediately after giving effect to the transaction that would
otherwise constitute a Change in Control, the Senior Debt Rating assigned by two
nationally recognized credit rating agencies is equal to or higher than Lowest
Investment Grade.
"Closing Date" shall mean the date on which the conditions precedent set
forth in Sections 4.01 and 4.02 are first satisfied or waived.
"Code" shall mean the Internal Revenue Code of 1986, as the same maybe
amended from time to time.
"Commitment" shall mean, with respect to each Bank, (a) (i) in the case of
a Bank listed on Schedule 2.01, the amount set forth opposite such Bank's name
under the heading "Commitment" on such Schedule and (ii) in the case of a Bank
that becomes a Bank pursuant to an assignment under Section 10.04, the amount
specified as assigned to such Bank in the Assignment and Assumption pursuant to
which such Bank becomes a Bank, in each case, as the same may be reduced from
time to time pursuant to Section 2.10(b), increased from time to time pursuant
to Section 2.10(c), or reduced or increased from time to time pursuant to
assignments in accordance with Section 10.04, or (b) as the context may require,
the obligation of such Bank to make Loans or acquire participations in Letters
of Credit in an aggregate unpaid principal amount not exceeding such amount.
"Commitment Fee" shall have the meaning assigned to such term in Section
2.06(a).
"Consolidated Total Capitalization" on any date means the sum, without
duplication, of the following with respect to the Borrower and its consolidated
subsidiaries: (a) total capitalization as of such date, as determined in
accordance with GAAP, (b) the current portion of liabilities which as of such
date would be classified in whole or part as long-term debt in accordance with
GAAP (it being understood that the noncurrent portion of such liabilities is
4
included in the total capitalization referred to in clause (a)), (c) all
obligations as lessee which, in accordance with GAAP, are capitalized as
liabilities (including the current portion thereof), and (d) all other
liabilities which would be classified as short-term debt in accordance with
GAAP.
"Consolidated Total Debt" on any date means the sum, without duplication,
of the following with respect to the Borrower and its consolidated subsidiaries:
(a) all liabilities which as of such date would be classified in whole or in
part as long-term debt in accordance with GAAP (including the current portion
thereof), (b) all obligations as lessee which, in accordance with GAAP, are
capitalized as liabilities (including the current portion thereof), (c) all
other liabilities which would be classified as short-term debt in accordance
with GAAP, and (d) all Guarantees of or by the Borrower.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and "Controlling" and "Controlled" shall have meanings correlative thereto.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of America.
"Equity Interests" shall mean shares of stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a person, and all options, warrants
or other rights to acquire any such equity ownership interests in a person.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which the Borrower is a member and
which is treated as a single employer under Section 414 of the Code.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Eurodollar Rate.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate in accordance with the provisions
of Article II.
"Eurodollar Rate" shall mean, for any Interest Period, the rate of
interest per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if more than one rate is
specified on
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Telerate Page 3750, the applicable rate shall be the arithmetic mean of all such
rates. If, for any reason, such rate is not available for any Interest Period,
"Eurodollar Rate" shall mean, for such Interest Period, the arithmetic mean
(rounded upward, if necessary, to the nearest 1/16 of 1%) of the rates quoted by
major banks in New York City selected by the Administrative Agent and reasonably
acceptable to the Borrower at approximately 11:00 a.m. (New York City time) two
Business Days prior to the first day of such Interest Period for loans in
dollars to leading European banks for a term comparable to such Interest Period
commencing on the first day of such Interest Period and in an amount of
$1,000,000.
"Event of Default" shall have the meaning assigned to such term in Article
VII.
"Evergreen Letter of Credit" shall mean a Letter of Credit that, by its
terms, provides that it shall be automatically renewed or extended for a stated
period of time at the end of its then-scheduled expiration date unless the
Issuing Bank notifies the beneficiary thereof prior to such expiration date that
the Issuing Bank elects not to renew or extend such Letter of Credit.
"Existing Credit Agreement" shall mean the Credit Agreement, dated as of
May 21, 2002, among Avista Corporation, the banks listed in Schedule 2.01
thereof, KeyBank National Association and Washington Mutual Bank, as Co-Agents,
U.S. Bank, National Association, as Managing Agent, Fleet National Bank and
▇▇▇▇▇ 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 the same has been amended, modified or supplemented to (and including)
the Closing Date.
"Expiration Date" shall mean December 16, 2009.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as reported on such
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
reported for any day that is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fees" shall mean the Commitment Fee and the other fees referred to in
Section 2.06.
"Financial Officer" of any corporation shall mean the chief financial
officer or treasurer of such corporation.
"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.
"First Mortgage" shall mean the Mortgage and Deed of Trust dated as of
June 1, 1939, made by the Borrower in favor of Citibank, N.A., as successor
trustee, as the same has been amended, modified or supplemented to date and as
the same may be further amended, modified or supplemented from time to time
hereafter.
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"First Mortgage Bond" shall mean a first mortgage bond of the Thirty-sixth
Series issued to the Administrative Agent on the Closing Date under a
Supplemental Indenture, in a principal amount equal to the total Commitments on
the date of execution and delivery of this Agreement, or any first mortgage bond
issued under a Supplemental Indenture to the First Mortgage in substitution for
a First Mortgage Bond, in each case in connection with a reduction or increase
in the total Commitments pursuant to Section 2.10(b) or (c).
"GAAP" shall mean generally accepted accounting principles, applied on a
consistent basis.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" of or by any person shall mean any obligation, contingent or
otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase property, securities or services for the purpose
of assuring the owner of such Indebtedness of the payment of such Indebtedness
or (c) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, however, that the term Guarantee
shall not include endorsements for collection or deposit, in either case in the
ordinary course of business.
"Highest Non-Investment Grade" shall mean that the Senior Debt Rating
assigned to the applicable Indebtedness of the Borrower is a rating which, as
reasonably determined by the Administrative Agent, would be the highest rating
granted by the applicable credit rating agency which is generally not treated as
"investment grade" in the ratings regime of that credit rating agency.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements relating to
property or assets purchased by such person, (e) all obligations of such person
issued or assumed as the deferred purchase price of property or services (other
than trade payables incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such person, whether or not the obligations
secured thereby have been assumed, but limited, if such obligations are without
recourse to such person, to the lesser of the principal amount of such
Indebtedness or the fair market value of such property, (g) all Guarantees by
such person of Indebtedness of others, (h) all Capital Lease Obligations of such
person, (i) all obligations of such person in respect of interest rate
protection agreements, foreign currency exchange agreements or other interest or
exchange rate hedging arrangements (the amount of any such obligation to be the
amount that would be payable upon the acceleration,
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termination or liquidation thereof) and (j) all obligations of such person as an
account party in respect of letters of credit and bankers' acceptances. The
Indebtedness of any person shall include the Indebtedness of any partnership in
which such person is a general partner.
"Interest Payment Date" shall mean (a) in the case of any Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and (b) in addition, in the case of a Eurodollar Loan that is part of a
Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day that would have been an Interest Payment Date had successive
Interest Periods of three months' duration been applicable to such Borrowing.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on, as the Borrower
may elect, the date 2 weeks thereafter or the numerically corresponding day (or,
if there is no numerically corresponding day, on the last day) in the calendar
month that is 1, 2, 3 or 6 months thereafter, and (b) as to any ABR Borrowing,
the period commencing on the date of such Borrowing and ending on the earlier of
(i) the next succeeding March 31, June 30, September 30 or December 31 and (ii)
the Expiration Date; provided, however, that if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of a Eurodollar Borrowing only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"Investment" by any person shall mean (a) the purchase or other
acquisition of any Equity Interest in any other person, (b) any loan, advance or
extension of credit to any other person, (c) any contribution to the capital of
any other person, (d) any Guarantee of the Liabilities of any other person or
(e) any other investment in any other person.
"Issuing Bank" shall mean with respect to each Letter of Credit, The Bank
of New York, Union Bank of California, N.A., or ▇▇▇▇▇ Fargo Bank, acting in its
capacity as the issuer of such Letter of Credit, and its successors in such
capacity. The Issuing Bank of a Letter of Credit may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to any Letters of Credit issued by such Affiliate.
"Issuing Bank Exposure" shall mean, with respect to any Issuing Bank at
any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters
of Credit issued by such Issuing Bank at such time plus (b) the aggregate amount
of all LC Disbursements by such Issuing Bank that have not yet been reimbursed
by or on behalf of the Borrower at such time.
"LC Disbursement" shall mean a payment made by the Issuing Bank pursuant
to a Letter of Credit.
"LC Exposure" shall mean, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time.
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The LC Exposure of any Bank at any time shall be its Pro Rata Share of the total
LC Exposure at such time.
"LC Participation Fee" shall have the meaning assigned to such term in
Section 2.06(b).
"Letter of Credit" shall mean each letter of credit issued pursuant to
this Agreement and each letter of credit issued and outstanding under the
Existing Credit Agreement on the Closing Date.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the First Mortgage Bond, the
First Mortgage, the Supplemental Indenture, the Bond Delivery Agreement, any
Notes, and any letter of credit applications executed and delivered by the
Borrower in connection with Letters of Credit.
"Loans" shall mean loans made by the Banks to the Borrower pursuant to
this Agreement.
"Lowest Investment Grade" shall mean that the Senior Debt Rating assigned
to the applicable Indebtedness of the Borrower is a rating which, as reasonably
determined by the Administrative Agent, would be the lowest rating granted by
the applicable credit rating agency which is generally treated as "investment
grade" in the ratings regime of that credit rating agency.
"Margin Stock" shall have the meaning given such term under Regulation U.
"Material Adverse Effect" shall mean an effect on the business, assets,
operations or financial condition of the Borrower and the Subsidiaries taken as
a whole which could reasonably be expected to have a material adverse effect on
the creditworthiness of the Borrower.
"Notes" shall mean any promissory notes of the Borrower, substantially in
the form of Exhibit A, evidencing Loans, as may be delivered pursuant to Section
2.04.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"person" shall mean a corporation, association, partnership, trust,
limited liability company, organization, business, individual or government or
governmental agency or political subdivision thereof.
"Plan" shall mean any pension plan subject to the provisions of Title IV
of ERISA or Section 412 or the Code which is maintained for employees of the
Borrower or any ERISA Affiliate.
9
"Prime Rate" means the prime U.S. commercial lending rate of The Bank of
New York, as publicly announced to be in effect from time to time. The Prime
Rate shall be adjusted automatically, without notice, on the effective date of
any change in such prime U.S. commercial lending rate. The Prime Rate is not
necessarily The Bank of New York's lowest rate of interest.
"Pro Rata Share" shall mean, with respect to any Bank, the percentage of
the total Commitments represented by such Bank's Commitment. If the Commitments
have terminated or expired, the Pro Rata Shares of the Banks shall be determined
based upon the Commitments most recently in effect.
"Register" shall have the meaning given to such term in Section 10.04(c).
"Regulation D" shall mean Regulation D of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof and
shall include any successor or other regulation or official interpretation of
the Board relating to reserve requirements applicable to member banks of the
Federal Reserve System.
"Regulation U" shall mean Regulation U of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Reportable Event" shall mean any reportable event as defined in Section
4043(b) of ERISA or the regulations issued thereunder with respect to a Plan
(other than a Plan maintained by an ERISA Affiliate which is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code).
"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.
"Responsible Officer" of any corporation shall mean any executive officer
or Financial Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement.
"Revolving Credit Exposure" shall mean, with respect to any Bank at any
time, the sum of the outstanding principal amount of such Bank's Loans and its
LC Exposure at such time.
"RTO Transaction" shall mean any sale, transfer or other disposition of
transmission assets entered into in connection with the formation of a regional
transmission organization pursuant to or in a manner consistent with regulatory
requirements applicable to the Borrower.
"Sale-Leaseback" shall mean any arrangement whereby any person shall sell
or transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property which it intends to use for substantially the same
purpose or purposes as the property being sold or transferred.
10
"Second Highest Non-Investment Grade" shall mean that the Senior Debt
Rating assigned to the applicable Indebtedness of the Borrower is a rating
which, as reasonably determined by the Administrative Agent, would be the rating
granted by the applicable credit rating agency which is generally not treated as
"investment grade" in the ratings regime of that credit rating agency that is
lower than Highest Non-Investment Grade.
"Second Lowest Investment Grade" shall mean that the Senior Debt Rating
assigned to the applicable Indebtedness of the Borrower is a rating which, as
reasonably determined by the Administrative Agent, would be the rating granted
by the applicable credit rating agency which is generally treated as "investment
grade" in the ratings regime of that credit rating agency that is higher than
Lowest Investment Grade but not Third Lowest Investment Grade.
"Senior Debt Rating" means, as of any date of determination, as of the
close of business on such date: (a) if the Loans are secured, the rating
assigned to the Borrower's most senior secured public Indebtedness, and (b) if
the Loans are unsecured, the rating assigned to the Borrower's most senior
unsecured public Indebtedness, in either such case by a nationally recognized
credit rating agency selected by the Borrower, reasonably approved by the
Administrative Agent and not objected to by the Required Lenders within five
Business Days following notice of such designation.
"Significant Subsidiary" shall mean a Subsidiary meeting any one of the
following conditions: (a) the investments in and advances to such Subsidiary by
the Borrower and the other Subsidiaries, if any, as at the end of the Borrower's
latest fiscal quarter exceeded 10% of the total assets of the Borrower and its
Subsidiaries at such date, computed and consolidated in accordance with GAAP; or
(b) the Borrower's and the other Subsidiaries' proportionate share of the total
assets (after intercompany eliminations) of such Subsidiary as at the end of the
Borrower's latest fiscal quarter exceeded 10% of the total assets of the
Borrower and its Subsidiaries at such date, computed and consolidated in
accordance with GAAP; or (c) the equity in the income from continuing operations
before income taxes, extraordinary items and cumulative effect of a change in
accounting principles of such Subsidiary for the period of four consecutive
fiscal quarters ending at the end of the Borrower's latest fiscal quarter
exceeded 10% of such income of the Borrower and its Subsidiaries for such
period, computed and consolidated in accordance with GAAP; or (d) such
Subsidiary is the parent of one or more Subsidiaries and, together with such
Subsidiaries would, if considered in the aggregate, constitute a Significant
Subsidiary.
"Statutory Reserves" shall mean, with respect to any Eurodollar Loan for
any date, a fraction (expressed as a decimal) the numerator of which is the
number one and the denominator of which is the number one minus the aggregate of
the maximum reserve percentages (including, without limitation, any marginal,
special, emergency or supplemental reserves) in effect for such date with
respect to Eurodollar funding (including with respect to Eurocurrency
Liabilities as defined in Regulation D) in an amount approximately equal to such
Eurodollar Loan and with a term approximately equal to the Interest Period for
such Eurodollar Loan expressed as a decimal established by the Board or by any
other United States banking authority to which the Administrative Agent is
subject. Such reserve percentages shall include, without limitation, those
imposed under Regulation D. Statutory Reserves shall be adjusted automatically
on and as of the effective date of any change in any reserve percentage.
11
"subsidiary" shall mean, for any person (the "Parent"), any corporation,
partnership or other entity of which securities or other ownership interests
having by the terms thereof ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions of such
corporation, partnership or other entity (irrespective of whether or not at the
time securities or other ownership interests of any other class or classes of
such corporation, partnership or other entity shall have or might have voting
power by reason of the happening of any contingency) are at the time directly or
indirectly owned or controlled by the Parent or one or more of its subsidiaries
or by the Parent and one or more of its subsidiaries.
"Subsidiary" shall mean a subsidiary of the Borrower.
"Supplemental Indenture" shall mean the Thirty-seventh Supplemental
Indenture, dated as of December 1, 2004, between the Borrower and Citibank,
N.A., as trustee under the First Mortgage, and any supplemental indenture to the
First Mortgage, in form and substance satisfactory to the Administrative Agent,
pursuant to which a First Mortgage Bond is issued in substitution for a First
Mortgage Bond, in connection with a reduction or increase in the total
Commitments pursuant to Section 2.10(b) or (c).
"Third Lowest Investment Grade" shall mean that the Senior Debt Rating
assigned to the applicable Indebtedness of the Borrower is a rating which, as
reasonably determined by the Administrative Agent, would be the rating granted
by the applicable credit rating agency which is generally treated as "investment
grade" in the ratings regime of that credit rating agency that is higher than
Second Lowest Investment Grade.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, "Rate" shall mean, in the case of
a Loan or Borrowing, the Eurodollar Rate or the Alternate Base Rate.
Section 1.02 Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. 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 Issuing Banks
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
12
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.
ARTICLE II
THE CREDITS
Section 2.01 Commitments. (a) Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each Bank
agrees, severally and not jointly, to make Loans to the Borrower, at any time
and from time to time during the Availability Period, in an aggregate principal
amount at any time outstanding that will not result in (a) the Revolving Credit
Exposure of any Bank exceeding such Bank's Commitment or (b) the total Revolving
Credit Exposures exceeding the total Commitments. Within the limits set forth in
the preceding sentence, the Borrower may borrow, pay or prepay and reborrow
Loans during the Availability Period, subject to the terms, conditions and
limitations set forth herein.
Section 2.02 Loans. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans made by the Banks ratably in accordance with their
Commitments. The failure of any Bank to make any Loan required to be made
hereunder shall not in itself relieve any other Bank of its obligation to lend
hereunder (it being understood, however, that no Bank shall be responsible for
the failure of any other Bank to make any Loan required to be made by such other
Bank). The Loans comprising each Borrowing shall be in an aggregate principal
amount of not less than $1,000,000.
(b) Subject to Section 2.09, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans, as the Borrower may request pursuant
to Section 2.03. Each Bank may at its option fulfill its Commitment with respect
to any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Bank to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement or any applicable Note. Borrowings of more than one Type
may be outstanding at the same time; provided, however, that the Borrower shall
not be entitled to request any Borrowing which, if made, would result in an
aggregate of more than fourteen separate Eurodollar Loans of any Bank being
outstanding hereunder at any one time. For purposes of the foregoing, Loans
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Loans.
(c) Subject to paragraph (e) below, each Bank shall make a Loan in
the amount of its Pro Rata Share of each Borrowing on the proposed date thereof
by wire transfer of immediately available funds to the Administrative Agent in
New York, New York, not later than 2:00 p.m., New York City time, and the
Administrative Agent shall by 3:00 p.m., New York City time, make available to
the Borrower in immediately available funds the amounts so received (i) by wire
transfer for credit to the account of the Borrower with ▇▇▇▇▇ Fargo Bank,
Account Number ▇▇▇▇▇ ▇▇▇▇▇; ABA # ▇▇▇▇▇▇▇▇▇, re: Avista Corp. or (ii) as
otherwise specified by the Borrower in its notice of Borrowing or, if a
Borrowing shall not occur on such date because any
13
condition precedent herein specified shall not have been met, return the amounts
so received to the respective Banks. Unless the Administrative Agent shall have
received notice from a Bank prior to the date of any Borrowing that such Bank
will not make available to the Administrative Agent such Bank's portion of such
Borrowing, the Administrative Agent may assume that such Bank has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with this paragraph (c) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have made
such portion available to the Administrative Agent, such Bank and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Bank, the Federal Funds Effective Rate. If such Bank
shall repay to the Administrative Agent such corresponding amount, such amount
shall constitute such Bank's Loan as part of such Borrowing for purposes of this
Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Expiration Date.
(e) The Borrower may refinance all or any part of any Borrowing with
a new Borrowing of the same or a different Type, subject to the conditions and
limitations set forth in this Agreement. Any Borrowing or part thereof so
refinanced shall be deemed to be repaid or prepaid in accordance with Section
2.04 or 2.11, as applicable, with the proceeds of the new Borrowing, and the
proceeds of the new Borrowing, to the extent they do not exceed the principal
amount of the Borrowing being refinanced, shall not be paid by the Banks to the
Administrative Agent or by the Administrative Agent to the Borrower pursuant to
paragraph (c) above.
Section 2.03 Notice of Borrowings. (a)To request a Borrowing, the
Borrower shall give the Administrative Agent notice thereof (a) in the case of a
Eurodollar Borrowing, not later than 12:00 noon, New York City time, three
Business Days before a proposed borrowing and (b) in the case of an ABR
Borrowing, not later than 12:00 noon, New York City time, the day of a proposed
borrowing. Such notice shall be irrevocable and shall in each case refer to this
Agreement and specify (i) whether the Borrowing then being requested is to be a
Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which
shall be a Business Day) and the amount thereof; and (iii) if such Borrowing is
to be a Eurodollar Borrowing, the Interest Period with respect thereto. If no
election as to the Type of Borrowing is specified in any such notice, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period with
respect to any Eurodollar Borrowing is specified in any such notice, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. If the Borrower shall not have given notice in accordance with this
Section 2.03 of its election to refinance a Borrowing or given notice to the
Administrative Agent not later than 12:00 noon, New York City time, on the last
day of the Interest Period applicable to such Borrowing that it will not
refinance such Borrowing, then the Borrower shall be deemed to have given notice
of an election to refinance such Borrowing with an ABR Borrowing. The
Administrative Agent shall promptly advise the
14
Banks of any notice given pursuant to this Section 2.03 and of each Bank's
portion of the requested Borrowing.
Section 2.04 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay each Bank the then unpaid principal
amount of each Loan of such Bank on the last day of the Interest Period
applicable to such Loan and on the Expiration Date. Each Loan shall bear
interest on the outstanding principal balance thereof as set forth in Section
2.07.
(b) Each Bank shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such Bank
resulting from each Loan made by such Bank, including the amounts of principal
and interest payable and paid to such Bank from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount and date of each Loan made hereunder, the Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal, interest or fees due and payable or to become due and payable from
the Borrower to each Bank hereunder and (iii) the amount of any principal,
interest or fees received by the Administrative Agent hereunder for the account
of the Banks and each Bank's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Bank or the Administrative Agent to maintain such accounts or any
error therein shall not in any manner affect the obligation of the Borrower to
repay the Loans in accordance with the terms of this Agreement.
(e) Any Bank may request that Loans made by it be evidenced by a
Note. In such event, the Borrower shall prepare, execute and deliver to such
Bank a Note payable to the order of such Bank (or, if requested by such Bank, to
such Bank and its registered assigns). Thereafter, the Loans evidenced by such
Note and interest thereon shall at all times (including after assignment
pursuant to Section 10.04) be represented by one or more Notes in such form
payable to the order of the payee named therein (or, if such Note is a
registered Note, to such payee and its registered assigns).
Section 2.05 Letters of Credit. (a) General. Subject to the terms
and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the applicable Issuing Bank, at any time and from time
to time during the Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, an Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. 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
15
electronic communication, if arrangements for doing so have been approved by the
applicable Issuing Bank) to the applicable Issuing Bank 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. If requested by such 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 a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the total LC Exposure shall not exceed $150,000,000 and (ii) the
total Revolving Credit Exposures shall not exceed the total Commitments.
(c) Expiration Date. Each Letter of Credit shall expire (or, in the
case of an Evergreen Letter of Credit, shall expire if the applicable Issuing
Bank gives the required notice of non-renewal or non-extension) not later than
the close of business on the date that is five Business Days prior to the first
anniversary of the Expiration Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Banks, such
Issuing Bank hereby grants to each Bank, and each Bank hereby acquires from such
Issuing Bank, a participation in such Letter of Credit equal to such Bank's Pro
Rata Share of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Bank hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of such Issuing Bank, such Bank's Pro Rata Share of (i) each LC
Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the
date due as provided in paragraph (e) of this Section and (ii) any reimbursement
payment required to be refunded to the Borrower for any reason to the extent
received by such Bank. Each Bank acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank of a Letter of Credit shall
make any LC Disbursement in respect of such Letter of Credit, the Borrower shall
reimburse such LC Disbursement by paying to the Administrative Agent an amount
equal to such LC Disbursement not later than 12:00 noon, New York City time, on
(i) the Business Day that the Borrower receives notice of such LC Disbursement,
if such notice is received prior to 10:00 a.m., New York City time, on the day
of receipt, or (ii) the Business Day immediately following the day that the
Borrower receives such notice, if such notice is not received prior to such time
on the day of receipt; provided that, if such LC Disbursement is not less than
$1,000,000, the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section
16
2.03 that such payment be financed with an ABR Borrowing in an equivalent amount
and, to the extent so financed, the Borrower's obligation to make such payment
shall be discharged and replaced by the resulting ABR Borrowing. If the Borrower
fails to make such payment when due, the Administrative Agent shall notify each
Bank of the applicable LC Disbursement, the payment then due from the Borrower
in respect thereof and such Bank's Pro Rata Share thereof. Promptly following
receipt of such notice, each Bank shall pay to the Administrative Agent its Pro
Rata Share of the payment then due from the Borrower, in the same manner as
provided in Section 2.02 with respect to Loans made by such Bank (and Section
2.02 shall apply, mutatis mutandis, to the payment obligations of the Banks),
and the Administrative Agent shall promptly pay to such Issuing Bank the amounts
so received by it from the Banks. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Banks have made payments pursuant to this paragraph
to reimburse the Issuing Bank, then to such Banks and such Issuing Bank as their
interests may appear. Any payment made by a Bank pursuant to this paragraph to
reimburse the Issuing Bank of a Letter of Credit for any LC Disbursement (other
than the funding of ABR Loans as contemplated above) shall not constitute a Loan
and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Banks nor any Issuing Bank, nor any of their
respective directors, officers, employees or agents, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the applicable Issuing Bank; provided that the
foregoing shall not be construed to excuse the Issuing Bank of a Letter of
Credit from liability to the Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by the Borrower to the extent permitted by applicable law) suffered by the
Borrower that are caused by such Issuing Bank's gross negligence or willful
misconduct. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of the Issuing Bank of a Letter of
Credit (as finally determined by a court of competent jurisdiction), such
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of
17
a Letter of Credit, the applicable Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank of a Letter of Credit
shall, promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under such Letter of Credit. Such Issuing Bank
shall promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether the Issuing Bank
has made or will make an LC Disbursement thereunder; provided that any failure
to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse such Issuing Bank and the Banks with respect to any such
LC Disbursement.
(h) Interim Interest. If the Issuing Bank of a Letter of Credit
shall make any LC Disbursement, then, unless the Borrower shall reimburse such
LC Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to ABR
Loans; provided that, if the Borrower fails to reimburse such LC Disbursement
when due pursuant to paragraph (e) of this Section, then Section 2.08 shall
apply. Interest accrued pursuant to this paragraph shall be for the account of
such Issuing Bank, except that interest accrued on and after the date of payment
by any Bank pursuant to paragraph (e) of this Section to reimburse the Issuing
Bank shall be for the account of such Bank to the extent of such payment.
(i) Cash Collateralization. If any Event of Default shall occur and
be continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent, at the request of any Issuing Bank of an outstanding
Letter of Credit or the Required Banks, demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Issuing Bank and the Banks, an amount in cash equal to the total
LC Exposure as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Borrower described in clause (g) or (h) of
Article VII. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower
under the Loan Documents. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower's risk and expense, such deposits shall
not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Banks for LC Disbursements for
which they have not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the total LC Exposure at such time or be applied to satisfy other obligations of
the Borrower under the Loan Documents. If the Borrower is required to provide an
amount of cash collateral hereunder as a
18
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived.
(j) Letters of Credit Expiring After the Expiration Date. In the
event that any Letters of Credit are outstanding on the Expiration Date and
shall have an expiration date thereafter, the Borrower shall either (i) deposit
in an account with the Administrative Agent an amount in cash equal to the total
LC Exposure as of such date, to be held and applied as provided in Section
2.05(i), or (ii) enter into an agreement with the Issuing Bank (which the
Issuing Bank may do in its sole and absolute discretion) effective as of the
Expiration Date whereby such Letters of Credit shall thereafter be governed by
another agreement and shall cease to be governed by this Agreement, whereupon
all participations of the Banks in such Letters of Credit shall automatically
terminate, provided that such agreement and termination shall not affect the
obligation of the Borrower with respect to amounts accrued or owing at such time
under the Loan Documents with respect to such Letters of Credit.
(k) Certain Letters of Credit Outstanding Under the Existing Credit
Agreement. Each Letter of Credit that is outstanding under the Existing Credit
Agreement on the Closing Date shall automatically, and without further action on
the part of the Borrower or the applicable Issuing Bank, be deemed to be
"issued" under paragraph (b) of this Section 2.05 and shall be a "Letter of
Credit" for all purposes hereunder.
Section 2.06 Fees. (a) The Borrower agrees to pay to each Bank,
through the Administrative Agent, on the first Business Day of January, April,
July and October of each year and on the date on which the Commitment of such
Bank shall be reduced or terminated as provided herein, a commitment fee at the
Applicable Rate (a "Commitment Fee") on the average daily unused amount of the
Commitment of such Bank during the preceding quarter (or shorter period
commencing with the date hereof or ending with the Expiration Date or the date
on which the Commitment of such Bank shall be reduced or terminated). The
Commitment Fees shall accrue on each day at a rate per annum equal to the
Applicable Rate in effect on such day. All Commitment Fees shall be computed on
the basis of a year of 365 or 366 days, as the case may be, and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day). The Commitment Fee due to each Bank shall commence to accrue on the
date of this Agreement and shall cease to accrue on the date on which the
Commitment of such Bank shall be terminated as provided herein.
(b) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Bank a participation fee with respect to its participations
in Letters of Credit, which shall accrue at the Applicable Rate (an "LC
Participation Fee") on the average daily amount of such Bank's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the date of this Agreement to but excluding
the later of the date on which such Bank's Commitment terminates and the date on
which such Bank ceases to have any LC Exposure, and (ii) to the Administrative
Agent for the account of each Issuing Bank a fronting fee for Letters of Credit
issued by such Issuing Bank, which shall accrue at the rate per annum of 0.125%
on the average daily amount of such Issuing Bank's LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements of such Issuing
Bank) during the period from and including the date of this Agreement to but
excluding
19
the later of the date of termination of the Commitments and the date on which
there ceases to be any LC Exposure. LC Participation Fees and Letter of Credit
fronting fees shall be payable on the first Business Day of January, April, July
and October of each year and on the date on which the Commitments terminate as
provided herein; provided that all such fees accruing after the date on which
the Commitments terminate shall be payable on demand. All LC Participation Fees
and Letter of Credit fronting fees shall be computed on the basis of a year of
365 or 366 days, as the case may be, and shall be payable for the actual number
of days elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, the fees separately agreed between the Administrative Agent and the
Borrower.
(d) Once paid, none of the Fees shall be refundable under any
circumstances.
Section 2.07 Interest on Loans. (a) Subject to the provisions of
Section 2.08, the Loans comprising each ABR Borrowing shall bear interest at a
rate per annum equal to the Alternate Base Rate plus the Applicable Rate.
(b) Subject to the provisions of Section 2.08, the Loans comprising
each Eurodollar Borrowing shall bear interest at a rate per annum equal to the
Eurodollar Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
(d) Interest computed on the basis of the Alternative Base Rate
(including interest payable on overdue amounts under Section 2.08) shall be
computed on the basis of a year of 365 or 366 days, as the case may be, for the
actual number of days elapsed so long as the Prime Rate is the applicable rate
for calculation of the Alternate Base Rate, and on the basis of a year of 360
days for the actual number of days elapsed so long as the Federal Funds
Effective Rate is the applicable rate for calculation of the Alternate Base
Rate. Interest computed on the basis of the Eurodollar Rate (including interest
payable on overdue amounts under Section 2.08) shall be computed on the basis of
a year of 360 days for the actual number of days elapsed.
(e) The applicable Alternate Base Rate or Eurodollar Rate for each
Interest Period or day within an Interest Period, as the case may be, shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
Section 2.08 Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due under the Loan Documents, by acceleration or otherwise, the Borrower shall
on demand from time to time pay interest, to the extent permitted by law, on
such defaulted amount up to (but not including) the date of actual payment
(after as well as before judgment) at a rate per annum equal to the Alternate
Base Rate plus the Applicable Rate plus 2% (except that the interest rate
applicable to an overdue amount of principal of a Eurodollar Borrowing that
became due on a day other than on the last day of the Interest Period applicable
thereto shall, for the period until the last day of such Interest Period, be
equal to 2% above the rate that would otherwise be applicable thereto during
such Interest Period).
20
Section 2.09 Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
in good faith determined that dollar deposits in the principal amounts of the
Loans comprising such Borrowing are not generally available in the London
interbank market, or that the rates at which such dollar deposits are being
offered will not adequately and fairly reflect the cost to the majority in
interest of the Banks of making or maintaining their Eurodollar Loans during
such Interest Period, or that reasonable means do not exist for ascertaining the
Eurodollar Rate, the Administrative Agent shall, as soon as practicable
thereafter, give notice of such determination to the Borrower and the Banks. In
the event of any such determination, any request by the Borrower for a
Eurodollar Borrowing pursuant to Section 2.03 shall, until the Administrative
Agent shall have advised the Borrower and the Banks that the circumstances
giving rise to such notice no longer exist, be deemed to be a request for an ABR
Borrowing. Each determination by the Administrative Agent hereunder shall be
conclusive absent manifest error.
Section 2.10 Termination, Reduction and Increase in Commitments. (a)
The Commitments shall be automatically terminated on the Expiration Date.
(b) Upon at least three Business Days' prior irrevocable notice to
the Administrative Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the unused portion
of the Commitments; provided, however, that (i) each partial reduction of the
Commitments shall be in an aggregate amount of not less than $5,000,000 and (ii)
the Borrower shall not terminate or reduce the Commitments if, after giving
effect to any concurrent prepayment of the Loans in accordance with Section
2.11, the sum of the Revolving Credit Exposures would exceed the total
Commitments.
(c) At any time following the date of this Agreement and prior to
the Expiration Date, the aggregate amount of the Commitments may, at the option
of the Borrower, be increased by an amount not in excess of $100,000,000, either
by new Banks establishing Commitments or by one or more then-existing Banks
increasing their Commitments (each such new Bank or Bank increasing its
Commitment, an "Additional Commitment Bank"); provided that (a) each Additional
Commitment Bank shall be selected or approved by the Borrower and shall be
reasonably acceptable to the Administrative Agent and the Issuing Banks, (b) no
Bank shall have an obligation to become an Additional Commitment Bank, (c) no
Default or Event of Default shall exist immediately prior to or after the
effective date of the increase in the Commitments, (d) each increase in the
Commitments shall be in an aggregate amount not less than $10,000,000 and
multiples of $5,000,000 in excess thereof, (e) the aggregate amount of the
increase in the Commitments after the date of this Agreement shall not exceed
$100,000,000, and (f) no increase in the Commitments shall become effective
unless and until (i) the Borrower, the Administrative Agent, the Issuing Banks
and each Additional Commitment Bank shall have executed and delivered an
agreement substantially in the form of Exhibit D (a "Commitment Increase
Supplement") and (ii) if the Loans are secured, the Administrative Agent shall
have received a substitute First Mortgage Bond in an amount equal to the total
Commitments after giving effect to the increase in the Commitments, together
with a supplemental indenture, bond delivery agreement, mortgage title
insurance, legal opinions and other certificates and documents with respect
thereto comparable to those delivered pursuant to Section 4.02(a) with respect
to the First Mortgage Bond issued under the First Mortgage and delivered to the
Administrative Agent
21
on the Closing Date, in each case in form and substance satisfactory to the
Administrative Agent. On the effective date of an increase in the Commitments,
each Additional Commitment Bank shall purchase, as an assignment from each other
existing Bank, the portion of such other Bank's 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 Additional Commitment Bank shall pay the aggregate purchase price
payable by it to the Administrative Agent on the effective date of an increase
in the Commitments and the Administrative Agent shall promptly forward to each
other Bank the portion thereof payable to it. Upon payment of such purchase
price, each other Bank shall be automatically deemed to have sold and made such
an assignment to such Additional Commitment Bank and shall, to the extent of the
interest assigned, be released from its obligations under the Loan Documents,
and such Additional Commitment Bank shall be automatically deemed to have
purchased and assumed such an assignment from each other 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.
Section 2.11 Prepayment. The Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, upon at
least three Business Days' prior notice to the Administrative Agent, in the case
of a prepayment of a Eurodollar Borrowing, and upon at least one Business Day's
prior notice, in the case of a prepayment of an ABR Borrowing; provided,
however, that each partial prepayment shall be in an amount of not less than
$1,000,000. Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.11 shall be subject to Section 2.14 but otherwise without premium or penalty.
All prepayments under this Section 2.11 shall be accompanied by accrued interest
on the principal amount being prepaid to (but excluding) the date of payment.
Section 2.12 Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
there is adopted any new law, rule or regulation or any change in applicable law
or regulation or in the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of law) which shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by any Bank (except
any such reserve requirement which is reflected in the Eurodollar Rate) or shall
impose on such Bank or any Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Bank or any
Letter of Credit or participation therein, and the result of any of the
foregoing shall be to increase the cost to such Bank of making or maintaining
22
any Eurodollar Loan or to increase the cost to such Bank or Issuing Bank of
participating in, issuing or maintaining any Letter of Credit or to reduce the
amount of any sum received or receivable by such Bank or Issuing Bank hereunder
or under any Notes (whether of principal, interest or otherwise) by an amount
deemed by such Bank to be material, then the Borrower will pay to such Bank or
Issuing Bank, as the case may be, upon demand such additional amount or amounts
as will compensate such Bank or Issuing Bank for such additional costs incurred
or reduction suffered.
(b) If any Bank or Issuing Bank shall have determined that the
applicability of any law, rule, regulation, agreement or guideline adopted after
the date hereof regarding capital adequacy, or any change in any of the
foregoing or the adoption after the date hereof of any change in any law, rule,
regulation, agreement or guideline existing on the date hereof or in the
interpretation or administration of any of the foregoing by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank or Issuing Bank (or any
lending office thereof) or any Bank's or Issuing Bank's holding company with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Bank's or Issuing Bank's
capital or on the capital of such Bank's or Issuing Bank's holding company, if
any, with respect to this Agreement or Loans made by such Bank or any Letter of
Credit or participation therein to a level below that which such Bank or Issuing
Bank or such Bank's or Issuing Bank's holding company could have achieved but
for such applicability, adoption, change or compliance (taking into
consideration such Bank's or Issuing Bank's policies and the policies of such
Bank's or Issuing Bank's holding company with respect to capital adequacy) by an
amount deemed by such Bank or Issuing Bank to be material, then from time to
time the Borrower shall pay to such Bank or Issuing Bank, as the case may be,
such additional amount or amounts as will compensate such Bank or Issuing Bank
or such Bank's or Issuing Bank's holding company for any such reduction
suffered. It is acknowledged that this Agreement is being entered into by the
Banks and the Issuing Banks on the understanding that the Banks and the Issuing
Banks will not be required to maintain capital against their obligations to make
Loans or issue Letters of Credit or purchase participations therein under
currently applicable laws, regulations and regulatory guidelines. In the event
Banks or the Issuing Banks shall be advised by any Governmental Authority or
shall otherwise determine on the basis of pronouncements of any Governmental
Authority that such understanding is incorrect, it is agreed that the Banks and
the Issuing Banks will be entitled to make claims under this paragraph based
upon market requirements prevailing on the date hereof for commitments under
comparable credit facilities against which capital is required to be maintained.
(c) A certificate of a Bank or Issuing Bank setting forth in
reasonable detail such amount or amounts as shall be necessary to compensate
such Bank or Issuing Bank or such Bank's or Issuing Bank's holding company as
specified in paragraph (a) or (b) above, as the case may be, and the manner in
which such Bank or Issuing Bank has determined the same, shall be delivered to
the Borrower and shall be conclusive absent manifest error. The Borrower shall
pay the Bank or Issuing Bank, as the case may be, the amount shown as due on any
such certificate delivered by it within 10 days after its receipt of the same.
23
(d) Failure on the part of any Bank or Issuing Bank to demand
compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital with respect to any period shall
not constitute a waiver of such Bank's or Issuing Bank's right to demand
compensation with respect to such period or any other period. The protection of
this Section shall be available to each Bank and Issuing Bank regardless of any
possible contention of the invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall have occurred or
been imposed.
Section 2.13 Change in Legality. (a) Notwithstanding any other
provision herein, if any change in, or adoption of, any law or regulation or in
the interpretation thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any Bank to
make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by notice to the
Borrower and to the Administrative Agent, such Bank may:
(i) declare that Eurodollar Loans will not thereafter be made
by such Bank hereunder, whereupon any request by the Borrower for a
Eurodollar Borrowing shall, as to such Bank only, be deemed a request for
an ABR Loan unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it
be converted to ABR Loans, in which event all such Eurodollar Loans shall
be automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Bank shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Bank or the
converted Eurodollar Loans of such Bank shall instead be applied to repay the
ABR Loans made by such Bank in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.13, a notice to the Borrower by
any Bank shall be effective as to each Eurodollar Loan, if lawful, on the last
day of the Interest Period currently applicable to such Eurodollar Loan.
Section 2.14 Indemnity. The Borrower shall indemnify each Bank
against any loss or expense which such Bank may sustain or incur as a
consequence of (a) any failure by the Borrower to fulfill on the date of any
Eurodollar Borrowing hereunder the applicable conditions set forth in Article
IV, (b) any failure by the Borrower to borrow any Eurodollar Loan hereunder
after irrevocable notice of such borrowing has been given or deemed given
pursuant to Section 2.03, (c) any payment or prepayment of a Eurodollar Loan
required by any provision of this Agreement or otherwise made or deemed made on
a date other than the last day of the Interest Period applicable thereto, (d)
any assignment of a Eurodollar Loan pursuant to Section 2.19(b) made or deemed
made on a date other than the last day of the Interest Period applicable
thereto, or (e) any default in payment or prepayment of the principal amount of
any Eurodollar Loan or any part thereof or interest accrued thereon, as and when
due and payable (at the due date thereof, whether by scheduled maturity,
acceleration, irrevocable notice of prepayment or otherwise) including, in each
such case, any loss or reasonable expense sustained or incurred or
24
to be sustained or incurred in liquidating or employing deposits from third
parties acquired to effect or maintain such Loan or any part thereof as a
Eurodollar Loan. Such loss or reasonable expense shall include an amount equal
to the excess, if any, as reasonably determined by such Bank, of (i) its cost of
obtaining the funds for the Eurodollar Loan being paid, prepaid, assigned or not
borrowed (assumed to be the Eurodollar Rate applicable thereto) for the period
from the date of such payment, prepayment, assignment or failure to borrow to
the last day of the Interest Period for such Loan (or, in the case of a failure
to borrow, the Interest Period for such Eurodollar Loan which would have
commenced on the date of such failure) over (ii) the amount of interest (as
reasonably determined by such Bank) that would be realized by such Bank in
reemploying the funds so paid, prepaid, assigned or not borrowed for such period
or Interest Period, as the case may be. A certificate of any Bank setting forth
any amount or amounts which such Bank is entitled to receive pursuant to this
Section, and the manner in which such Bank has determined the same, shall be
delivered to the Borrower and shall be conclusive absent manifest error.
Section 2.15 Pro Rata Treatment. Except as required under Section
2.13, each Borrowing, each payment or prepayment of principal of any Borrowing
or LC Disbursement, each payment of interest on the Loans or LC Disbursements,
each payment of the Fees, and each reduction of the Commitments shall be
allocated among the Banks in accordance with their respective Pro Rata Shares.
Each Bank agrees that in computing such Bank's portion of any Borrowing to be
made hereunder, the Administrative Agent may, in its discretion, round each
Bank's Pro Rata Share of such Borrowing to the next higher or lower whole dollar
amount.
Section 2.16 Sharing of Setoffs. Each Bank agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Bank under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of its Loans or participations in
LC Disbursements as a result of which the unpaid principal portion of its Loans
or participations in LC Disbursements shall be proportionately less than the
unpaid principal portion of the Loans or participations in LC Disbursements of
any other Bank, it shall be deemed simultaneously to have purchased from such
other Bank at face value, and shall promptly pay to such other Bank the purchase
price for, a participation in the Loans or participations in LC Disbursements,
as applicable, of such other Bank ("Sharing Participations"), so that (i) the
aggregate unpaid principal amount of the Loans, participations in LC
Disbursements and Sharing Participations held by each Bank shall be in the same
proportion to the aggregate unpaid principal amount of all Loans and LC
Disbursements then outstanding as (ii) the principal amount of its Loans,
participations in LC Disbursements and Sharing Participations prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all Loans and LC Disbursements outstanding prior to such
exercise of banker's lien, setoff or counter claim or other event; provided,
however, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section and the payment giving rise thereto shall thereafter be
recovered, such purchase or purchases or adjustments shall be rescinded to the
extent of such recovery and the purchase price or prices or adjustment restored
without interest. The Borrower expressly consents to the foregoing arrangements
and agrees that any Bank holding a participation in a Loan or in a participation
in an LC Disbursement deemed to have been so purchased may
25
exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower to such Bank by reason
thereof as fully as if such Bank had made a Loan directly to the Borrower or had
acquired a participation in an LC Disbursement directly from the applicable
Issuing Bank, as the case may be, in the amount of such participation.
Section 2.17 Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or reimbursements of LC
Disbursements or any Fees or other amounts) hereunder and under any other Loan
Document not later than 12:00 noon, New York City time, on the date when due in
dollars to the Administrative Agent at its offices at One Wall Street, New York,
New York, in immediately available funds.
(b) Whenever any payment (including principal of or interest on any
Borrowing or reimbursements of LC Disbursements or any Fees or other amounts)
hereunder or under any other Loan Document shall become due, or otherwise would
occur, on a day that is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of interest or Fees, if applicable.
Section 2.18 Taxes. (a) Any and all payments by the Borrower
hereunder and under any other Loan Document shall be made, in accordance with
Section 2.17, free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding taxes imposed on the net income of
the Administrative Agent, any Bank or any Issuing Bank (or any transferee or
assignee thereof, including a participation holder (any such entity being called
a "Transferee")) and franchise taxes imposed on the Administrative Agent, any
Bank or any Issuing Bank (or Transferee) by the United States or any
jurisdiction under the laws of which the Administrative Agent or any such Bank
or Issuing Bank (or such Transferee) or the applicable lending office, is
organized or any political subdivision thereof (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable under any Loan Document
to the Banks or the Issuing Banks (or any Transferee) or the Administrative
Agent, (i) the sum payable shall be increased by the amount necessary so that
after making all required deductions of Taxes (including deductions applicable
to additional sums payable under this Section 2.18) such Bank or Issuing Bank
(or such Transferee) or the Administrative Agent (as the case may be) shall
receive an amount equal to the sum it would have received had no such deductions
of Taxes been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxing authority or
other Governmental Authority in accordance with applicable law; provided,
however, that no Transferee of any Bank shall be entitled to receive any greater
payment under this paragraph (a) than such Bank would have been entitled to
receive with respect to the rights assigned, participated or other wise
transferred except to the extent that such greater payment arises from
circumstances not in existence at the time such assignment, participation or
transfer shall have been made.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise
26
from any payment made under any Loan Document or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any other Loan
Document (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Bank (or Transferee), Issuing
Bank (or Transferee) and the Administrative Agent for the full amount of any
Taxes and Other Taxes paid by such Bank (or such Transferee), Issuing Bank (or
such Transferee) or the Administrative Agent, as the case may be, and any
liability (including penalties, interest and reasonable expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted by the relevant taxing authority or other
Governmental Authority. Such indemnification shall be made within 30 days after
the date any Bank or Issuing Bank (or Transferee) or the Administrative Agent,
as the case may be, makes written demand therefor. If a Bank or Issuing Bank (or
Transferee) or the Administrative Agent shall become aware that it is entitled
to receive a refund in respect of Taxes or Other Taxes as to which it has been
indemnified by the Borrower pursuant to this Section 2.18, it shall promptly
notify the Borrower of the availability of such refund and shall, within 30 days
after receipt of a request by the Borrower, apply for such refund at the
Borrower's expense.
(d) If any Bank or Issuing Bank (or Transferee) or the
Administrative Agent receives a refund in respect of any Taxes or Other Taxes as
to which it has been indemnified by the Borrower pursuant to this Section 2.18,
it shall promptly notify the Borrower of such refund and shall repay such refund
to the Borrower (to the extent of amounts that have been paid by the Borrower
under this Section 2.18 with respect to such refund) within 30 days (or promptly
upon receipt, if the Borrower has requested application for such refund pursuant
hereto), net of all reasonable out of pocket expenses of such Bank or Issuing
Bank (or Transferee) and without interest (other than interest included in such
refund); provided that the Borrower, upon the request of such Bank or Issuing
Bank (or such Transferee) or the Administrative Agent, agrees to return such
refund (plus penalties, interest or other charges) to such Bank or Issuing Bank
(or such Transferee) or the Administrative Agent in the event such Bank or
Issuing Bank (or such Transferee) or the Administrative Agent is required to
repay such refund. Nothing contained in this paragraph (d) shall require any
Bank or Issuing Bank (or Transferee) or the Administrative Agent to make
available any of its tax returns (or any other information relating to its taxes
which it deems to be confidential); provided that Borrower, at its expense,
shall have the right to receive an opinion from a firm of independent public
accountants of recognized national standing acceptable to the Borrower that the
amount due hereunder is correctly calculated.
(e) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by the Borrower in respect of any payment to any Bank or Issuing
Bank (or Transferee) or the Administrative Agent, the Borrower will furnish to
the Administrative Agent, at its address referred to in Section 10.01, the
original or a certified copy of a receipt received by the Borrower evidencing
payment thereof.
(f) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.18
shall survive the payment in full of the principal of and interest on all Loans
made hereunder.
27
(g) On or prior to the execution of this Agreement and on or before
the transfer to a Transferee, the Administrative Agent shall notify the Borrower
of each Bank's or Issuing Bank's (or Transferee's) address. On or prior to the
Banks' or the Issuing Banks' (or Transferee's) first Interest Payment Date, and
from time to time as required by law, each Bank or Issuing Bank (or Transferee)
that is not a United States Person within the meaning of Section 7701(a)(30) of
the Code (a "Non-U.S. Person") shall, if legally able to do so, deliver to the
Borrower and the Administrative Agent (i) one duly completed and executed copy
of United States Internal Revenue Service Form W-8BEN or W-8ECI, (ii) if
claiming exemption from United States Federal withholding tax pursuant to
Sections 871(h) or 881(c) of the Code, one duly completed and executed copy of a
United States Internal Revenue Service Form W-8BEN and a certificate
representing that such Non-U.S. Person is not a bank for purposes of Section
881(c) of the Code, is not a 10 percent shareholder (within the meaning of
Section 871(h)(3)(b) of the Code) of the Borrower and is not a controlled
foreign corporation related to the Borrower (within the meaning of Section
864(d)(4) of the Code) or (iii) any successor applicable form of any thereof,
establishing in each case that such Bank or Issuing Bank (or Transferee) is
entitled to receive payments under the Loan Documents payable to it without
deduction or withholding of any United States Federal income taxes, or subject
to a reduced rate thereof. Unless the Borrower and the Administrative Agent have
received forms or other documents satisfactory to them indicating that such
payments under the Loan Documents are not subject to United States Federal
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, the Borrower shall withhold taxes from such payments at the
applicable statutory rate.
(h) The Borrower shall not be required to pay any additional amounts
to any Bank or Issuing Bank (or Transferee) in respect of United States Federal
withholding tax pursuant to paragraph (a) above if the obligation to pay such
additional amounts would not have arisen but for a failure by such Bank or
Issuing Bank (or Transferee) to comply with the provisions of paragraph (g)
above; provided, however, that the Borrower shall be required to pay those
amounts to any Bank or Issuing Bank (or Transferee) that it was required to pay
hereunder prior to the failure of such Bank or Issuing Bank (or Transferee) to
comply with the provisions of such paragraph (g).
Section 2.19 Termination or Assignment of Commitments Under Certain
Circumstances. (a) Any Bank or Issuing Bank (or Transferee) claiming any
additional amounts payable pursuant to Section 2.12 or Section 2.18 or
exercising its rights under Section 2.13 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document requested by the Borrower or to change the jurisdiction of its
applicable lending office if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which may
thereafter accrue or avoid the circumstances giving rise to such exercise and
would not, in the sole determination of such Bank or Issuing Bank, be otherwise
disadvantageous to such Bank or Issuing Bank (or Transferee).
(b) In the event that any Bank shall have delivered a notice or
certificate pursuant to Section 2.13, or the Borrower shall be required to make
additional payments under Section 2.12 or 2.18 to any Bank or Issuing Bank (or
Transferee) or to the Administrative Agent with respect to any Bank or Issuing
Bank (or Transferee), the Borrower shall have the right, at its own expense,
upon notice to such Bank or Issuing Bank (or Transferee) and the Administrative
Agent (and, if a Commitment is being terminated or assigned, the Issuing Banks),
(a) to
28
terminate the Commitment of such Bank or Issuing Bank (or Transferee) or (b) to
require such Bank or Issuing Bank (or Transferee) to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04) all its interests, rights and obligations under the Loan
Documents to another financial institution which shall assume such obligations;
provided that (i) no such termination or assignment shall conflict with any law,
rule or regulation or order of any Governmental Authority and (ii) the Borrower
or the assignee, as the case may be, shall pay to the affected Bank or Issuing
Bank (or Transferee) in immediately available funds on the date of such
termination or assignment the principal of and interest accrued to the date of
payment on the Loans made by it hereunder and all other amounts accrued for its
account or owed to it under the Loan Documents and, in the case of a termination
or assignment by an Issuing Bank, shall cause all Letters of Credit issued by
such Issuing Bank to be surrendered for cancellation on or prior to the date of
such termination or assignment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Banks and Issuing
Banks that:
Section 3.01 Organization; Powers. Each of the Borrower and the
Significant Subsidiaries (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted, (c) is
qualified to do business in every jurisdiction where such qualification is
required, except where the failure so to qualify would not result in a Material
Adverse Effect, and (d) in the case of the Borrower, has the corporate power and
authority to execute, deliver and perform its obligations under each of the Loan
Documents and each other agreement or instrument contemplated thereby to which
it is or will be a party and to borrow hereunder.
Section 3.02 Authorization. The execution, delivery and performance
by the Borrower of each of the Loan Documents and the Borrowings and procurement
of Letters of Credit hereunder (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 Agreement or any other Loan Document or
materially impair the rights of or benefits available to the Banks or the
Issuing Banks under the 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 Agreement or any other Loan Document, or materially
impair the rights of or benefits available to the Banks or the Issuing Banks
under the Loan Documents, 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
Agreement or any other Loan Document or materially impair the rights of or
benefits available to the Banks or the Issuing Banks under the Loan Documents,
(ii) be in conflict with, result in a breach of or constitute (alone or with
notice or lapse of time or
29
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 Agreement or any other Loan Document or materially impair
the rights of or benefits available to the Banks or the Issuing Banks under the
Loan Documents 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.
Section 3.03 Enforceability. This Agreement has been duly executed
and delivered by the Borrower and constitutes, and each other Loan Document when
executed and delivered by the Borrower will constitute, a legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms.
Section 3.04 Governmental Approvals. 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.
Section 3.05 Financial Statements. The Borrower has heretofore
furnished to the Banks and the Issuing Banks its (i) consolidated balance sheets
and statements of income and statements of cash flow as of and for the fiscal
year ended December 31, 2003, audited by and accompanied by the opinion of
Deloitte & Touche LLP, independent public accountants, and (ii) unaudited
consolidated balance sheets and statements of income and statements of cash flow
as of and for the fiscal quarter ended September 30, 2004, certified by one of
its Financial Officers. All such financial statements present fairly the
financial condition and results of operations of the Borrower and its
consolidated subsidiaries as of such dates and for such periods. Such balance
sheets and the notes thereto, together with the Borrower's Annual Report on Form
10-K for the fiscal year ended December 31, 2003, reflect all liabilities,
direct or contingent, of the Borrower and its consolidated Subsidiaries as of
the dates thereof which are material on a consolidated basis. Such financial
statements were prepared in accordance with GAAP applied (except as noted
therein) on a consistent basis.
Section 3.06 No Material Adverse Change. Except as disclosed in the
Borrower's Annual Report on Form 10-K for the fiscal year ended December 31,
2003 and in any document filed after December 31, 2003, but prior to the date of
this Agreement pursuant to Sections 13(a), 14 or 15(d) of the Securities
Exchange Act of 1934, there has been no change in the business, assets,
operations or financial condition of the Borrower and the Subsidiaries, taken as
a whole, since December 31, 2003, which could reasonably be expected to have a
material adverse effect on the creditworthiness of the Borrower.
Section 3.07 Litigation; Compliance with Laws. (a) Except as set
forth in the Annual Report of the Borrower on Form 10-K for the year ended
December 31, 2003 or in any document filed after December 31, 2003, but prior to
the date of this Agreement pursuant to Sections 13(a), 14 or 15(d) of the
Securities Exchange Act of 1934, there are not any actions, suits or proceedings
at law or in equity or by or before any Governmental Authority now pending or,
to the knowledge of the Borrower, threatened against or affecting the Borrower
or any Subsidiary or any business, property or rights of any such person (i)
which involve any Loan
30
Document or the Transactions or (ii) which could reasonably be anticipated,
individually or in the aggregate, to result in a Material Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in violation
of any law, rule or regulation, or in default with respect to any judgment,
writ, injunction or decree of any Governmental Authority, where such violation
or default would be reasonably likely to result in a Material Adverse Effect.
Section 3.08 Federal Reserve Regulations. (a) Neither the Borrower
nor any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
(b) No part of the proceeds of any Loan or Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, (i) to purchase or carry Margin Stock or to extend credit to others
for the purpose of purchasing or carrying Margin Stock or to refund indebtedness
originally incurred for such purpose, or (ii) for any purpose which entails a
violation of, or which is inconsistent with, the provisions of the Regulations
of the Board, including Regulation U or X.
Section 3.09 Investment Company Act; Public Utility Holding Company
Act. The Borrower is not (a) an "investment company" as defined in, or subject
to regulation under, the Investment Company Act of 1940 or (b) subject to
regulation as a "holding company" under the Public Utility Holding Company Act
of 1935.
Section 3.10 No Material Misstatements. No information, report,
financial statement, exhibit or schedule furnished by or on behalf of the
Borrower to the Administrative Agent, any Issuing Bank or any Bank in connection
with the negotiation of any Loan Document or included therein or delivered
pursuant thereto contained, contains or will contain any material misstatement
of fact or, when considered together with all reports theretofore filed with the
Securities and Exchange Commission, omitted, omits or will omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were, are or will be made, not misleading.
Section 3.11 Employee Benefit Plans. Each of the Borrower and its
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the regulations and published interpretations
thereunder. No Reportable Event has occurred as to which the Borrower or any
ERISA Affiliate was required to file a report with the PBGC, and the present
value of all benefit liabilities under each Plan (based on those assumptions
used to fund such Plan) did not, as of the last annual valuation date applicable
thereto, exceed by more than $25,000,000 the value of the assets of such Plan.
Section 3.12 Environmental and Safety Matters. Each of the Borrower
and each Subsidiary has complied with all Federal, state, local and other
statutes, ordinances, orders, judgments, rulings and regulations relating to
environmental pollution or to environmental or nuclear regulation or control or
to employee health or safety, except where noncompliance would not be reasonably
likely to result in a Material Adverse Effect. Neither the Borrower nor any
Subsidiary has received notice of any failure so to comply, except where
noncompliance would
31
not be reasonably likely to result in a Material Adverse Effect. The Borrower's
and the Subsidiaries' plants do not manage any hazardous wastes, hazardous
substances, hazardous materials, toxic substances, toxic pollutants or
substances similarly denominated, as those terms or similar terms are used in
the Resource Conservation and Recovery Act, the Comprehensive Environmental
Response Compensation and Liability Act, the Hazardous Materials Transportation
Act, the Toxic Substance Control Act, the Clean Air Act, the Clean Water Act or
any other applicable law relating to environmental pollution or employee health
and safety, or any nuclear fuel or other radioactive materials, in all cases in
violation of any law or any regulations promulgated pursuant thereto, where such
violation would be reasonably likely to result in a Material Adverse Effect. The
Borrower is aware of no events, conditions or circumstances involving
environmental pollution or contamination or employee health or safety that could
reasonably be expected to result in a Material Adverse Effect. The
representations and warranties set forth in this Section 3.12 are, however,
subject to any matters, circumstances or events set forth in the Borrower's
Annual Report on Form 10-K for the fiscal year ended December 31, 2003 and in
any document filed after December 31, 2003, but prior to the date of this
Agreement pursuant to Sections 13(a), 14 or 15(d) of the Securities Exchange Act
of 1934; provided, however, that the inclusion of such matters, circumstances or
events as exceptions (or any other exceptions contained in the representations
and warranties which refer to the Borrower's Annual Report on Form 10-K for the
fiscal year ended December 31, 2003 or in any document filed after December 31,
2003, but prior to the date of this Agreement pursuant to Sections 13(a), 14 or
15(d) of the Securities Exchange Act of 1934) shall not be construed to mean
that the Borrower has concluded that any such matter, circumstance or effect is
likely to result in a Material Adverse Effect.
Section 3.13 Significant Subsidiaries. Schedule 3.13 sets forth as
of the date hereof a list of all Significant Subsidiaries of the Borrower and
the percentage ownership interest of the Borrower therein.
ARTICLE IV
CONDITIONS TO BORROWINGS AND LETTERS OF CREDIT
The obligations of the Banks to make Loans and of the Issuing Banks to
issue, amend, renew or extend Letters of Credit, are subject to the satisfaction
of the following conditions:
Section 4.01 All Borrowings and Letters of Credit. On the date of
each Borrowing (including each Borrowing in which Loans are refinanced with new
Loans as contemplated by Section 2.02(e)) or issuance, amendment, renewal or
extension of a Letter of Credit:
(a) The Administrative Agent shall have received (i) in the case of
a Borrowing, a notice of such Borrowing as required by Section 2.03 and
(ii) in the case of an issuance, amendment, renewal or extension of a
Letter of Credit, a notice requesting the same and any letter of
application as required by Section 2.05.
(b) The representations and warranties set forth in Article III
hereof (excluding, in the case of a refinancing of Loans or the issuance,
amendment, renewal or extension of
32
a Letter of Credit or the refinancing of an LC Disbursement that does not
increase the Revolving Credit Exposure of any Bank, the representations
set forth in Sections 3.06 and 3.07) shall be true and correct in all
material respects on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit with
the same effect as though made on and as of such date, except to the
extent such representations and warranties expressly relate to an earlier
date.
(c) The Borrower shall be in compliance with all the terms and
provisions set forth herein and in each other Loan Document on its part to
be observed or performed, and at the time of and immediately after such
Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit no Event of Default or Default shall have occurred and be
continuing.
Each Borrowing and issuance, amendment, renewal or extension of such Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (b) and
(c) of this Section 4.01.
Section 4.02 First Borrowing or Letter of Credit. On the date of
this Agreement:
(a) The Administrative Agent shall have received each of the
following, in form and substance satisfactory to it:
(i) Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇▇ LLP, counsel to
the Borrower, dated the date of this Agreement and addressed to the
Administrative Agent, the Banks and the Issuing Banks, with respect to
such matters relating to the Borrower and the Loan Documents as the
Administrative Agent, the Issuing Banks 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 and set
forth on Schedule 4.02(a)(ii) 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 Issuing Banks, could
adversely affect their rights or interests under the Loan Documents.
(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 Agreement 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 Agreement 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
execution, delivery and performance of the Loan Documents and borrowings
and procurement of letters of credit
33
hereunder, 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 Loan
Document or any other document delivered in connection therewith on behalf
of the Borrower
(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 Agreement and
signed by a Financial Officer of the Borrower, confirming compliance with
the conditions precedent set forth in paragraphs (b) and (c) of Section
4.01.
(vii) Evidence satisfactory to the Administrative Agent that
this Agreement, the Supplemental Indenture, the Bond Delivery Agreement,
the First Mortgage Bond and any Notes requested by the Banks for issuance
on the date of this Agreement, have been executed and delivered by all
parties thereto.
(viii) A copy of the First Mortgage, certified by the
Secretary or Assistant Secretary of the Borrower.
(ix) A copy of title insurance policy No. ▇▇▇ ▇▇▇▇▇-▇▇▇ issued
by First American Title Insurance Company, together with copies of all
endorsements thereto, naming the trustee under the First Mortgage as the
insured, insuring the Borrower's title to the real property subject to
Lien of the First Mortgage, and the validity and first priority of the
Lien of the First Mortgage (subject to Liens permitted to exist by the
terms of the First Mortgage), in an amount not less than the principal
amount of the First Mortgage Bond.
(x) Such other documents as the Administrative Agent, the
Banks, the Issuing Banks or their respective legal counsel may reasonably
request.
(b) All fees payable by the Borrower to the Administrative Agent,
the Issuing Banks, the Banks or any of their Affiliates or any on or prior
to the date of this Agreement with respect to this Agreement, and all
amounts payable by the Borrower pursuant to Section 10.05 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) The Lenders shall have received a copy of each document filed
after December 31, 2003, but prior to the date of this Agreement pursuant
to Sections 13(a), 14 or 15(d) of the Securities Exchange Act of 1934.
(d) The Administrative Agent shall be satisfied that on the Closing
Date, all commitments to make loans or issue letters of credit under the
Existing Credit Agreement
34
will be terminated, and all amounts accrued or owing under the Existing
Credit Agreement will be paid in full.
(e) All legal matters incident to the Loan Documents and the
transactions contemplated thereby shall be reasonably satisfactory to the
Administrative Agent, the Banks, the Issuing Banks and their respective
legal counsel.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Bank and Issuing Bank that so
long as any Commitment shall remain in effect or the principal of or interest on
any Loan or LC Disbursement, any Fees or any other amounts payable under any
Loan Document shall be unpaid or any Letter of Credit remains outstanding:
Section 5.01 Existence; Businesses and Properties. (a) The Borrower
shall, and shall cause each Significant Subsidiary to, do or cause to be done
all things necessary to preserve, renew and keep in full force and effect its
legal existence, except as otherwise expressly permitted under Section 6.03.
(b) The Borrower shall, and shall cause each Significant Subsidiary
to, (i) do or cause to be done all things necessary to obtain, preserve, renew,
extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
utilized in the conduct of its business, except where the failure so to obtain,
preserve, renew, extend or maintain any of the foregoing would not result in a
Material Adverse Effect; maintain and operate such business in substantially the
manner in which it is presently conducted and operated, except as otherwise
expressly permitted under this Agreement; (ii) comply in all material respects
with all applicable laws, rules, regulations and orders of any Governmental
Authority, whether now in effect or hereafter enacted if failure to comply with
such requirements would result in a Material Adverse Effect; and (iii) at all
times maintain and preserve all property material to the conduct of its business
and keep such property in good repair, working order and condition and from time
to time make, or cause to be made, all needful and proper repairs, renewals,
additions, improvements and replacements thereto necessary in order that the
business carried on in connection therewith may be properly conducted at all
times; provided, however, that the Borrower or any Significant Subsidiary may
cause the discontinuance of the operation or a reduction in the capacity of any
of its facilities, or any element or unit thereof including, without limitation,
real and personal properties, facilities, machinery and equipment, (i) if, in
the judgment of the Borrower or such Significant Subsidiary, it is no longer
advisable to operate the same, or to operate the same at its former capacity,
and such discontinuance or reduction would not result in a Material Adverse
Effect, or (ii) if the Borrower or a Significant Subsidiary intends to sell and
dispose of its interest in the same in accordance with the terms of this
Agreement and within a reasonable time shall endeavor to effectuate the same.
Section 5.02 Insurance. (a) The Borrower shall, and shall cause each
Significant Subsidiary to, maintain insurance, to such extent and against such
risks, as is customary with
35
companies in the same or similar businesses and owning similar properties in the
same general area in which it operates and (b) maintain such other insurance as
may be required by law. All insurance required by this Section 5.02 shall be
maintained with financially sound and reputable insurers or through
self-insurance; provided, however, that the portion of such insurance
constituting self-insurance shall be comparable to that usually maintained by
companies engaged in the same or similar businesses and owning similar
properties in the same general area in which it operates and the reserves
maintained with respect to such self-insured amounts are deemed adequate by its
officer or officers responsible for insurance matters.
Section 5.03 Taxes and Obligations. The Borrower shall, and shall
cause each Significant Subsidiary to, pay and discharge promptly when due all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise which, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided, however, that such payment
and discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the Borrower shall, to
the extent required by GAAP, have set aside on its books adequate reserves with
respect thereto.
Section 5.04 Financial Statements, Reports, etc. The Borrower shall
furnish to the Administrative Agent, each Bank and each Issuing Bank:
(a) within 105 days after the end of each fiscal year, consolidated
and consolidating balance sheets and related statements of income and
statements of cash flow, showing the financial condition of (i) Avista
Utilities and (ii) the Borrower and its consolidated Subsidiaries, in each
case as of the close of such fiscal year, and the results of each of their
operations during such year, all (A) in the case of Avista Utilities,
certified by one of the Borrower's Financial Officers as fairly presenting
the financial condition and results of operations of Avista Utilities in
accordance with GAAP consistently applied and (B) in the case of the
Borrower and its consolidated subsidiaries, audited by Deloitte & Touche
or other independent public accountants of recognized national standing
acceptable to the Required Banks and accompanied by an opinion of such
accountants (which shall not be qualified in any material respect) to the
effect that such consolidated financial statements fairly present the
financial condition and results of operations of the Borrower on a
consolidated basis (except as noted therein) in accordance with GAAP
consistently applied;
(b) within 50 days after the end of each of the first three fiscal
quarters of each fiscal year, consolidated and, to the extent otherwise
available, consolidating balance sheets and related statements of income
and statements of cash flow, showing the financial condition of (i) Avista
Utilities and (ii) the Borrower and its consolidated subsidiaries, in each
case as of the close of such fiscal quarter, and the results of each of
their operations during such fiscal quarter and the then elapsed portion
of the fiscal year, all certified by one of its Financial Officers as
fairly presenting the financial condition and results of operations of
Avista Utilities or the Borrower on a consolidated basis, as
36
applicable, in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a)
or (b) above, (i) a certificate of the relevant accounting firm opining on
or certifying such statements or Financial Officer (which certificate,
when furnished by an accounting firm, may be limited to accounting matters
and disclaim responsibility for legal interpretations) certifying that to
the knowledge of the accounting firm or the Financial Officer, as the case
may be, no Event of Default or Default has occurred or, if such an Event
of Default or Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be taken with
respect thereto, and (ii) a certificate of a Financial Officer setting
forth in reasonable detail such calculations as are required to establish
whether the Borrower was in compliance with Sections 6.05 and 6.06 on the
date of such financial statements;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
it with the Securities and Exchange Commission, or any governmental
authority succeeding to any of or all the functions of said Commission, or
with any national securities exchange, or distributed to its share
holders, as the case may be; and
(e) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of the Borrower
or any Significant Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent, any Bank or any Issuing Bank may
reasonably request.
Section 5.05 Litigation and Other Notices. The Borrower shall
furnish to the Administrative Agent and each Bank and Issuing Bank prompt notice
of the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any written threat or notice
of intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against the Borrower or any Subsidiary thereof which could
reasonably be anticipated to result in a Material Adverse Effect; and
(c) any development that has resulted in, or could reasonably be
anticipated to result in, a Material Adverse Effect.
Section 5.06 ERISA. (a) The Borrower shall, and shall cause each
Significant Subsidiary to, comply in all material respects with the applicable
provisions of ERISA and (b) the Borrower shall furnish to the Administrative
Agent and each Bank and Issuing Bank (i) as soon as possible, and in any event
within 30 days after any Responsible Officer of the Borrower or any ERISA
Affiliate either knows or has reason to know that any Reportable Event has
occurred that alone or together with any other Reportable Event could reasonably
be expected to result in liability of the Borrower to the PBGC in an aggregate
amount exceeding $25,000,000, a
37
statement of a Financial Officer setting forth details as to such Reportable
Event and the action proposed to be taken with respect thereto, together with a
copy of the notice, if any, of such Reportable Event given to the PBGC, (ii)
promptly after receipt thereof, a copy of any notice the Borrower or any ERISA
Affiliate may receive from the PBGC relating to the intention of the PBGC to
terminate any Plan or Plans (other than a Plan maintained by an ERISA Affiliate
which is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Code) or to appoint a trustee to administer any Plan or Plans
and (iii) within 10 days after the due date for filing with the PBGC pursuant to
Section 412(n) of the Code of a notice of failure to make a required installment
or other payment with respect to a Plan, a statement of a Financial Officer
setting forth details as to such failure and the action proposed to be taken
with respect thereto, together with a copy of such notice given to the PBGC.
Section 5.07 Maintaining Records; Access to Properties and
Inspections. The Borrower shall, and shall cause each Significant Subsidiary to,
(a) maintain all financial records in accordance with GAAP and (b) permit any
representatives designated by the Administrative Agent, any Bank or any Issuing
Bank to visit and inspect its financial records and properties at reasonable
times and as often as requested and to make extracts from and copies of such
financial records, and permit any representatives designated by the
Administrative Agent, any Bank or any Issuing Bank to discuss its affairs,
finances and condition with its chief financial officer, or other person
designated by the chief financial officer, and independent accountants therefor.
Section 5.08 Use of Proceeds and Letters of Credit. The Borrower
shall use the proceeds of the Loans and the Letters of Credit only for the
purposes set forth in the preamble to this Agreement.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees with each Bank and Issuing Bank that so
long as any Commitment shall remain in effect or the principal of or interest on
any Loan or LC Disbursement, any Fees or any other amounts payable under any
Loan Document shall be unpaid or any Letter of Credit remains outstanding:
Section 6.01 Liens. The Borrower shall not create, incur, assume or
permit to exist any Lien on any property or assets (including stock or other
securities of any person, including any Subsidiary) now owned or hereafter
acquired by it or on any income or revenues or rights in respect of any thereof,
except:
(a) Liens on property or assets of the Borrower created by the
documents, instruments or agreements existing on the date hereof and which
are listed as exhibits to the Borrower's Annual Report on Form 10-K for
the fiscal year ended December 31, 2003, to the extent that such Liens
secure only obligations arising under such existing documents, agreements
or instruments and the amount of Indebtedness secured thereby does not
exceed the amount thereof as of the date hereof as set forth on Schedule
6.01;
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(b) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower; provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition and
(ii) such Lien does not apply to any other property or assets of the
Borrower;
(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.
(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);
(e) Liens for taxes, assessments or governmental charges not yet due
or which are being contested in compliance with Section 5.03;
(f) carriers', warehousemen's, mechanic's, materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
and securing obligations that are not due or which are being contested in
compliance with Section 5.03;
(g) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other
social security laws or regulations;
(h) Liens incurred or created in connection with or to secure the
performance of bids, tenders, trade contracts (other than for
Indebtedness), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of alike nature incurred in the
ordinary course of business;
(i) zoning restrictions, easements, rights-of-way, restrictions on
use of real property and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial
in amount and do not materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business of
the Borrower or any of its Subsidiaries;
(j) Liens (i) which secure obligations not assumed by the Borrower,
(ii) on account of which the Borrower has not and does not expect to pay
interest directly or indirectly and (iii) which exist upon real estate or
rights in or relating to real estate in respect of which the Borrower has
a right-of-way or other easement for purposes of substations or
transmission or distribution facilities;
(k) rights reserved to or vested in any federal, state or local
governmental body or agency by the terms of any right, power, franchise,
grant, license, contract or permit,
39
or by any provision of law, to recapture or to purchase, or designate a
purchase of or order the sale of, any property of the Borrower or to
terminate any such right, power, franchise, grant, license, contract or
permit before the expiration thereof;
(l) Liens of judgments covered by insurance, or upon appeal and
covered by bond, or to the extent not so covered not exceeding at one time
$40,000,000 in aggregate amount;
(m) any Liens, moneys sufficient for the discharge of which shall
have been deposited in trust with the trustee or mortgagee under the
instrument evidencing such Lien, with irrevocable authority of such
trustee or mortgagee to apply such moneys to the discharge of such Lien to
the extent required for such purpose;
(n) rights reserved to or vested in any federal, state or local
governmental body or agency or other public authority to control or
regulate the business or property of the Borrower;
(o) any obligations or duties affecting the property of the Borrower
to any federal, state or local governmental body or agency or other public
authority with respect to any authorization, permit, consent or license of
such body, agency or authority, given in connection with the purchase,
construction, equipping, testing and operation of the Borrower's utility
property;
(p) with respect to any property which the Borrower may hereafter
acquire, any exceptions or reservations therefrom existing at the time of
such acquisition or any terms, conditions, agreements, covenants,
exceptions and reservations expressed or provided in the deeds of other
instruments, respectively, under and by virtue of which the Borrower shall
hereafter acquire the same, none of which materially impairs the use of
such property for the purposes for which it is acquired by the Borrower;
(q) leases and subleases entered into in the ordinary course of
business;
(r) banker's Liens and other Liens in the nature of a right of
setoff;
(s) renewals, replacements, amendments, modifications, supplements,
refinancings or extensions of Liens set forth in clauses (a)-(d) above to
the extent that the principal amount of Indebtedness secured by such Lien
immediately prior thereto is not increased and such Lien is not extended
to other property;
(t) security deposits or amounts paid into trust funds for the
reclamation of mining properties;
(u) restrictions on transfer or use of properties and assets, first
rights of refusal, and rights to acquire properties and assets granted to
others;
(v) non-consensual equitable Liens on the Borrower's
tenant-in-common or other interest in joint projects;
40
(w) Liens on the Borrower's tenant-in-common or other interest in
joint projects incurred by the project sponsor without the express consent
of the Borrower to such incurrence;
(x) cash collateral contemplated under Section 2.05(i); and
(y) Liens on receivables and related properties or interests
therein.
Section 6.02 Sale-Leaseback Transactions. The Borrower shall not
enter into any Sale-Leaseback if as a result thereof the aggregate outstanding
principal amount of Attributable Debt outstanding in connection with all
Sale-Leasebacks entered into after the date hereof would exceed 5% of the total
tangible assets of Avista Utilities as of the date of the financial statements
most recently delivered under Section 5.04(a) or (b) at such time.
Section 6.03 Mergers, Consolidations and Acquisitions. The Borrower
shall not, and shall not permit any Significant Subsidiary (without the consent
of the Required Banks, not to be unreasonably withheld) to, merge with or into
or consolidate with any other person, or purchase, lease or otherwise acquire
(in one transaction or a series of transactions) all or substantially all of the
assets of any other person (whether directly by purchase, lease or other
acquisition of all or substantially all of the assets of such person or
indirectly by purchase or other acquisition of all or substantially all of the
capital stock of such other person) other than acquisitions in the ordinary
course of the Borrower's or such Significant Subsidiary's business, except that,
if at the time thereof and immediately after giving effect thereto no Event of
Default or Default shall have occurred and be continuing, (a) the Borrower or
any Significant Subsidiary may merge with or into or consolidate with the
Borrower or any Subsidiary provided that, in any transaction involving the
Borrower, the Borrower is the surviving person, (b) the Borrower or any
Significant Subsidiary may purchase, lease or otherwise acquire from any
Subsidiary all or substantially all of its assets, (c) the Borrower may merge
with or into or consolidate with any other person so long as (i) in the case
where the business of such other person, or an Affiliate of such other person,
entirely or primarily consists of an electric or gas utility business, (A) if
the Borrower is the surviving person, then, immediately after such merger or
consolidation, the Senior Debt Rating assigned to the applicable Indebtedness of
the Borrower by two nationally recognized credit rating agencies shall be equal
to or higher than Lowest Investment Grade and (B) if the Borrower is not the
surviving person, (1) the surviving person shall assume in writing the
obligations of the Borrower under this Agreement and any other Loan Documents
and (2) immediately after such merger or consolidation, the Senior Debt Rating
assigned to the applicable Indebtedness of the surviving Person by two
nationally recognized credit rating agencies shall be equal to or higher than
Second Lowest Investment Grade, and (ii) in the case where such other person's
business does not entirely or primarily consist of an electric or gas utility
business, (A) the assets of such person at the time of such consolidation or
merger do not exceed 10% of the total assets of the Borrower and its
Subsidiaries after giving effect to such merger or consolidation, computed and
consolidated in accordance with GAAP consistently applied and (B) if the
Borrower is not the surviving person, the surviving person shall assume in
writing the obligations of the Borrower under this Agreement and any other Loan
Documents, (d) the Borrower may purchase, lease or otherwise acquire all or
substantially all of the assets of any other person (including by purchase or
other acquisition of all or substantially all of the capital stock of such
person) so long as (i) the assets being purchased, leased or acquired (or the
41
assets of the person whose capital stock is being acquired) entirely or
primarily consist of electric or gas utility assets or (ii) in the case where
the assets being purchased, leased or acquired (or the assets of the person
whose capital stock is being acquired) do not entirely or primarily consist of
electric or gas utility assets, the assets being acquired (or the Borrower's
proportionate share of the assets of the person whose capital stock is being
acquired) do not exceed 10% of the total assets of the Borrower and its
Subsidiaries, after giving effect to such acquisition, computed and consolidated
in accordance with GAAP consistently applied, (e) any Significant Subsidiary may
merge with or into or consolidate with any other person so long as the assets of
such person at the time of such consolidation or merger do not exceed 10% of the
total assets of the Borrower and its Subsidiaries after giving effect to such
merger or consolidation, computed and consolidated in accordance with GAAP
consistently applied, and (f) any Significant Subsidiary may purchase, lease or
otherwise acquire all or substantially all of the assets of any other person
(including by purchase or other acquisition of all or substantially all of the
capital stock of such person) so long as the assets being acquired (or the
Significant Subsidiary's proportionate share of the assets of the person whose
capital stock is being acquired) do not exceed 10% of the total assets of the
Borrower and its Subsidiaries after giving effect to such acquisition, computed
and consolidated in accordance with GAAP consistently applied; provided,
however, that notwithstanding anything in this Section 6.03 to the contrary,
this Section 6.03 shall not be deemed to prohibit any merger, consolidation or
acquisition involving a Significant Subsidiary (and not also the Borrower) if,
after giving effect to the consummation of such transaction, such Significant
Subsidiary shall have or be deemed to have a ratio of total long-term
Indebtedness to total stockholders' equity equal to or less than 1.5 to 1.0.
Section 6.04 Disposition of Assets. The Borrower shall not, and
shall not permit any Significant Subsidiary (without the consent of the Required
Banks, not to be unreasonably withheld) to, sell, lease, transfer, assign or
otherwise dispose of any assets or any interest therein (whether now owned or
hereafter acquired), except (a) dispositions of obsolete or retired property not
used or useful in its business, (b) grants of Liens by the Borrower permitted
under Section 6.01 and grants of Liens by Significant Subsidiaries, (c)
disposition by the Borrower of its interest in the Washington Public Power
Supply System Nuclear Project No. 3 in accordance with the settlement agreement
among the Borrower, the Washington Public Power Supply System and Bonneville
Power Administration, as the same may be amended, modified or supplemented from
time to time, (d) disposition by the Borrower of all or any portion of its
transmission assets in one or more RTO Transactions, (e) disposition by the
Borrower of its interests in the Colstrip Project and related assets, (f)
disposition by Avista Energy, Inc. of its assets in the ordinary course of its
trading operations, (g) disposition of receivables and related properties or
interests therein, (h) disposition by the Borrower of its natural gas
distribution assets and operations located in the State of California, (i) other
dispositions of assets (not otherwise permitted by clauses (a)-(h) of this
Section) made in the ordinary course of business not exceeding in any fiscal
year 5% of the assets of the Borrower and its Subsidiaries as of the end of the
prior fiscal year, computed and consolidated in accordance with GAAP
consistently applied, and (i) other dispositions of assets (not otherwise
permitted by clauses (a)-(h) of this Section) not exceeding in any fiscal year
10% of the assets of the Borrower and its Subsidiaries as of the end of the
prior fiscal year, computed and consolidated in accordance with GAAP
consistently applied; provided, however, that notwithstanding anything in this
Section 6.04 to the contrary, this Section 6.04 shall not be deemed to prohibit
any disposition by a Significant Subsidiary if, after giving effect to the
consummation of such transaction, such Significant
42
Subsidiary shall have or be deemed to have a ratio of total long-term
Indebtedness to total stockholders' equity equal to or less than 1.5 to 1.0.
Section 6.05 Consolidated Total Debt to Consolidated Total
Capitalization Ratio. The Borrower shall not permit the ratio of Consolidated
Total Debt to Consolidated Total Capitalization to be, at any time, greater than
0.70 to 1.00.
Section 6.06 Avista Utilities Interest Coverage Ratio. The Borrower
shall not permit the ratio of Avista Utilities EBITDA to Avista Utilities
Interest Expense for any four-fiscal-quarter period to be less than 1.6 to 1.
Section 6.07 Public Utility Regulatory Borrowing Limits. The
Borrower shall not incur actual borrowings or commitments or issued and
outstanding debt of the Borrower in excess of the amount authorized by statute
or by orders of public utility commissions, as in effect from time to time.
Section 6.08 Avista Energy Guarantees. The Borrower shall not permit
itself to be obligated, at any time, under Guarantees of obligations of Avista
Energy, Inc. under which the Borrower's liability, in the aggregate for all such
Guarantees, might exceed $50,000,000.
Section 6.09 Investments. The Borrower shall not make any new
Investments in any Subsidiary (other than a Financing Subsidiary), except for
(a) Investments constituting Guaranties permitted under Section 6.08 and (b)
other Investments (including Guaranties not permitted under Section 6.08) in an
aggregate amount (calculated, in the case of any acquisition or Investment,
based on the amount of consideration payable, and obligations incurred, by the
Borrower for such acquisition or Investment) not exceeding $75,000,000, in any
fiscal year of the Borrower, or $200,000,000 in the aggregate, during the period
from the date of execution and delivery of this Agreement to the Expiration
Date, in each case net of any distributions or other amounts received by the
Borrower during such period on Investments in such Subsidiaries.
ARTICLE VII
EVENTS OF DEFAULT
In case of the happening (and during the continuance) of any of the
following events ("Events of Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the Borrowings or the issuance of any
Letter of Credit, or any representation or warranty contained in any
certificate or other document furnished in connection with or pursuant to
any Loan Document, shall prove to have been false or misleading in any
material respect when so made or deemed made;
(b) default shall be made in the payment of any principal of any
Loan or LC Disbursement when and as the same shall become due and payable,
whether at the scheduled maturity date thereof or at a date fixed for
prepayment thereof or by acceleration thereof or otherwise;
43
(c) default shall be made in the payment of any interest on any Loan
or LC Disbursement or any Fee or any other amount (other than an amount
referred to in (b) above) due under any Loan Document, when and as the
same shall become due and payable, and such default shall continue
unremedied for a period of five Business Days;
(d) default shall be made in the due observance or performance by
the Borrower of any covenant, condition or agreement contained in Section
5.01(a), 5.05, 5.07(b) or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by
the Borrower of any covenant, condition or agreement contained in any Loan
Document (other than those specified in (b), (c) or (d) above) and such
default shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent, or any Bank or Issuing Bank to the
Borrower;
(f) the Borrower or any Significant Subsidiary shall (i) fail to pay
any principal or interest, regardless of amount, due in respect of any
Indebtedness when the aggregate unpaid principal amount is in excess of
$40,000,000, when and as the same shall become due and payable (after
expiration of any applicable grace period), or (ii) fail to observe or
perform any other term, covenant, condition or agreement (after expiration
of any applicable grace period) contained in any agreement or instrument
evidencing or governing any such Indebtedness if the effect of any failure
referred to in this clause (ii) is to cause, or to permit the holder or
holders of such Indebtedness or a trustee on its or their behalf (with or
without the giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Borrower or any Significant Subsidiary, or of a
substantial part of the property or assets of the Borrower or a
Significant Subsidiary, under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal or state
bankruptcy, insolvency, receivership or similar law, (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Significant Subsidiary or for a
substantial part of the property or assets of the Borrower or a
Significant Subsidiary or (iii) the winding-up or liquidation of the
Borrower or any Significant Subsidiary; and such proceeding or petition
shall continue undismissed, or an order or decree approving or ordering
any of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 or more days;
(h) the Borrower or any Significant Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other Federal or state bankruptcy, insolvency, receivership or similar
law, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or the filing of any petition
described in (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Significant Subsidiary or for a
substantial part of the property or assets of the Borrower or any
44
Significant Subsidiary, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become
unable, admit in writing its inability or fail generally to pay its debts
as they become due or (vii) take any action for the purpose of effecting
any of the foregoing;
(i) a final judgment or judgments shall be rendered against the
Borrower, any Significant Subsidiary or any combination thereof for the
payment of money with respect to which an aggregate amount in excess of
$40,000,000 is not covered by insurance and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of the Borrower or any
Significant Subsidiary to enforce any such judgment;
(j) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section
412(n)(1) of the Code), shall have occurred with respect to any Plan or
Plans that reasonably could be expected to result in liability of the
Borrower to the PBGC or to a Plan in an aggregate amount exceeding
$25,000,000 and, within 30 days after the reporting of any such Reportable
Event to the Administrative Agent or after the receipt by the
Administrative Agent of the statement required pursuant to Section 5.06,
the Administrative Agent shall have notified the Borrower in writing that
(i) the Required Banks have made a determination that, on the basis of
such Reportable Event or Reportable Events or the failure to make a
required payment, there are reasonable grounds (A) for the termination of
such Plan or Plans by the PBGC, (B) for the appointment by the appropriate
United States District Court of a trustee to administer such Plan or Plans
or (C) for the imposition of alien in favor of a Plan and (ii) as a result
thereof an Event of Default exists hereunder; or a trustee shall be
appointed by a United States District Court to administer any such Plan or
Plans; or the PBGC shall institute proceedings to terminate any Plan or
Plans;
(k) any Loan Document, at any time after its execution and delivery
and for any reason, shall cease to be in full force and effect, or is
declared by a court of competent jurisdiction to be null and void, invalid
or unenforceable in any respect; or the Borrower denies that it has any or
further liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind any Loan Document, in all cases when the
Loans are no longer secured, excluding the First Mortgage Bond, the First
Mortgage, the Supplemental Indenture and the Bond Delivery Agreement;
(l) a Change in Control shall occur;
(m) if the Loans are secured, the Lien purported to be created in
any substantial portion of the property of the Borrower purported to be
made subject thereto pursuant to the First Mortgage shall at any time fail
to be a valid, perfected, first priority Lien (subject to Liens permitted
to exist by the terms of the First Mortgage) securing the obligations of
the Borrower under the First Mortgage (including the obligations of the
First Mortgage Bond) and such failure shall constitute or have resulted in
a "Completed Default" under the First Mortgage; or
45
(n) if the Loans are secured, the mortgage title insurance policy
referred to in Section 4.02(a)(ix) or any other mortgage title insurance
policy purported to be issued for the benefit of the trustee under the
First Mortgage, at any time after its issuance and for any reason, shall
cease to be in full force and effect, or is declared by a court of
competent jurisdiction to be null and void, invalid or unenforceable in
any respect; or the issuer of such policy denies that it has any or
further liability or obligation under such policy, or purports to revoke,
terminate or rescind such policy.
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Banks, shall, by notice to the Borrower, take any or all of the
following actions, at the same or different times: (i) terminate forthwith the
Commitments, (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon (A) the Commitments will automatically be
terminated and (B) the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document,
shall become forthwith due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding, and (iii) if the Loans are secured, deliver to the
Borrower notice demanding redemption of the First Mortgage Bond; and in any
event with respect to the Borrower described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of the Borrower accrued hereunder and under any other
Loan Document, shall automatically become due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein or in any other Loan
Document to the contrary notwithstanding.
ARTICLE VIII
RELEASE OF COLLATERAL
Section 8.01 Borrower's Election Upon Credit Upgrade. In the event
that (a) the Senior Debt Rating assigned to the Borrower's most senior unsecured
public Indebtedness by two nationally recognized credit rating agencies shall be
equal to or higher than Lowest Investment Grade, in each case with a stable
outlook, and (b) no Default or Event of Default shall have occurred and be
continuing, then, upon demand of the Borrower, the Administrative Agent shall
return to the Borrower the First Mortgage Bond then held by it, without
recourse, representation or warranty, and execute and deliver to the Borrower
such documents of assignment as may be reasonably requested by the Borrower to
terminate the Lien of the Administrative Agent in such First Mortgage Bond.
Section 8.02 Release Upon Commitment Reduction. In connection with
any permanent reduction in the Commitments pursuant to Section 2.10(b), the
Administrative Agent shall surrender to, or upon the order of, the Borrower the
First Mortgage Bond then held by the Administrative Agent against receipt by the
Administrative Agent of a substitute First Mortgage Bond in an amount equal to
the total Commitments after giving effect to the reduction.
46
Section 8.03 Release Upon Termination and Repayment. The
Administrative Agent shall surrender to, or upon the order of, the Borrower all
First Mortgage Bonds then held by it at the first time at which the Commitments
shall have been terminated and all amounts owing under this Agreement shall have
been paid in full.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.01 Appointment and Powers. In order to expedite the
various transactions contemplated by the Loan Documents, The Bank of New York is
hereby appointed to act as Administrative Agent on behalf of the Banks and the
Issuing Banks. Each of the Banks and the Issuing Banks hereby irrevocably
authorizes and directs the Administrative Agent to take such action on behalf of
such Bank or Issuing Bank under the terms and provisions of the Loan Documents,
and to exercise such powers thereunder as are specifically delegated to or
required of the Administrative Agent by the terms and provisions thereof,
together with such powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized on behalf of the Banks and
the Issuing Banks, without hereby limiting any implied authority, (a) to receive
on behalf of each of the Banks and the Issuing Banks any payment of principal of
or interest on the Loans outstanding hereunder, LC Reimbursements and all other
amounts accrued under the Loan Documents paid to the Administrative Agent, and
to distribute to each Bank and Issuing Bank its proper share of all payments so
received as soon as practicable; (b) to give notice promptly on behalf of each
of the Banks and the Issuing Banks to the Borrower of any Event of Default of
which the Administrative Agent has actual knowledge acquired in connection with
its agency hereunder; and (c) to distribute promptly to each Bank and Issuing
Bank copies of all notices, agreements and other material as provided for in the
Loan Documents as received by such Administrative Agent.
Section 9.02 Limitation on Liability. Neither the Administrative
Agent nor any of its directors, officers, employees or agents shall be liable to
any Bank or Issuing Bank as such for any action taken or omitted by any of them
under the Loan Documents except for its or his own gross negligence or willful
misconduct, or be responsible for any statement, warranty or representation
therein or the contents of any document delivered in connection therewith or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower of any of the terms, conditions, covenants or
agreements of the Loan Documents. The Administrative Agent shall not be
responsible to the Banks or the Issuing Banks for the due execution,
genuineness, validity, enforceability or effectiveness of the Loan Documents or
any other instrument to which reference is made therein. The Administrative
Agent shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the Required Banks,
and, except as otherwise specifically provided herein, such instructions and any
action taken or failure to act pursuant thereto shall be binding on all the
Banks and the Issuing Banks. The Administrative Agent shall, in the absence of
knowledge to the contrary, be entitled to rely on any paper or document believed
by it in good faith to be genuine and correct and to have been signed or sent by
the proper person or persons. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall have any responsibility to the
Borrower on account of the failure or delay in performance or breach by any
47
Bank or Issuing Bank of any of its obligations under the Loan Documents or to
any Bank or Issuing Bank on account of the failure of or delay in performance or
breach by any other Bank or Issuing Bank or the Borrower of any of their
respective obligations thereunder or in connection therewith. The Administrative
Agent may execute any of its duties under the Loan Documents by or through
agents or attorneys selected by them using reasonable care and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys selected and authorized to act by it with reasonable
care unless the damage complained of directly results from an act or failure to
act on part of the Administrative Agent which constitutes gross negligence or
willful misconduct. Delegation to an attorney or Administrative Agent shall not
release the Administrative Agent from its obligation to perform or cause to be
performed the delegated duty. The Administrative Agent shall be entitled to
advice of legal counsel selected by it with respect to all matters arising under
the Loan Documents and shall not be liable for any action taken or suffered in
good faith by it in accordance with the advice of such counsel.
Section 9.03 Other Transactions with the Borrower. The
Administrative Agent and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of business with the Borrower or other
Affiliate thereof as if it were not the Administrative Agent.
Section 9.04 Reimbursement; Indemnification. Each Bank agrees (a) to
reimburse the Administrative Agent in the amount of such Bank's Pro Rata Share
of any expenses incurred for the benefit of the Banks by the Administrative
Agent, including reasonable counsel fees and compensation of agents and
employees paid for services rendered on behalf of the Banks, not reimbursed by
the Borrower and (b) to indemnify and hold harmless the Administrative Agent and
any of its directors, officers, employees or agents, on demand, in the amount of
its Pro Rata Share, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it in its capacity as the Administrative Agent or any of
them in any way relating to or arising out of the Loan Documents or any action
taken or omitted by it or any of them under the Loan Documents, to the extent
not reimbursed by the Borrower; provided, however, that no Bank shall be liable
to the Administrative Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or willful misconduct of the
Administrative Agent or any of its directors, officers, employees or agents.
Section 9.05 Absence of Reliance. Each of the Banks and the Issuing
Banks acknowledges that it has, independently and without reliance upon the
Administrative Agent, the Issuing Banks or any other Bank and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each of the Banks and the
Issuing Banks also acknowledges that it will, independently and without reliance
upon the Administrative Agent, or any other Issuing Bank or Bank based on such
documents and information as it shall deem appropriate at the time, continue to
make its own decisions in taking or not taking action under or based upon the
Loan Documents, any related agreement or any document furnished thereunder.
48
Section 9.06 Resignation of the Administrative Agent. The
Administrative Agent may at any time give notice of its resignation to the
Issuing Banks, the Banks and the Borrower. Upon receipt of any such notice of
resignation, the Required Banks may, with the consent of the Borrower (which
consent shall not be unreasonably withheld and shall not be required during an
Event of Default), appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Banks and
shall have accepted such appointment within 30 days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Issuing Banks and the Banks and after
consultation with the Issuing Banks, the Banks and the Borrower, appoint a
successor Administrative Agent. Upon the acceptance by any Person of its
appointment as a successor Administrative Agent, such Person shall thereupon
succeed to and become vested with all the rights, powers, privileges, duties and
obligations of the retiring Administrative Agent and the retiring Administrative
Agent shall be discharged from its duties and obligations as Administrative
Agent under the Loan Documents. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Article IX shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent.
Section 9.07 Syndication Agent; Documentation Agents; Managing
Agent; Co-Agents. None of the Syndication Agent, the Documentation Agents, the
Managing Agent or the Co-Agents shall have any rights, powers, obligations,
liabilities, responsibilities or duties under the Loan Document other than those
applicable to all Banks as such. Without limiting the foregoing, none of the
Banks identified as "Syndication Agent," "Documentation Agent," "Managing Agent"
or "Co-Agent" shall have or be deemed to have any fiduciary relationship with
any Bank. Each of the Banks and the Issuing Banks acknowledges that it has not
relied, and will not rely, on any of the Banks so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
Section 10.01 Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed or sent by telecopy, graphic scanning or other telegraphic
communications equipment of the sending party, as follows:
(a) if to the Borrower, to:
Avista Corporation
East ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (99202)
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President and Chief Financial Officer
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to the Administrative Agent, to:
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
One Wall Street
Agency Function Administration
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: 212-635-6365 or 6366 or 6376
with a copy to:
The Bank of New York
Energy Industries Division
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
(c) if to a Bank or an Issuing Bank, to it at its address (or
telecopy number) set forth in Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Bank or Issuing Bank shall have become a
party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or other telegraphic communications equipment of the sender, or on the
date five Business Days after dispatch by certified or registered mail if
mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 10.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 10.01.
Section 10.02 Survival of Agreement. All covenants, agreements,
representations and warranties, including, without limitation, any indemnities
and reimbursement obligations, made by the Borrower in the Loan Documents and in
the certificates or other instruments prepared or delivered in connection
therewith or pursuant thereto shall be considered to have been relied upon by
the Banks and the Issuing Banks and shall survive the making by the Banks of the
Loans and issuance by the Issuing Banks of any Letters of Credit, and the
execution and delivery to the Banks of any Notes evidencing such Loans,
regardless of any investigation made by the Banks or the Issuing Banks, or on
their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated.
Section 10.03 Binding Effect; Successors and Assigns. This Agreement
and the amendment and restatement reflected hereby shall become effective when
it shall have been executed by the Borrower and the Administrative Agent and
when the Administrative Agent shall have received copies hereof which, when
taken together, bear the signatures of each Bank and Issuing Bank, and
thereafter shall be binding upon and inure to the benefit of the Borrower,
50
the Administrative Agent, and each Issuing Bank and Bank and their respective
successors and permitted assigns. Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the successors
and permitted assigns of such party; and all covenants, promises and agreements
by or on behalf of the Borrower, the Administrative Agent, the Issuing Banks or
the Banks that are contained in this Agreement shall bind and inure to the
benefit of their respective successors and permitted assigns.
Section 10.04 Successors and Assigns. (a) Subject to Section 6.03,
the Borrower may not assign or delegate any of its rights or duties under any of
the Loan Documents without the prior written consent of each of the Banks and
the Issuing Banks.
(b) Each Bank (including the Administrative Agent or the Issuing
Banks when acting as a Bank) may assign to one or more assignees all or a
portion of its interests, rights and obligations under the Loan Documents
(including, without limitation, all or a portion of its Commitment and the same
portion of the applicable Loan or Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Bank or Affiliate of
a Bank, the Borrower and the Administrative Agent must give their prior written
consent to such assignment (which consents shall not be unreasonably withheld),
provided that the consent of the Borrower shall not be required if an Event of
Default shall exist, (ii) in the case of an assignment to a person other than a
Bank of all or a portion of a Bank's Commitment or its obligation in respect of
its LC Exposure, the applicable Issuing Banks must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(iii) that no assignee of any Bank shall be entitled to receive any greater
payment or protection under Sections 2.12, 2.13(a) or 2.18 than such Bank would
have been entitled to receive with respect to the rights assigned or otherwise
transferred unless such assignment or transfer shall have been made at a time
when the circumstances giving rise to such greater payment did not exist, (iii)
each such assignment shall be of a constant, and not a varying, percentage of
all the assigning Bank's rights and obligations under this Agreement, (iv) the
amount of the Commitment of the assigning Bank subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 (or, if less, the total amount of their Commitments), (v) the parties
to each such assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption and a processing and recordation fee of $3,500 and
(vi) the assignee, if it shall not be a Bank, shall deliver to the
Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to paragraph (d) of this Section 10.04, from and after the
effective date specified in each Assignment and Assumption, which effective date
shall be at least five Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a
Bank under the Loan Documents and (B) the assigning Bank thereunder shall, to
the extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under the Loan Documents (and, in the case of an
Assignment and Assumption covering all or the remaining portion of an assigning
Bank's rights and obligations under the Loan Documents, such Bank shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.12, 2.14, 2.18 and 9.05, as well as to any Fees accrued for its account and
not yet paid).
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(c) The Administrative Agent shall maintain a copy of each
Assignment and Assumption delivered to it including the recordation of the names
and addresses of the Banks, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Bank pursuant to the terms hereof from
time to time (the "Register"). The Administrative Agent, the Issuing Banks and
the Banks may treat each person whose name is recorded in the Register pursuant
to the terms hereof as a Bank hereunder for all purposes of the Loan Documents.
The Register shall be available for inspection by the Borrower, and any Issuing
Bank and any Bank, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Bank and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Bank hereunder), the processing and recordation fee referred to in paragraph (b)
above and, to the extent required, the written consent of the Borrower, the
Administrative Agent and the Issuing Banks to such assignment, the
Administrative Agent shall (i) accept such Assignment and Assumption, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Issuing Banks and the Borrower. Upon the request of the
assignee, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent, a new Note or Notes to the order of such assignee in a
principal amount equal to the applicable Commitment assumed by it pursuant to
such Assignment and Assumption and, if the assigning Bank has retained a
Commitment, upon the request of the assigning Bank, the Borrower shall execute
and deliver a new Note to the order of such assigning Bank in a principal amount
equal to the applicable Commitment retained by it. Canceled Notes shall be
returned to the Borrower.
(e) Each Bank may without the consent of the Borrower, the Issuing
Banks or the Administrative Agent sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under the Loan
Documents (including all or a portion of its Commitment and the Loans owing to
it and any Notes held by it); provided, however, that (i) such Bank's
obligations under the Loan Documents shall remain unchanged, (ii) such Bank
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.12, 2.14 and 2.18 to the same extent as if they were Banks (provided, that the
amount of such benefit shall be limited to the amount in respect of the interest
sold to which the seller of such participation would have been entitled had it
not sold such interest) and (iv) the Borrower, the Administrative Agent, the
Issuing Banks and the other Banks shall continue to deal solely and directly
with such Bank in connection with such Bank's rights and obligations under the
Loan Documents, and such Bank shall retain the sole right to enforce the
obligations of the Borrower relating to the Loans and to approve any amendment,
modification or waiver of any provision of the Loan Documents (other than
amendments, modifications or waivers (i) decreasing any Fees or the amount of
principal of or the rate at which interest is payable on the Loans or LC
Disbursements, (ii) extending any scheduled date for the payment of Fees or
principal of or interest on Loans or LC Disbursements, (iii) extending the
expiration date of the Commitments or extending the expiration date of any
Letter of Credit to a date after the expiration date of the Commitments or (iv)
releasing the First Mortgage Bond or releasing all or substantially all of the
collateral therefor, in each such case except pursuant to Article VIII.
52
(f) Any Bank or participant may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 10.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Bank by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information.
(g) Notwithstanding anything to the contrary contained herein, any
Bank (a "Granting Bank") may grant to a special purpose funding vehicle (an
"SPC") the option to fund all or any part of any Loan that such Granting Bank
would otherwise be obligated to fund pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to fund
all or any part of such Loan, the Granting Bank shall be obligated to fund such
Loan pursuant to the terms hereof. The funding of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Bank to the same extent, and as if,
such Loan were funded by such Granting Bank. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or payment under the Loan
Documents for which a Bank would otherwise be liable for so long as, and to the
extent, the Granting Bank provides such indemnity or makes such payment.
Notwithstanding anything to the contrary contained in this Agreement, any SPC
may disclose on a confidential basis any non-public information relating to its
funding of Loans to any rating agency, commercial paper dealer or provider of
any surety or guarantee to such SPC. This paragraph may not be amended without
the prior written consent of each Granting Bank, all or any part of whose Loan
is being funded by an SPC at the time of such amendment.
(h) Any Bank may at any time assign for security purposes all or any
portion of its rights under the Loan Documents to a Federal Reserve Bank;
provided that no such assignment shall release a Bank from any of its
obligations thereunder.
Section 10.05 Expenses; Indemnity, Damage Waiver. (a) The Borrower
agrees to pay all reasonable out-of-pocket expenses (including the reasonable
fees, charges and disbursements of internal or external legal counsel) (i)
incurred by the Administrative Agent in connection with the preparation of the
Loan Documents or in connection with any amendments, modifications or waivers of
the provisions thereof (whether or not the transactions thereby contemplated
shall be consummated), (ii) incurred by the Issuing Banks in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder, or (iii) incurred by the Administrative Agent, or any
Bank or Issuing Banks in connection with the enforcement or protection of their
rights in connection with the Loan Documents or any Loan or any Letter of Credit
or participation therein.
(b) The Borrower agrees that it shall indemnify the Administrative
Agent, the Issuing Banks and the Banks from and hold them harmless against any
documentary taxes, assessments or charges made by any Governmental Authority by
reason of the execution and delivery of this Agreement or any of the other Loan
Documents.
53
(c) The Borrower agrees to indemnify the Administrative Agent, and
each Issuing Bank and Bank, and each of their respective directors, officers,
employees and agents (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the Transactions and the other transactions
contemplated thereby, (ii) the use of the proceeds of the Loans and of the
Letters of Credit (including any refusal by an Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of Credit)
or (iii) any claim, litigation, investigation or proceeding relating to any of
the foregoing, whether or not any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses are determined by
a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(d) To the fullest extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby, the transactions contemplated hereby or thereby,
any Loan or Letter of Credit or the use of the proceeds thereof; provided that
such waiver shall not, as to any Indemnitee, apply to special, indirect or
consequential damages to the extent resulting from, or punitive damages awarded
on account of, conduct by such Indemnitee that is determined by a court of
competent jurisdiction by final and nonappealable judgment to have constituted
gross negligence or willful misconduct by such Indemnitee.
(e) The provisions of this Section 10.05 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent or any Issuing Bank or Bank.
All amounts due under this Section 10.05 shall be payable on written demand
therefor.
Section 10.06 Right of Setoff. If an Event of Default shall have
occurred and be continuing and the Loans shall have been accelerated as set
forth in Article VII, each of the Banks and the Issuing Banks is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Bank or Issuing Bank (or bank Controlling such Bank or
Issuing Bank) to or for the credit or the account of the Borrower against any of
and all the obligations of the Borrower now or hereafter existing under this
Agreement and other Loan Documents held by such Bank or Issuing Bank,
irrespective of whether or not such Bank or Issuing Bank shall have made any
demand under this Agreement or any other Loan Document and although such
obligations of the Borrower are owed to a branch or office of such Bank or the
Issuing Bank different from the
54
branch or office holding such deposit or obligated on such indebtedness. The
rights of each Bank and Issuing Bank under this Section are in addition to other
rights and remedies (including other rights of setoff) which such Bank or
Issuing Bank may have. Any Bank or Issuing Bank, as the case may be, shall
promptly notify the Borrower after exercising its rights under this Section.
Section 10.07 Applicable Law. THIS AGREEMENT, AND THE OTHER LOAN
DOCUMENTS OTHER THAN THE FIRST MORTGAGE BOND, THE FIRST MORTGAGE AND THE
SUPPLEMENTAL INDENTURE, SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
Section 10.08 Waivers; Amendment. (a) No failure or delay of the
Administrative Agent or any Issuing Bank or Bank in exercising any power or
right under the Loan Documents shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the Issuing Banks and the Banks
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies which they would otherwise have. No waiver
of any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances.
(b) Neither the Loan Documents nor any provision thereof (excluding
letter of credit applications, which may be waived, amended or modified by
agreement of the Borrower and the applicable Issuing Bank) may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Banks; provided, however, that no
such agreement shall (i) without the consent of the applicable Bank, (A)
decrease the principal of or the rate of interest on such Bank's Loans or the
Fees payable to such Bank, (B) extend the date for any scheduled payment of
principal of or interest on such Bank's Loans or the Fees payable to such Bank,
or (C) increase the amount or extend the expiration date of such Bank's
Commitment, or (ii) without the consent of each Bank, (A) decrease the principal
of or the rate of interest on any LC Disbursement, (B) extend the date for any
scheduled payment of principal of or interest on any LC Disbursement, (C) extend
the expiration date of any Letter of Credit to a date after the Expiration Date,
(D) release the First Mortgage Bond or release all or substantially all of the
collateral therefor, in each such case except pursuant to Article VIII, or (E)
amend or modify the provisions of Section 2.15, the provisions of this Section,
the definition of "Required Banks", or any other provision requiring the consent
or agreement of each of the Banks; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent or the Issuing Banks under the Loan Documents without the prior written
consent of the Administrative Agent or the Issuing Banks, as the case may be.
Each Bank and each holder of a Note shall be bound by any waiver, amendment or
modification authorized by this Section regardless of whether its Note shall
have been marked to make reference thereto, and any consent by any Bank or
holder
55
of a Note pursuant to this Section shall bind any person subsequently acquiring
a Note from it, whether or not such Note shall have been so marked.
Section 10.09 Interest Rate Limitation. Notwithstanding anything
herein or in any Notes to the contrary, if at any time the applicable interest
rate, together with all fees and charges which are treated as interest under
applicable law (collectively the "Charges"), as provided for herein or in any
other document executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Bank, shall exceed the maximum
lawful rate (the "Maximum Rate") which maybe contracted for, charged, taken,
received or reserved by such Bank in accordance with applicable law, the rate of
interest payable under any Note held by such Bank, together with all Charges
payable to such Bank, shall be limited to the Maximum Rate.
Section 10.10 Entire Agreement. Each Loan Document constitutes the
entire contract between the parties relative to the subject matter thereof, and
any previous agreement among the parties with respect to the subject matter
thereof is superseded by such Loan Document. Nothing in this Agreement or in the
other Loan Documents, expressed or implied, is intended to confer upon any party
other than the parties hereto and thereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the other Loan Documents.
Section 10.11 Waiver of Jury Trial. Each party hereto hereby waives,
to the fullest extent permitted by applicable law, any right it may have to a
trial by jury in respect of any litigation directly or indirectly arising out
of, under or in connection with this Agreement or any of the other Loan
Documents. Each party hereto (a) certifies that no representative,
Administrative Agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce the foregoing waiver and (b) acknowledges that it and the other
parties hereto have been induced to enter into this Agreement and the other Loan
Documents, as applicable, by, among other things, the mutual waivers and
certifications in this Section 10.11.
Section 10.12 Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
Section 10.13 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 10.03.
Section 10.14 Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
Section 10.15 Jurisdiction; Consent to Service of Process. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive
56
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or the
other Loan Documents, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. 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 any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent,
or any other Issuing Bank or Bank may otherwise have to bring any action or
proceeding relating to this Agreement or the other Loan Documents against the
Borrower or its properties in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this agreement or the other Loan
Documents in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
Section 10.16 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.
57
WITNESS the due execution hereof as of the date first above written.
AVISTA CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Sr. VP, CFO & Traesurer
Avista Corporation Five Year Revolving Credit Agreement -Signature Pages
THE BANK OF NEW YORK,
as Administrative Agent, an Issuing Bank
and a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Avista Corporation Five Year Revolving Credit Agreement -Signature Pages
ALLIED IRISH BANKS, p.l.c.,
as a Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Avista Corporation Five Year Revolving Credit Agreement -Signature Pages
BANK HAPOALIM B.M.,
as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
Avista Corporation Five Year Revolving Credit Agreement -Signature Pages
BANK OF AMERICA, N.A.,
as Managing Agent and a Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
Avista Corporation Five Year Revolving Credit Agreement -Signature Pages
COMERICA WEST INCORPORATED,
as a Bank
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Corporate Banking Officer
Avista Corporation Five Year Revolving Credit Agreement -Signature Pages
FIRST COMMERCIAL BANK, NEW YORK AGENCY,
as a Bank
By: /s/ ▇▇▇▇▇ ▇.▇. ▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇.▇. ▇▇
Title: GM & VP
Avista Corporation Five Year Revolving Credit Agreement -Signature Pages
KEYBANK NATIONAL ASSOCIATION,
as Documentation Agent and a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Avista Corporation Five Year Revolving Credit Agreement -Signature Pages
MIZUHO CORPORATE BANK, LTD.,
as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
Avista Corporation Five Year Revolving Credit Agreement -Signature Pages
STERLING SAVINGS BANK,
as a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Avista Corporation Five Year Revolving Credit Agreement -Signature Pages
UNION BANK OF CALIFORNIA, N.A.,
as Syndication Agent, an Issuing Bank
and a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
Avista Corporation Five Year Revolving Credit Agreement -Signature Pages
U.S. BANK, NATIONAL ASSOCIATION,
as Documentation Agent and
a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
Avista Corporation Five Year Revolving Credit Agreement -Signature Pages
▇▇▇▇▇ FARGO BANK,
as Documentation Agent, an Issuing Bank
and a Bank
By:______________________________________
Name:
Title:
Avista Corporation Five Year Revolving Credit Agreement -Signature Pages