2009120447th Supplemental Indenture, Credit Agreement.pdf

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lic Utilties Commssion
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Attention: Jean D. Jewell, Secretar
Case No. A VU-U-08-!ìo.;
We are submitting the following information in compliance with the Commssion's Order No.
30673 under Case No. A VU-U-08-02 for the sale of $225,000,000 various debt arangements.
On November 25, 2009, Avista Corporation (AvistaCorp. or the Company) entered into a
commtted line of credit agreement with JPMorgan Chase Ban, N.A. and UBS Securties LLC, as Co-
Documentation Agents, Wells Fargo Securties, LLC, as Syndication Agent, Union Ban, N.A., as
Admstrative Agent, KeyBan National Association, and U.S. Bank National Association in the
amount of $75.0 millon with an expiration date of Apri15, 2011. The new $75.0 millon commtted line
of credit replaces a $200.0 millon commtted line of credit that expired on November 24,2009 and wil
be in addition to the Company's curent $320.0 million commtted line of credit that expires on Apri15,
2011. Avista Corp. may elect to increase the commtted line of credit by up to $25.0 million under the
same agreement. The commtted line of credit is secured by $75.0 millon of non-transferable First
Mortgage Bonds of the Company issued to the agent ban. Such First Mortgage Bonds would only
become due and payable in the event, and then only to the extent, that the Company defaults on its
obligations under the commtted line of credit.
Please contact Damen Lysiak at [phone] if you have any questions.
Sincerely,~-~
Diane C. Thoren
Treasurer
Enclosure
Fòrty-Seventh Supplemental Indentue Page 1 of26
Avo '-lJ"'oß-o~
EX-4.1 2 dex4L.htm FORTY-SEVENTH SUPPLEMENTAL INDENTURE
Exhibit 4.1
AVISTA CORPORATION
TO
CITffANK, N.A.
~¿; ~ 11/- ~ ~vf:'0 \~ C1?-o ... \~~;, ~ Z.'\. u ",\~ \C,
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As Successor Trustee under
Mortgage and Deed of Trust,
dated as of June 1, 1939
Forty-seventh Supplemental Indenture
Providing among other things for a series of bonds designated
"First Mortgage Bonds, Collateral Series 2009A "
Due April 5, 2011
Dated as of November i, 2009
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Forty-Seventh Supplemental Indentue Page 2 of26
FORTY-SEVENTH SUPPLEMENTAL INDENTUR
THIS INDENTUR, dated as of the 1st day of November, 2009, between AVISTA CORPORATION (formerly
known as The Washington Water Power Company), a corporation of the State of Washigton, whose post offce address is
1411 East Mission Avenue, Spokane, Washington 99202 (the "Company"), and CITIAN, N.A., formerly First National
City Bank (successor by merger to First National City Trust Company, formerly City Ban Farers Trust Company), a
national bang association incorporated and existing under the laws of the United States of America, whose post offce
address is 388 Greenwich Street, 14 th Floor, New York, New York 10013 (the "Trustee"), as Trustee under the Mortgage and
Deed of Trust, dated as of June 1, 1939 (the "Original Mortgage"), executed and delivered by the Company to secure the
payment of bonds issued or to be issued under and in accordace with the provisions thereof, this indentue (the "Fort-
seventh Supplemental Indenture") being supplemental to the Original Mortgage, as heretofore supplemented and amended.
WHEREAS pursuant to a wrtten request of the Company made in accordance with Section 1 03 of the Original
Mortgage, Francis M. Pitt (then Individual Trustee under the Mortgage, as supplemented) ceased to be a trtee thereunder
on July 23, 1969, and all of his powers as Individual Trutee have devolved upon the Trustee and its successors alone; and
WHEREAS by the Original Mortgage the Company covenanted tht it would execute and deliver such fuer
instrments and do such fuer acts as might be necessar or proper to car out more effectually the purposes of the
Original Mortgage and to make subject to the lien of the Original Mortgage any property thereafter acquired intended to be
subject to the lien thereof; and
WHEREAS the Company has heretofore executed and delivered, in addition to the Original Mortgage, the
indentures supplemental thereto, and has issued the series of bonds, set fort in Exhibit A hereto (the Original Mortgage, as
supplemented and amended by the First though Fort-sixth Supplemental Indentures, being herein sometimes called the
"Mortgage"); and
WHEREAS the Original Mortgage and the First though Fort-fifth Supplemental Indentues have been
appropriately fied or recorded in various offcial records in the States of Washington, Idao, Montana and Oregon, as set
fort in the First though Forty-sixth Supplemental Indentues and the Instrument of Further Assurance, dated December 15,
2001, hereinafter referred to; and
WHEREAS the Forty-sixth Supplemental Indentue, dated as of September 1, 2009, has been appropriately fied or
recorded in the States of Washington, Idaho, Montaa and Oregon, as set fort in Exhibit B hereto; and
WHEREAS for the purose of confining or perfecting the lien of the Mortgage on certain of its properties, the
Company has heretofore executed and delivered a Short Form Mortgage and Security Agreement, in multiple counterpar
dated as of varous dates in 1992, and such instrment has been appropriately fied or recorded in the varous official records
in the States of Montana and Oregon; and
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Fort-Seventh Supplemental Indentue Page 3 of26
WHEREAS for the purose of confrming or perfecting the lien of the Mortgage on certin of its properties, the
Company has heretofore executed and delivered an Instruent of Furher Assurance, dated as of December 15,2001, and
such intrent has been appropriately fied or recorded in the varous offcial records in the States of Washington, Idao,
Montaa and Oregon; and
WHEREAS in addition to the propert described in the Mortgage the Company has acquired certin other propert,
rights and interests in propert; and
WHEREAS Section 120 of the Original Mortgage, as heretofore amended, provides that, without the consent of
any holders of bonds, the Company and the Trustee, at any time and from time to time, may enter into indentures
supplemental to the Original Mortgage for varous puroses set fort therein, including, without limitation, to cure
ambiguities or correct defective or inconsistent provisions or to make other changes therein that shall not adversely affect the
interests of the holders of bonds of any series in any material respect or to establish the form or terms of bonds of any series
as contemplated by Aricle II.
WHEREAS Section 8 of the Original Mortgage, as heretofore amended, provides that the form of each series of
bonds (other than the First Series) issued thereunder and of the coupons to be attached to coupon bonds of such series shall be
established by Resolution of the Board of Directors of the Company or by Treasurer's Certificate, or shall be set fort in an
indenture supplemental to the Original Mortgage; that the form of such series, as so established, shall specify the descriptive
title of the bonds and various other terms thereof; and that such series may also contain such provisions not inconsistent with
the provisions of the Mortgage as the Company may, in its discretion, cause to be inserted therein expressing or referrg to
the terms and conditions upon which such bonds are to be issued and/or secured under the Mortgage; and
WHEREAS the Company now desires to create a new series of bonds; and
WHEREAS all corporate action necessar to authorize the execution and delivery by the Company of this Fort-
seventh Supplemental Indenture and the issuance by the Company of the Bonds of the Fort-seventh Series, hereinafter
referred to, has been taken; and all things necessar to make this Fort-seventh Supplemental Indenture a valid, binding and
legal instrment have been performed;
NOW, THEREFORE, THIS INENT WITNESSETH: That the Company, in consideration of the premises
and of other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, hereby confrms
the estate, title and rights of the Trustee (including, without limitation, the lien of the Mortgage on the propert of the
Company subjected thereto, whether now owned or hereafter acquired) held as securty for the payment of both the principal
of and interest and premium, if any, on the bonds from time to time issued under the Mortgage according to their tenor and
effect and the performance of all the provisions of the Mortgage and of such bonds, and, without limiting the generality of the
foregoing, hereby confirms the grat, bargain, sale, release, conveyance, assignment, transfer, mortgage, pledge, setting over
and confirmation unto the Trustee, contained in the Mortgage, of all the following described properties of the Company,
whether now owned or hereafter acquired, namely:
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Forty-Seventh Supplemental Indentue Page 4 of26
All of the propert, real, personal and mixed, of every character and wheresoever situated (except any hereinafter
or in the Mortgage expressly excepted) which the Company now owns or, subject to the provisions of Section 87 of the
Original Mortgage, may hereafter acquire prior to the satisfaction and discharge of the Mortgage, as fully and
completely as if herein or in the Mortgage specifically described, and including (without in anywise limiting or
iinpairing by the enumeration of the same the scope and intent of the foregoing or of any general description contained
in Mortgage) all lands, real estate, easements, servtudes, rights of way and leasehold and other interests in real estate;
all rights to the use or appropriation of water, flowage rights, water storage rights, flooding rights, and other rights in
respect of or relating to water; all plants for the generation of electrcity, power houses, dams, da sites, reservoirs,
flumes, raceways, diversion works, head works, waterways, water works, water systems, gas plants, steam heat plants,
hot water plants, ice or refrigeration plants, stations, substations, offices, buildings and other works and strctues and
the equipment thereof and all improvements, extensions and additions thereto; all generators, machinery, engines,
turbines, boilers, dynamos, transformers, motors, electrc machines, switchboards, regulators, meters, electrcal and
mechancal appliances, conduits, cables, pipes and mains; all lines and systems for the transmission and distrbution of
electric current, gas, steam heat or water for any purpose; all towers, mains, pipes, poles, pole lines, conduits, cables,
wires, switch racks, insulators, compressors, pumps, fittings, valves and connections; all motor vehicles and
automobiles; all tools, implements, apparatus, fuitue, stores, supplies and equipment; all franchises (except the
Company's franchise to be a corporation), licenses, permits, rights, powers and privileges; and (except as hereinafter or
in the Mortgage expressly excepted) all the right, title and interest of the Company in and to all other property of any
kid or natue.
The property so conveyed or intended to be so conveyed under the Mortgage shall include, but shall not be limited
to, the property set forth in Exhibit C hereto, the paricular description of which is intended only to aid in the
identification thereof and shall not be constred as limiting the force, effect and scope of the foregoing.
TOGETHER WITH all and singular the tenements, hereditaents and appurtenances belonging or in anywise
appertining to the aforesaid propert or any par thereof, with the reversion and reversions, remainder and remainders and
(subject to the provisions of Section 57 of the Original Mortgage) the tolls, rents, revenues, issues, eargs, income, produçt
and profits thereof, and all the estate, right, title and interest and claim whatsoever, at law as well as in equity, which the
Company now has or may hereafter acquire in and to the aforesaid propert and franchises and every par and parcel thereof.
THE COMPANY HEREBY CONFIRS that, subject to the provisions of Section 87 of the Original Mortgage, all
the propert, rights, and franchises acquired by the Company after the date thereof (except any hereinbefore or hereinafter or
in the Mortgage expressly excepted) are and shall be as fully embraced within the lien of the Mortgage as if such propert,
rights and franchises had been owned by the Company at the date of the Originl Mortgage and had been specifically
described therein.
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Forty-Seventh Supplemental Indenture Page 5 of26
PROVIDED THAT the following were not and were not intended to be then or now or hereafter granted,
bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confined under the Mortgage and
were, are and shall be expressly excepted from the lien and operation of the Mortgage namely: (1) cash, shares of stock and
obligations (including bonds, notes and other securities) not hereafter specifically pledged, paid, deposited or delivered under
the Mortgage or covenanted so to be; (2) merchandise, equipment, materials or supplies held for the purose of sale in the
usual course of business or for consumption in the operation of any properties of the Company; (3) bils, notes and accounts
receivable, and all contracts, leases and operating agreements not specifically pledged under the Mortgage or covenanted so
to be; (4) electric energy and other materials or products generated, manufactured, produced or purchased by the Company
for sale, distribution or use in the ordinar course of its business; and (5) any property heretofore released pursuant to any
provisions of the Mortgage and not heretofore disposed of by the Company; provided, however, that the propert and rights
expressly excepted from the lien and operation of the Mortgage in the above subdivisions (2) and (3) shall (to the extent
permitted by law) cease to be so excepted in the event that the Trustee or a receiver or trstee shall enter upon and take
possession of the Mortgaged and Pledged Property in the maner provided in Aricle XII of the Original Mortgage by reason
of the occurence of a Completed Default as defined in said Aricle XII.
TO HA VB AN TO HOLD all such properties, real, personal and mixed, granted, bargained, sold, released,
conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed by the Company in the Mortgage as aforesaid, or
intended so to be, unto the Trustee, and its successors, heirs and assigns forever.
IN TRUST NEVERTHELESS, for the same puroses and upon the same terms, trsts and conditions and subject to
and with the same provisos and covenants as set fort in the Mortgage, this Fort-seventh Supplemental Indentue being
supplemental to the Mortgage.
AN IT IS HEREBY FURTHER CONFIRMED by the Company that all the terms, conditions, provisos,
covenants and provisions contained in the Mortgage shall affect and apply to the propert in the Mortgage described and
conveyed, and to the estates, rights, obligations and duties of the Company and the Trustee and the beneficiaries of the trust
with respect to said propert, and to the Trustee and its successors in the trst, in the same maner and with the same effect as
if the said propert had been owned by the Company at the time of the execution of the Original Mortgage, and had been
specifically and at length described in and conveyed to said Trustee by the Original Mortgage as a par of the propert therein
stated to be conveyed.
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The Company fuher covenants and agrees to and with the Trustee and its successor or successors in such trt
under the Mortgage, as follows:
ARTICLE I
Forty-seventh Series of Bonds
SECTION 1.(1) There shall be a series of bonds designated "Collateral Series 2009A" (herein sometimes referrd
to as the "Bonds of the Fort-seventh Series"), each of which shall also bear the descriptive title Firt Mortgage Bond, and
the form thereof, is set forth on Exhbit (Dl hereto. Bonds of the Fort-seventh Series shall be issued as fully registered bonds
in denominations of One Thousand Dollars and, at the option of the Company, any amount in excess thereof (the exercise of
such option to be evidenced by the execution and delivery thereof) and shall be dated as in Section 10 of the Original
Mortgage provided. Each Bond of the Fort-seventh Series shall matue on April 5, 2011 (or such later date to which such
Stated Maturity shall have been extended as provided below) and shall bear interest, be redeemable and have such other
terms and provisions as set fort below.
(II) The Bonds of the Fort-seventh Series shall have the followig terms and characteristics:
(a) the Bonds of the Fort-seventh Series shall be intially authenticated and delivered under the Mortgage in the
aggregate principal amount of $75,000,000;
(b) the Bonds of the Forty-seventh Series shall bear interest at the rate of eight per centum (8%) per anum; interest
on such Bonds shall accrue from and includig the date of the initial authentication and delivery thereof, except as
otherwise provided in the form of Bond attched hereto as Exhibit D; interest on such Bonds shall be payable on each
Interest Payment Date and at Matuty (as each of such terms is hereinafter defmed); and interest on such Bonds durg
any period less than one year for which payment is made shall be computed in accordace with the Credit Agreement
(as hereinafter defmed);
(c) the principal of and premium, if any, and interest on each Bond of the Forty-seventh Series payable at Matuty
shall be payable upon presentation thereof at the office or agency of the Company in the Borough of Manattan, The
City of New York, in such coin or curency as at the time of payment is legal tender for public and private debts; and the
interest on each Bond of the Forty-seventh Series (other than interest payable at Matuty) shall be payable directly to
the registered owner thereof;
(d) the Bonds of the Forty-seventh Series shall not be redeemable, in whole or in par, at the option of the
Company;
(e)(i) the Bonds of the Fort-seventh Series are to be issued and delivered to the Administrative Agent (as
hereinafter defmed) in order to provide the benefit of the lien of the Mortgage as securty for the obligation of the
Company under the Credit Agreement to pay the Obligations (as hereinafter defmed), to the extent and subject to the
limitations set fort in clauses (iii) and (iv) of this subdivision;
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(ii) upon the earliest of (A) the occurrence of an Event of Default under the Credit Agreement, and furter
upon the condition that, in accordance with the terms of the Credit Agreement, the Commitments (as hereinafter
defied) shall have been or shall have terminated and any Loans (as hereinafter dermed) outstanding shall have been
declared to be or shall have otherwise become due and payable immediately and the Administrative Agent shall have
delivered to the Company a notice demanding redemption of the Bonds of the Fort-seventh Series which notice states
that it is being delivered pursuant to Aricle VII of the Credit Agreement; (B) the occurence of an Event of Default
under clause (g) or (h) of Aricle VII of the Credit Agreement; and (C) the Stated Maturity, then all Bonds of the Fort-
seventh Series shall be redeemed or paid imediately at the pricipal amount thereof plus accrued interest to the date of
redemption or payment;
(iii) the obligation of the Company to pay the accrued interest on Bonds of the Fort-seventh Series on any
Interest Payment Date prior to Maturity (a) shall be deemed to have been satisfied and discharged in full in the event
that all amounts then due in respect of the Obligations shall have been paid or (b) shall be deemed to remain unsatisfied
in an amount equal to the aggregate amount then due in respect of the Obligations and remaining unpaid (not in excess,
however, of the amount otherwse then due in respect of interest on the Bonds of the Fort-seventh Series);
(iv) the obligation of the Company to pay the pricipal of and accrued interest on Bonds of the Fort-seventh
Series at or after Maturity (x) shall be deemed to have been satisfied and discharged in full in the event that all amounts
then due in respect of the Obligations shall have been paid or (y) shall be deemed to remain unsatisfied in an amount
equal to the aggregate amount then due in respect of the Obligations and remaining unpaid (not in excess, however, of
the amount otherwise then due in respect of principal of and accrued interest on the Bonds of the Fort-seventh Series).
(v) the Trustee shall be entitled to presume that the obligation of the Company to pay the pricipal of and
interest on the Bonds of the Forty-seventh Series as the same shall become due and payable shall have been fully
satisfied and discharged unless and until it shall have received a written notice from the Administrative Agent, signed by
an authorized offcer thereof, stating that the principal of and/or interest on the Bonds of the Fort-seventh Series has
become due and payable and has not been fully paid, and specifying the amount of funds required to make such
payment;
(f) no service charge shall be made for the registration of transfer or exchange of Bonds of the Fort-seventh
Series;
(g) in the event of an application by the Administrative Agent for a substituted Bond of the Fort-seventh Series
pursuant to Section l6 of the Original Mortgage, the Administrative Agent shall not be required to provide any
indemnity or pay any expenses or charges as contemplated in said Section l6; and
(h) if the Expiration Date shall have been extended pursuant to Section 2. I 9 of the Credit Agreement, and if the
Company shall have fuished to the Trustee wrtten evidence of such extension, executed by the Administrative Agent,
the Stated Maturity shall, without furter act, be deemed to have been extended to the Expiration Date (as so extended).
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(i) the Bonds of the Fort-seventh Series shall have such other terms as are set fort in the form of bond attched
hereto as Exhibit D.
Anytg in this Fort-seventh Supplemental Indenture or in the Bonds of the Fort-seventh Series to the contrar
notwithstading, if, at the time of the Matuty of the Bonds of the Fort-seventh Series, the stated aggregate principal
amount of such Bonds then Outstading shall exceed the aggregate Commitments (as hereinafter derined), the aggregate
principal amount of such Bonds shall be deemed to have been reduced by the amount of such excess.
(II) For all purposes of this Aricle I, except as otherwse expressly provided or unless the context otherwise
requires, the terms derined below shall have the meanngs specified:
"Administrative Agent" means Union Ban, N.A., in its capacity as Administrative Agent under the Credit
Agreement.
"Bond Delivery Agreement" means the Bond Delivery Agreement, dated November 25, 2009 between the
Company and the Administrative Agent.
"Commitments" shall have the meaning specified in the Credit Agreement.
"Credit Agreement" means the Credit Àgreement, dated as of November 25,2009, among the Company, the
ban par thereto, Chase Ban, N.A. and UBS Securities LLC, as Co-Documentation Agents, Wells Fargo Securities,
LLC, as Syndication Agent, and the Adminstrtive Agent.
"Expiration Date" shall have the meaning specified in the Credit Agreement.
"Interest Payment Date" means March 3 I, June 30, September 30 and December 3 I.
"Loans" shall have the meaning specified in the Credit Agreement.
"Maturity" mean the date on which the principal of the Bonds of the Forty-seventh Series becomes due and
payable, whether at stated maturity, upon redemption or acceleration or otherwise.
"Obligations" shall have the meaning specified in the Bond Delivery Agreement.
"Stated Maturity" means April 5, 20l I or such later date to which such date shall have been extended as provided
in subsection II(h) above.
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Fort-Seventh Supplemental Indenture Page 90f26
A copy of the Credit Agreement is on fie at the offce of the Administrative Agent at 445 South Figueroa Street,
Los Angeles, CA 9007l and at the offce of the Company at 141 I East Mission Avenue, Spokane, WA 99202.
ARTICLE II
Outstanding Bonds
Upon the delivery of this Fort-seventh Supplemental Indentue, Bonds of the Fort-seventh Series in the
aggregate pricipal amount of $75,000,000 are to be issued and wil be Outstading, in addition to $1,471,700,000 aggregate
principal amount of bonds of prior series Outstanding at the date of delivery of this Fort-seventh Supplemental Indenture
(which amount excludes $200,000,000 in aggregate pricipal amount of First Mortgage Bonds, Collateral Series 2008A, to
be retired simultaneously with the issuance and delivery of the Bonds of the Fort-seventh Series); it being understood that,
subject to the provisions of the Mortgage, there shall be no limit upon the aggregate principal amount of Bonds of the Fort-
seventh Series which may be authenticated and delivered hereunder.
ARTICLE III
Miscellaneous Provisions
SECTION I. The terms defined in the Original Mortgage shall, for all puroses of this Fort-seventh Supplemental
Indenture, have the meanings specified in the Original Mortgage.
SECTION 2. The Trustee hereby confirms its acceptance of the trusts in the Original Mortgage declared, provided,
created or supplemented and agrees to perform the same upon the terms and conditions in the Original Mortgage set fort,
includig the following:
The Trustee shall not be responsible in any maner whatsoever for or in respect of the validity or sufficiency of this
Fort-seventh Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made by
the Company solely. Each and every term and condition contained in Aricle XVI of the Original Mortgage shall apply to and
form par of ths Fort-seventh Supplemental Indenture with the same force and effect as if the same were herein set fort in
full, with such omissions, variations and insertions, if any, as may be appropriate to make the same conform to the provisions
of this Fort-seventh Supplemental Indentue.
SECTION 3. Whenever in this Fort-seventh Supplemental Indentue either of the parties hereto is named or
referred to, this shall, subject to the provisions of Aricles XV and XVI of the Original Mortgage be deemed to include the
successors and assigns of such par, and all the covenants and agreements in this Forty-seventh Supplemental Indenture
contained by or on behalf of the Company, or by or on behalf of the Trutee, or either of them, shall, subject as aforesaid,
bind and inure to the respective benefits of the respective successors and assigns of such paries, whether so expressed or not.
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SECTION 4. Nothng in ths Fort-seventh Supplemental Indentue, expressed or implied, is intended, or shall be
constred, to confer upon, or to give to, any person, fin or corporation, other than the paries hereto and the holders of the
bonds and coupons Outstanding under the Mortgage, any right, remedy or claim under or by reason of this Fort-seventh
Supplemental Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all the covenants,
conditions, stipulations, promises and agreements in this Fort-seventh Supplemental Indentue contained by or on behalf of
the Company shall be for the sole and exclusive benefit of the paries hereto, and of the holders of the bonds and of the
coupons Outstanding under the Mortgage.
SECTION 5. This Fort-seventh Supplemental Indentue shall be executed in several counterpar, each of which
shall be an original and all of which shall constitute but one and the same instrent.
SECTION 6. The titles of the several Aricles of this Fort-seventh Supplemental Indentue shall not be deemed to
be any par thereof.
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IN WITNSS WHEREOF, on the 25th day of November, 2009, AVISTA CORPORATION has caused its
corporate name to be hereunto affixed, and this instrent to be signed and sealed by its President or one of its Vice
Presidents, and its corporate seal to be attested by its Corporate Secretar or one of its Assistant Corporate Secretaes for and
in its behalf, all in The City of Spokane, Washington, as of the day and year first above wrtten; and on the 25th day of
November, 2009, CITIBAN, N.A., has caused its corporate name to be hereunto affixed, and this intrent to be signed
and sealed by its President or one of its Vice Presidents or one of its Senior Trust Officers or one of its Trust Officers and its
corporate seal to be attested by one of its Vice Presidents or one of its Trust Offcers, all in The City of New York, New
York, as of the day and year first above wrtten.
A VISTA CORPORATION
By: lsi Jason R. Thackston
Name: Jason R. Thackston
Title: Vice President
Attest:
lsi Susan Y. Fleming
Name: Susan Y. Fleming
Title: Assistat Corporate Secretar
Executed, sealed and delivered
by AVISTA CORPORATION in the presence
of:
lsi Ryan L. Krasselt
Name: Ryan L. Krasselt
Title: Treasury Financing Manager
lsi Damien T. Lysiak
Name: Damien T. Lysiak
Title: Treasury Analyst
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CITIBAN, N.A., AS TRUSTEE
By: lsi Louis Piscitelli
Name: Louis Piscitell
Title: Vice President
Attest:
lsi John Hanon
Name: John Hanon
Title: Vice President
Executed, sealed and delivered
by CITIBAN, N.A., as trstee, in the presence of:
lsi Ciro Emanuele
Name: Cirno Emanuele
Title: Vice President
lsi Marion O'Connor
Name: Maron O'Connor
Title: Vice President
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STATE OFWASHINGTON )
) ss.:
COUNTY OF SPOKANE )
On the 25th day of November, 2009, before me personally appeared Jason R. Thackston, to me known to be a Vice
President of AVISTA CORPORATION, one of the corporations that executed the within and foregoing instrent, and
acknowledged said instrument to be the free and volunta act and deed of said Corporation for the uses and purposes therein
mentioned and on oath stated that he was authorized to execute said instrent and that the seal affxed is the corporate seal
of said Corporation.
On the 25th day of November, 2009, before me, Anita L. Swanson, a Notar Public in and for the State and County
aforesaid, personally appeared Jason R. Thackston, known to me to be a Vice President of AVISTA CORPORATION, one of
the corporations that executed the within and foregoing instrument and acknowledged to me that such Corporation executed
the same.
IN WITNSS WHEREOF, I have hereunto set my hand and affied my offcial seal the day and year first above
wrtten.
lsi Anita L. Swanon
Nota Public
Notary Public
Anita L. Swanson
State of Washington
My Commission Expires
June l7, 2013
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Forty-Seventh Supplemental Indentue Page 14 of26
STATEOFNEWYORK )
) ss.:
COUNY OF NEW
YORK
On the 25th day of November, 2009, before me personally appeared Louis Piscitelli, to me known to be a Vice
President of CITIBAN, N.A., one of the corporations that executed the within and foregoing instrment, and acknowledged
said instrment to be the free and voluntar act and deed of said Corporation for the uses and purposes therein mentioned and
on oath stated that he was authorized to execute said instrent and that the seal affixed is the corporate seal of said
Corporation.
On the 25th day of November, 2009, before me, a Nota Public in and for the State and County aforesaid,
personally appeared Louis Piscitelli, known to me to be a Vice President of CITIBAN, N.A., one of the corporations that
executed the within and foregoing instrent and acknowledged to me that such Corporation executed the same.
IN WITNSS WHEREOF, I have hereunto set my hand and affixed my offcial seal the day and year first above
wrtten.
lsI Zenaida Santiago
Nota Public
ZENAIA SANIAGO
NOTARY PUBLIC - STATE OF NEW YORK
No.01SA6152564
Qualified in Kings County
Commission Expires September 18, 2010
14
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Forty-Seventh Supplemental Indenture Page 15 of26
EXHffITA
MORTGAGE, SUPPLEMENTAL INDENTURS
AND SERIES OF BONDS
Firt October I, 1952 2 33/4% Series due 1982 30,000,000 None
Third December I 1955 None
Fifth 4 47/8% Series due 1987 30,000000 None
Seventh l5,000 000 None
Ninth Januar I 1960 8 53/8% Series due 1990 10000000 None
Eleventh March 1,1965 LO 45/8% Series due 1995 10000000 None
1 I 6 % Series due 1996 None
13 77/8% Series due 2003 None
Seventeenth November I 1976 15 83/4% Series due 2006 None
Nineteenth Janu l, 198 I 16 l4 1/8% Series due 1991 None
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Fort-Seventh Supplemental Indenture Page 16 of26
Thirtieth May 1,2002 28 Collateral Series due 2003 225 000 None
Thirty-second S tember 1, 2003 30 6.125% Series due 2013 45000000 45000,000
Thiry-fourt November I, 2004 32 5.45% Series due 2019 90,000000 90000,000
Thiry-sixth December l, 2004 34 Collateral Series 2004B Collateral Series 2004C 66,700,000 None
35 l7,000,000 None
Thiry-eighth May 1,2005 Collateral Series 2005B Collateral Series 2005C
A-2
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Fôrt-Seventh Supplemental Indenture Page 17 of26
-third November 1,2008 43
December 1, 2008 45
Collateral Series 2008A
Collateral Series 2008B 17,000000 17000,000
(I) To be retired in connection with the delivery of
$75,000,000 of First Mortgage Bonds, Collateral Series 2009A.
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Fort-Seventh Supplemental Indentue Page 18 of26
EXHffITB
FILING AND RECORDING OF
FORTY-SIXTH SUPPLEMENTAL INDENTUR
FILING IN STATE OFFICES
Financing Statement
State Offce of Date Document Number
Washington Secreta of State 1112/09 2009-308-8648-8
Idaho Secreta of State 10/22/09 B2009- I 70 11 23-2
Montana Secreta of State 1112/09 576463162
Oregon Secreta of State 1112/09 8391683
RECORDING IN COUNTY OFFICES
Financing
Statement
Document
County Offce of Real Estate Mortage Records Number
Document
Date Number Book Page
Washington
Adams Auditor 10/19109 293478 N/A N/A N/A
Asotin Auditor 10/19109 315703 N/A N/A N/A
Benton Auditor 10/19109 2009-03 I 124 N/A N/A N/A
Douglas Auditor 10/20109 3138804 N/A N/A N/A
Ferr Auditor 1O/L9109 275520 N/A N/A N/A
Franin Auditor 10/20100 1741417 N/A N/A N/A
Gareld Auditor 1O/L9109 20090640 N/A N/A N/A
Grant Auditor 10/19109 1262094 N/A N/A N/A
Klickitat Auditor 1O/L9109 1085521 N/A N/A N/A
Lewis Auditor LO/19109 3335325 N/A N/A N/A
Lincoln Auditor LO/21109 20090453564 100 l507 N/A
Pend Oreile Auditor 10120109 20090303365 N/A N/A N/A
Skamana Auditor 10/21109 2009174141 N/A N/A N/A
Spokane Auditor 10/19109 5843586 N/A N/A N/A
Stevens Auditor 10/19109 20090009286 N/A N/A N/A
Thurston Auditor 10/20109 4116877 N/A N/A N/A
Whitman Auditor 10/19109 695848 N/A N/A N/A
Idao
Benewah Recorder 10/19109 255402 N/A N/A N/A
Bonner Recorder L0120109 781627 N/A N/A N/A
Bounda Recorder 10/19109 244260 N/A N/A N/A
Clearwater Recorder 10/19109 212839 N/A N/A N/A
Idaho Recorder LO/19109 469253 N/A N/A N/A
Kootenai Recorder 1O/L9109 2236888000 N/A N/A N/A
Latah Recorder LO/19109 53319l N/A N/A N/A
Lewis Recorder LO/19109 137817 N/A N/A N/A
B-l
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Fort-Seventh Supplemental Indenture Page 19 of26
RECORDING IN COUNTY OFFICES
Financing
Statement
Document
County Omceof Real Estate Mortage Records Number
Document
Date Number Book Page
NezPerce Recorder 10/19109 774593 N/A N/A N/A
Shoshone Recorder 10/19109 454215 N/A N/A N/A
Montana Clerk &
BigHorn Recorder 10/20109 341905 107 686 N/A
Broadwater Clerk &
Recorder 10/19109 162160 l26 444 N/A
Golden Valley Clerk &
Recorder 10/19109 8013l M 14548 N/A
Meagher Clerk &
Recorder 10/21/09 137182 N/A N/A N/A
Mineral Clerk &
Recorder 10/19109 105721 N/A N/A N/A
Rosebud Clerk &
Recorder 10/20109 105965 127 335 N/A
Sanders Clerk &
Recorder 10/19109 67467 N/A N/A N/A
Stillwater Clerk &
Recorder 10/19109 342119 N/A N/A N/A
Treasure Clerk &
Recorder 10/19109 80956 19 273 N/A
Wheatland Clerk &
Recorder 10/19109 105989 M 21285 N/A
Yellowstone Clerk &
Recorder 1O/L9109 3527991 N/A N/A N/A
Oregon
Douglas Recorder LO/27/09 2009-0186l0 N/A N/A N/A
Jackson Recorder LO/29109 2009-40365 N/A N/A N/A
Josephine Recorder 10/22/09 2009-0 I 652 I N/A N/A N/A
Klamath Recorder 10/27/09 2009-013870 N/A N/A N/A
Morrow Recorder LO/26109 2009-24939 N/A N/A N/A
Union Recorder 10/26109 20093917 N/A N/A N/A
Wallowa Recorder LO/29109 62673 N/A N/A N/A
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Forty-Seventh Supplemental Indentue Page 20 of26
EXHffITC
PROPERTY ADDITIONS
First
THE ADDITIONAL ELECTRIC SUBSTATIONS AND SUBSTATION SITES OF THE COMPANY, in the States of Washington and
Idao, including all buildings, strctues, towers, poles, equipment, appliances and devices for transforming, converting and
distributing electrc energy, and the lands of the Company on which the same are situated and all of the Company's real
estate and interests therein, machinery, equipment, appliances, devices, appurenances and supplies, franchises, permits and
other rights and other propert forming a par of said substations or any of them, or used or enjoyed or capable of being used
or enjoyed in connection with any thereof, including, but not limited to, the following situated in the State ofIdao, to wit:
I. Lewis County, Idaho: "Nez Perce 1 15kV Substation"; Propert No. ID-3L-032; Grantor: Veta L. Carlson Trust.;
Portion ofNW/4 NW/4, located in Section 32, Township 34 Nort, Range 2, East, B.M..
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Forty-Seventh Supplemental Indenture Page 21 of26
EXHffITD
(Form of Bond)
This bond is non-transferable, except to a successor
Administrative Agent under the Credit Agreement referred to herein).
AVISTA CORPORATION
First Mortgage Bond,
Collateral Series 2009A
REGISTERED REGISTERED
NO.$75,000,000
AVISTA CORPORATION, a corporation of the State of Washington (hereinafter called the Company), for value
received, hereby promises to pay to
, as Administrative Agent under the Credit Agreement hereinafter referred to or registered assigns on April 5, 201 I (or such
later date to which such Stated Matuty shall have been extended as provided below)
DOLLARS
and to pay the registered owner hereof interest thereon from November , 2009 in arrears on
March 3 I, June 30, September 30 and December 3 1 of each year, commencing December 3 I, 2008 (each such date being
hereinafter called an "Interest Payment Date") and at Maturity (as hereinafter defined), at the rate of eight per centu
(8%) per anum computed as provided in the Fort-seventh Supplemental Indenture hereinafter referred to, until the
Company's obligation with respect to the payment of such principal shall have been discharged. The principal of and
premium, if any, and interest on this bond payable at Matuty shall be payable upon presentation hereof at the office or
agency of the Company in the Borough of Manattan, The City of New York, in such coin or curency of the United States of
America as at the time of payment is legal tender for public and private debts. The interest on this bond (other than interest
payable at Maturity) shall be paid directly to the registered owner hereof. Interest payable at Maturity shall be paid to the
person to whom pricipal shall be paid. As used herein, the term "Maturity" shall mean the date on which the principal of ths
bond becomes due and payable, whether at stated maturity, upon redemption or acceleration, or otherwise.
This bond is one of an issue of bonds of the Company issuable in series and is one of a series known as its First
Mortgage Bonds, Collateral Series 2009A, all bonds of all such series being issued and issuable under and equally secured
(except insofar as any sing or other fund, established in accordance with the provisions of the Mortgage hereinafter
mentioned, may afford additional security for the bonds of any paricular series) by a Mortgage and Deed of Trust, dated as
of June l, 1939, executed by the Company (formerly known as The Washigton
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Forty-Seventh Supplemental Indentue Page 22 of26
Water Power Company) to City Ban Farers Trust Company and Ralph E. Morton, as Trustees (Citibank, N.A., successor
Trustee to both said Trustees). Such mortgage and deed of trt has been amended and supplemented by varous
supplemental indentures, including the Fort-seventh Supplemental Indentue, dated as of November l, 2009 (the "Forty-
seventh Supplemental Indenture") and, as so amended and supplemented, is herein called the "Mortgage" . Reference is made
to the Mortgage for a description of the propert mortgaged and pledged, the natue and extent of the security, the rights of
the holders of the bonds and of the Trustee in respect thereof, the duties and imunties of the Trustee and the terms and
conditions upon which the bonds are and are to be secured and the circumstaces under which additional bonds may be
issued. By its acceptace of this bond, the holder hereof is deemed to have consented and agreed to all of the terms and
provisions of the Mortgage.
The Mortgage may be modified or altered by afinative vote of the holders of at least 60% in principal amount of
the bonds outstading under the Mortgage, considered as one class, or, if the rights of one or more, but less than all, series of
bonds then outstanding are to be affected, then such modification or alteration may be effected with the affinative vote only
of 60% in principal amount of the bonds outstading of the series so to be affected, considered as one class, and, fuermore,
for limited puroses, the Mortgage may be modified or altered without any consent or other action of holders of any series of
bonds. No modification or alteration shall, however, permit an extension of the Matuity of the pricipal of, or interest on,
this bond or a reduction in such pricipal or the rate of interest hereon or any other modification in the terms of payment of
such principal or interest or the creation of any lien equal or prior to the lien of the Mortgage or deprive the holder of a lien
on the mortgaged and pledged property without the consent of the holder hereof.
The bonds of this series are not redeemable, in whole or in par, at the option of the Company.
The bonds of ths series have been issued and delivered to Union Ban of Californa, N.A., as Administrative
Agent under the Credit Agreement (as such terms are defined in the Fort-seventh Supplemental Indentue) in order to
provide the benefit of the lien of the Mortgage as security for the obligation of the Company under the Credit Agreement to
pay the Obligations (as so defmed), to the extent and subject to the limitations set fort below.
Upon the earliest of (A) the occurence of an Event of Default under the Credit Agreement, and furter upon the
condition that, in accordance with the terms of the Credit Agreement, the Commitments (as defmed in the Forty-seventh
Supplemental Indenture) shall have been or shall have terminated and any Loans (as so defined) outstanding shall have been
declared to be or shall have otherwise become due and payable imediately and the Adminstrative Agent shall have
delivered to the Company a notice demanding redemption of the bonds of this series which notice states that it is being
delivered pursuant to Aricle VII of the Credit Agreement, (B) the occurrence of an Event of Default under clause (g) or
(h) of Aricle VII of the Credit Agreement, and (C) the Stated Matuty (as defmed below), then all bonds of this series shall
be redeemed or paid immediately at the pricipal amount thereof plus accrued interest to the date of redemption or payment.
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Fort-Seventh Supplemental Indenture Page 23 of26
The obligation of the Company to pay the accrued interest on bonds of this series on any Interest Paym.ent Date
prior to Matuity (a) shall be deemed to have been satisfied and discharged in full in the event that all amounts then due in
respect of the Obligations shall have been paid or (b) shall be deemed to remain unsatisfied in an amount equal to the
aggregate amount then due in respect of the Obligations and remaining unpaid (not in excess, however, of the amount
otherwise then due in respect of interest on the bonds of this series).
The obligation of the Company to pay the pricipal of and accrued interest on bonds of this series at or after
Matuty (x) shall be deemed to have been satisfied and discharged in full in the event that all amounts then due in respect of
the Obligations shall have been paid or (y) shall be deemed to remain unsatisfied in an amount equal to the aggregate amount
then due in respect of the Obligations and remaining unpaid (not in excess, however, of the amount otherwise then due in
respect of principal of and accrued interest on the bonds of ths series).
As used herein, "Stated Maturity" means April 5, 2011 or such later date to which such date shall have been
extended as provided in the Fort-seventh Supplemental Indenture.
Anytg in this bond to the contrar notwithtading, if, at the time of the Matuty of the bonds of this series, the
stated aggregate pricipal amount of such bonds then outstanding shall exceed the aggregate Commitments, the aggregate
principal amount of such bonds shall be deemed to have been reduced by the amount of such excess.
The principal hereof may be declared or may become due prior to the stated matuty date on the conditions, in the
maner and at the time set forth in the Mortgage, upon the occurence of a Completed Default as in the Mortgage provided.
As provided in the Mortgage and subject to certin limitations therein set fort, ths bond or any portion of the
principal amount hereof wil be deemed to have been paid if there has been irevocably deposited with the Trustee moneys or
direct obligations of or obligations guaranteed by the United States of America, the principal of and interest on which when
due, and without regard to any reinvestment thereof, wil provide moneys which, together with moneys so deposited, wil be
suffcient to pay when due the pricipal of and premium, if any, and interest on this bond when due.
The Mortgage contains terms, provisions and conditions relating to the consolidation or merger of the Company
with or into, and the conveyance or other transfer, or lease, of assets to, another corporation and to the assumption by such
other corporation, in certain circumstaces, of all of the obligations of the Company under the Mortgage and on the bonds
secured thereby.
This bond is non-transferable except as required to effect transfer to any successor administrative agent under the
Credit Agreement, any such transfer to be made at the office or agency of the Company in the Borough of Manatta, The
City of New York, upon surender and cancellation of this bond, together with a written instrment of transfer whenever
required by the Company duly executed by the registered owner or by its duly authorized attorney, and, thereupon, a new
fully registered bond of the same series for a like pricipal amount wil be issued to the transferee in exchange herefor as
provided in the Mortgage. The Company and the Trustee may deem and treat the person in whose name this bond is
registered as the absolute owner hereof for the purose of receiving payment and for all other purposes.
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Forty-Seventh Supplemental Indentue Page 24 of26
In the maner prescribed in the Mortgage, any bonds of this series, upon surender thereof for cancellation at the
offce or agency of the Company in the Borough of Manatt, The City of New York, are exchangeable for a like aggregate
principal amount of bonds of the same series of other authoried denominations.
No recourse shall be had for the payment of the principal of or interest on ths bond against any incorporator or any
past, present or future subscriber to the capital stock, stockholder, offcer or director of the Company or of any predecessor or
successor corporation, as such, either directly or though the Company or any predecessor or successor corporation, under
any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, all such liability of
incorporators, subscribers, stockholders, officers and directors being released by the holder or owner hereof by the acceptace
of this bond and being likewise waived and released by the terms of the Mortgage.
This bond shall not become obligatory until Citiban, N.A., the Trutee under the Mortgage, or its successor
thereunder, shall have signed the form of certficate endorsed hereon.
IN WITNESS WHEREOF, AVISTA CORPORATION has caused ths bond to be signed in its corporate name
by its President or one of its Vice Presidents by his signatue or a facsimile thereof, and its corporate seal to be impressed or
imprinted hereon and attested by its Corporate Secreta or one of its Assistant Corporate Secretares by his signature or a
facsimile thereof.
Dated:
AVISTA CORPORATION
By:
Name: Jason R. Thackston
Title: Vice President
ATTEST:
D-4
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Forty-Seventh Supplemental Indenture Page 25 of26
TRUSTEE'S CERTIFICATE
This bond is one of the bonds, of the series herein designated, described or provided for in the within-mentioned
Mortgage.
CITIBAN, N.A.
Trustee
By:
Authorized Signatory
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Forty-Seventh Supplemental Indentue Page 26 of26
ASSIGNMENT FORM
FOR V ALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
(please insert social securty or other identifying number of assignee)
(please prit or tyewrte name and address of assignee)
the within bond of AVISTA CORPORATION and does hereby irrevocably constitute and appoint , Attorney, to
transfer said bond on the books of the within-mentioned Company, wil full power of substituion in the premises.
Dated:
Notice: The signatue to this assignment must correspond with the name as wrtten upon the
face of the bond in every paricular without alteration or enlargement or any change
whatsoever.
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Credit Agreement Page 1 of85
Âvu-U-08-O~
EX-lO.l 3 dexlOL.htm CREDIT AGREEMENT
Exhibit 10.1
CREDIT AGREEM
dated as of November 25, 2009
among
~¿; ~ ~1:~. ~ ~¿.'O C" \.'~, :. ~cPO )t ~"~~(\~-e""~
A VISTA CORPORATION,
THE BANS PARTY HERETO,
JPMORGAN CHASE BAN, N.A. and UBS SECURIES LLC,
as Co-Documentation Agents,
WELLS FARGO SECURTIS, LLC,
as Syndication Agent,
and
UNON BAN, N.A.,
as Adminstrtive Agent
UNON BANK, N.A. and WELLS FARGO SECURTIS, LLC,
as Co-Lead Arangers and Co-Book Managers
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Credit Agreement Page 2 of85
TABLE OF CONTTS
ARTICLE I DEFINONS
Section 1.01 Dermed Term
Section 1.02 Term Generally
Page
1
1
13
Commitments
Loan
Notice of Borrowings
Repayment of Loan; Evidence of Debt
Fees
Interest on Loan
Default Interest
Alternte Rate of Interest
Termtion, Reduction and Increase in Commtments
Prepayment
Reserve Requirements; Chage in Circustaces
Chage in Legality
Indemnity
Pro Rata Treatment
Sharg of Setoffs
Payments
Taxes
Termination or Assignment of Commitments under Certin Circumstaces
Extension of Expiration Date
14
14
14
16
16
l7
17
18
l8
18
20
20
2l
22
22
23
23
23
26
27
ARTICLE IT TH CREDITS
Section 2.01
Section 2.02
Section 2.03
Section 2.04
Section 2.05
Section 2.06
Section 2.07
Section 2.08
Section 2.09
Section 2. lO
Section 2. 1 1
Section 2.l2
Section 2.13
Section 2.14
Section 2.l5
Section 2.16
Section 2. 1 7
Section 2.l8
Section 2. 19
ARTICLE ni REPRESENTATIONS AN WARES
Section 3.01 Organzation; Powers
Section 3.02 Authoriation
Section 3.03 Enforceabilty
Section 3.04 Governenta Approvals
Section 3.05 Financial Statements
Section 3.06 No Material Adverse Chage
Section 3.07 Litigation; Compliance with Laws
Section 3.08 Federal Reserve Regulations
Section 3.09 Investment Company Act
Section 3.l0 No Material Misstatements
Section 3. I 1 Employee Benefit Plans
Section 3.12 Environmental and Safety Matters
Section 3.13 Signicant Subsidiares
28
28
29
29
29
29
30
30
30
31
31
31
31
32
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Credit Agreement Page 3 of85
ARTICLE IV CONDITIONS TO BORROWIGS AN EXTENSIONS
Section 4.01 All Borrowigs
Section 4.02 First Borrowig
Section 4.03 Extenions
32
32
32
34
ARTICLE V AFFIRTI COVENANS
Section 5.01 Existence; Businesses and Properties
Section 5.02 Inurance
Section 5.03 Taxes and Obligations
Section 5.04 Fincial Statements, Report, etc.
Section 5.05 Litigation and Other Notices
Section 5.06 ERISA
Section 5.07 Maintaining Records; Access to Propertes and Inspections
Section 5.08 Use of Proceeds
35
35
35
36
36
37
37
38
38
ARTICLE VI NEGATIE COVENANTS
Section 6.01 Liens
Section 6.02 Sale-Leaseback Traactions
Section 6.03 Mergers, Consolidations and Acquisitions
Section 6.04 Disposition of Assets
Section 6.05 Consolidated Total Debt to Conslidated Total Capitalization Ratio
Section 6.06 Avista Utilities Interest-Coverage Ratio
Section 6.07 Public Utility Regulatory Borrowing Limits
Section 6.08 Investments
38
38
41
4l
42
43
43
43
43
ARTICLE VII EVES OF DEFAULT 43
ARTICLE VIII RELEASE OF COLLATERA
Section 8.01 Release upon Commitment Reduction
Section 8.02 Release upon Termination and Repayment
46
46
46
ARTICLE IX THE ADMINSTRTI AGEN
Section 9.01 Appointment and Powers
Section 9.02 Limitation on Liabilty
Section 9.03 Other Tranactions with Borrower
Section 9.04 Reimburement; Indemnfication
Section 9.05 Absence of Reliance
Section 9.06 Resignation of Adminstrative Agent
Section 9.07 Syndication Agent and Co-Documentation Agents
Section 9.08 Replacement of Certn Ban
46
46
47
48
48
48
48
49
49
ARTICLE X MISCELLANOUS
Section LO.OI Notices
Section 10.02 Surval of Agreement
Section 10.03 Binding Effect
49
49
50
50
ii
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Section lO.04
Section 10.05
Section 10.06
Section lO.07
Section 10.08
Section 10.09
Section 10.10
Section 10.11
Section 10.12
Section 10.13
Section 10.14
Section 10.15
Section 10.16
Exhibit A
ExhbitB
ExhbitC
ExhbitD
Exhbit E
Successors and Assign
Expenses; Indemnty, Damage Waiver
Right of Setoff
Applicable Law
Waivers; Amendment
Interest Rate Limitation
Entie Agreement
Waiver of Jur Trial
Severabilty
Counterpar
Headings
Jursdiction; Consent to Servce of Process
USA Patrot Act Notifcation
51
53
54
54
55
55
55
56
56
56
56
56
57
Form of Note
Form of Assignent and Assumption
Form of Admistrative Questionnaire
Form of Commitment Increase Supplement
Form of Commitment Extension Supplement
Schedule 2.01 Names, Commitments and Addresses of Intial Ban
Schedule 3. 1 3 Significant Subsidiares
Schedule 4.02(a)(ii) Required Governenta Approvals
Schedule 6.01 Existig Securd Indebtedess
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Credit Agreement Page 5 of85
CREDIT AGREEMENT, dated as of November 25,2009, among A VISTA CORPORATION, a Washigton
corporation, the Ban listed in Schedule 2.0 I, JPMORGAN CHASE BAN, N.A and UBS SECURTIES LLC, as Co-
Documentation Agents, WELLS FARGO SECURIES, LLC, as Syndication Agent, and UNON BAN, N.A., as
Adminstrative Agent.
The Borrower ha requested that the Ban agree to make loans on a revolvig credit basis durng the period
commencing with the date hereof and endig on the Expiration Date (as defmed herein) in an aggregate pricipal amount not
in excess of $75,000,000 at any time outstadig (subject to increase at the election of the Borrower by an aggregate amount
not to exceed $25,000,000, upon satisfaction of certin conditions as hereinafter provided). The proceeds of such borrowings
are to be used for general corporate puroses.
In consideration of the mutual covenants and agreements contained herein, the paries agree as follows:
ARTICLE I
DEFINTIONS
Section 1.01 Defied Terms. As used in ths Agreement, the following terms sha have the meangs specified below:
"ABR" when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are bearg interest at a rate determined by reference to the Alternate Base Rate.
"ABR Borrowing' shall mean a Borrowig comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearg interest at a rate determed by reference to the Alternate Base Rate in
accordance with the provisions of Aricle II.
"Administratve Agent' shall mean Union Ban as adminstrtive agent for the Ban under the Loan Documents,
and any successor Adminstrative Agent appointed puruant to Section 9.06.
"Administrative Questionnaire" shall mean an Adminstrtive Questionnaire in the form of Exhibit C.
"Affliate" shall mean, when used with respect to a specified person, another person that directly, or indirectly
though one or more intermediares, Controls or is Controlled by or is under common Control with the person specified.
"Agreement' shall mean this Agreement, includig all exhbits and schedules hereto.
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"Alternate Base Rate" shall mean, for any day, a rate per anum (rounded upwards, if necessar, to the nearest
l/16 of 1 %) equa to the greatest of (a) the Reference Rate in effect on such day, (b) the sum of (i) the Federal Funds
Effective Rate in effect for such day plus (ii) 1/2 of 1 % and (c) the Eurodollar Rate for an Interest Period of 1 month
commencing on such day. If for any reaon the Admintrative Agent shall have determined (which determination shall be
conclusive absent manfest error) that it is unable to ascert the Federal Funds Effective Rate for any reason, the Alternate
Base Rate shall be determned without regard to clause (b) of the first sentence of ths defition unti the circumstaces
givig rise to such inabilty no longer exist. Any change in the Alternate Base Rate due to a change in the Reference Rate
shall be effective on the date such change in the Reference Rate is adopted.
"Applicable Rate" shall mean, on any date with respect to the Facility Fee, Eurodollar Loans or ABR Loan, the
rate per anum set fort in the following table in the "Facilty Fee," "Eurodollar Margin" or "ABR Margin" column, as
applicable, for the Pricing Level in effect for such date.
For purposes of determing which Pricing Level is applicable in the foregoing table the following rules will apply:
"Pricing Level 1" wil be applicable at any date if, at such date, the Senior Debt Ratig is Fift Lowest Investment Grade
or higher;
"Pricing Level II" wil be applicable at any date if, at such date, the Senior Debt Ratig is Four Lowest Investment
Grade and Pricing Level I is not applicable;
"Pricing Level II" wil be applicable at any date if, at such date, the Senior Debt Ratig is Thd Lowest Investment
Grade and neither Pricing Level I nor Pricing Level II is applicable;
"Pricing Level IV" wil be applicable at any date if, at such date, the Senor Debt Rating is Second Lowest Investment
Grade and none of Pricing Level I, Pricing Level II or Pricing Level II is applicable;
"Pricing Level V" wil be applicable at any date if, at such date, the Senior Debt Rating is Lowest Investment Grade and
none of Pricing Level I, Pricing Level II, Pricing Level II or Pricing Level IV is applicable;
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"Pricing Level VI" wil be applicable at any date if, at such date, the Senior Debt Ratig is Highest Non-Investment
Grade or lower.
In the event that the Borrwer's Senior Debt Ratigs ar split by one level, the higher ratig will apply. In the event the
ratigs are split by more than one level, the level that is one level below the higher ratig wil apply.
"Assignment and Assumption" shall mean an assignment and assuption agreement entered into by a Ban and an
assignee in the form of Exbit B or such other form as shal be approved by the Administrative Agent.
"Attibutable Debt' shall mean, in connection with any Sale-Leaseback, the present value (discounted in
accordace with GAA at the discount rate implied in the leae) of the obligations of the lessee for rental payments durg
the term of the lease.
"Avaüabüity Period' shall mean the period from and includig the date of ths Agreement to but excludig the
Expiration Date.
"A visa Utilities" mean the operatig division of the Borrower which represents all the regulated utility operations
of the Borrower that are responsible for retail electrc and natual gas distrbution, electrc transmission services and electrc
generation and production.
"A vista Utiities EBITDA" mean, for any period, (a) Avista Utiities Net Income for such period plus (b) in each
case, without duplication and to the extent deducted in computig Avista Utilities Net Income for such period, the sum for
such period of (i) income ta expense, (ii) interest expense, (iii) depreciation and amortzation expense, (iv) any extrordinar
or non-recurg losses and (v) other non-cash items reducing Avista Utilities Net Income for such period, minus (c) in each
case, without duplication and to the extent added in computig Avista Utilities Net Income for such period, the sum offor
such period of (i) any extraordinar or non-recurg gais and (ii) other non-cash items increasing Avista Utilities Net
Income for such period, all as determined in accordace with GAA.
"Avista Utilities Interest Expense" means, for any period, interest expense of Avista Utiities for such period
determined in accordace with GAA.
"Avisa Utilities Net Income" means, for any period, the net income or loss of Avista Utilties for such period
determned in accordace with GAA.
"Ban/t' shall mea (a) any person listed on Schedule 2.01 and (b) any person that ha been assigned any or all of
the rights or obligations of a Ban puruant to Section 10.04.
"Board' shall mean the Board of Govemors of the Federal Reserve System of the United States.
"Bond Delivery Agreemenf' shall mean the Bond Delivery Agreement, dated as of November 25,2009, between
the Borrower and the Administrative Agent.
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"Borrower" shall mean Avista Corporation, a Washigton corporation, and its successors and assigns.
"Borrowing' shall mean a group of Loan of the same Type made on the same date and, in the cas of Eurodollar
Loan, as to which a single Interest Period is in effect.
"Business Day" shall mean any day (other than a day which is a Satuday, Sunday or legal holiday in the State of
Californa or the State of New York) on which ban are open for business in Los Angeles and New York City; provided that
when used in connection with a Eurodollar Loan the term "Business Day" shall also exclude any day on which ban ar not
open for dealgs in deposits in dollar in the London interban 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 arangement conveying the right to use) real or personal propert, or a combintion thereof,
which obligations are required to be classifed and accounted for as capital leases on a balance sheet of such person under
GAA and, for the puroses of ths Agreement, the amount of such obligations at any tie shall be the capitaized amountthereof at such tie determined in accordace with GAA. - l
"Change in Controf'means (a) the acquisition of ownership, diectly or indirectly, beneficialy or of record, by
any person or group (with the meang of the Securties Exchage Act of 1934 and the rules of the Securties and Exchange
Commission thereunder as in effect on the date hereof), of shares representig more than 30% of the aggregate ordinar
votig power represented by the issued and outstadig capita 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, tht no event described in clause
(a) or clause (b) shall constitute a "Change in Control" if, imediately aftr givig effect to the transaction that would
otherwise constitute a Change in Control, the Senior Debt Ratig assigned by two nationally recognied credit ratig
agencies is equal to or higher than Lowest Investment Grade.
"Closing Date" shall mean the date on which the conditions precedent set fort in Sections 4.01 and 4.02 are first
satisfied or waived.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be amended frm tie to time.
"Commitment' shall mean, with respect to each Ban (a) (i) in the case ofa Ban listed on Schedule 2.0l, the
amount set fort opposite such Ban's nae under the headig "Commitment" on such Schedule and (ii) in the case of a
Ban that becomes a Ban pursuant to an assignment under Section 10.04, the amount specifed as assigned to such Ban in
the Assignment and Assumption pursuant to which such Ban becomes a Ban, in each case, as the same may be reduced
from time to time puruant to Section 2.09(b), increased from tie to time puruant to Section 2.09(c), or reduced or
increased from time to time pursuat to assignments in accordace with Section 10.04, or (b) as the context may requie, the
obligation of such Ban to make Loans in an aggregate unpaid pricipal amount not exceeding such amount.
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"Commitment Extension Supplement' shall have the meaning assigned to such term in Section 2. 1 9(e).
"Consolidated Total Capitalization" on any date means the sum, without duplication, of the following with respect
to the Borrower and its consolidated subsidiares: (a) tota capitalization as of such date, as determined in accordance with
GAA, (b) the curent portion of liabilties which as of such date would be classified in whole or par as long-term debt in
accordance with GAA (it being understood that the noncurent porton of such liabilties is included in the total
capitaization referred to in clause (a)), (c) all obligations as lessee which, in accordace with GAA, are capitalized as
liabilties (including the curent portion thereof), and (d) all other liabilties which would be classified as short-term debt in
accordance with GAA.
"Consolidated Total Debt' on any date mean the sum, without duplication, of the following with respect to the
Borrower and its consolidated subsidiares: (a) all liabilties which as of such date would be classified in whole or in par as
long-term debt in accordance with GAA (includig the current porton thereof), (b) all obligations as lessee which, in
accordace with GAA, are capitalized as liabilties (including the current portion thereof), (c) all other liabilties which
would be classified as short-term debt in accordace with GAA, and (d) all Guartees of or by the Borrower.
"Controf' shall mean the possession, directly or indiectly, of the power to diect or cause the diection of the
management or policies of a person, whether though the ownership of voting securties, by contract or otherwise, and
"Controlling" and "Controlled" shall have meangs correlative thereto.
"Current Expiration Date" shall have the meang assigned to such term in Section 2.19(a).
"Default' shall mean any event or condition which upon notice, lapse of tie or both would constitute an Event of
Default.
"Defaulting BanK' shall mean any Ban tht (a) fails to make a payment or provide funds to the Admistrative
Agent or the Borrower as required hereunder or otherwise fails to perfor an obligation thereof under any Loan Document,
and such failure is not cured with one Business Day, or (b) is the subject of a proceedig or event of any tye described in
pargraph (g) or (h) of Arcle VI.
"dollars" or "$" shall mean lawfl money of the United States of Amerca.
"Equity Interests" shall mean shaes of stock, parership interests, membership interests in a limited liabilty
company, beneficial interests in a trst or other equity ownership interests in a person, and all options, warants or other
rights to acquire any such equity ownership interests in a person.
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"ERISA" sha mean the Employee Retiment Income Securty Act of 1974, as the same may be amended from
time to tie.
"ERISA Affiiate" shal 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 Loan
comprising such Borrowig, are bearg interest at a rate deteed by reference to the Eurodollar Rate.
"Eurodollar Borrowing" shall mean a Borrowig comprised of Eurodollar Loan.
"Eurodollar Loan" shall mean any Loan bearg interest at a rate determined by reference to the Eurodollar Rate
in accordace with the provisions of Arcle II.
"Eurodollar Rate" shall mean for any Interest Period, the rate of interest per anum (rounded upwards, if
necessar, to the nearest 1/100 of 1 %) equal to (a) the rate appearg on Bloomberg screen BBAM (or any successor thereto)
as the London interban offered rate for deposits in dollar at approximately 1 1:00 a.m. (London tie) two Business Days
prior to the first day of such Interest Period for a term comparble to such Interest Period (provided, however, if more than
one such rate is specified on Bloomberg scree BBAM, the applicable rate shall be the arthetic mean of all such rates),
multiplied by (b) the Statutory Reserve Rate. If, for any reason, the rate specifed in clause (a) above is not available for any
Interest Period, there shal be substituted for such rate, for such Interest Period, the rate per anum (rounded upwards, if
necessar, to the nearest 1/ 1 00 of 1 %) equal to the rate determined by the Admstrative Agent to be the offered rate on
another page or service that displays an average British Baners Association Interest Settlement Rate for deposits in dollar
(for delivery on the fist day of such Interest Period) with a term equivalent to such Interest Period, determined as of
approximately I 1 :00 a.m. (London tie) two Business Days prior to the first day of such Interest Period. In the event that the
rates referenced in clause (a) above and in the preceding sentence are not available, there shall be substitute for the rate
specified in claus.e (a) above the rate per anum (rounded upwards, if necessar, to the nearst l/lOO of 1%) equal to the rate
that would be offered to firt-class ban in the London interban market by Union Ban for deposits (for delivery on the
first day of the relevant Interest Period) in dollar of amounts in same-day fuds comparable to the pricipal amount of the
applicable Loan by Union Ban for which the Eurodollar Rate is then being determined with matuties comparable to such
Interest Period as of approximately 11 :00 a.m. (London tie) two Business Days prior to the fit day of such Interest Period.
"Event of Default' shall have the meang assigned to such term in Arcle VII.
"Existing Commitments" shall have the meang assigned to such term in Section 2.19(c).
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"Expiratin Date" shall mean April 5, 2011 or any later date to which such date (or any subsequent Expiration
Date) shall have been extended pursuant to Section 2.19.
"Facility Fee" shall have the meang assigned to such ter in Section 2.05(a).
"Federal Funds Effective Rate" shall mean, for any Business Day, the weighted average of the rates on overnight
Federal fuds tranactions with members of the Federal Reserve System aranged by Fedra funds brokers, as reported on
such Business Day by the Federal Reserve Ban 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 tranactions received by the Adminstrative Agent from thee Federal
fuds brokers of recognied stadig selected by it.
"Fees" shall mean the Facilty Fee and the other fees referrd to in Section 2.05.
"Fifh Lowest Investment Grade" shall mean that the Senior Debt Ratig assigned to the applicable Indebtedness
of the Borrower is a ratig which, as reasonably determined by the Administrtive Agent, would be the ratig grated by the
applicable credit-ratig agency which is generally treated as "investment grade" in the ratigs regime of that credit-rating
agency and is higher than Fourt Lowest Investment Grade.
"Financial Offcer" of any corporation shall mean the chief fincial offcer or treasurer of such corporation.
"Financing Subsidiary" shall mean any Subsidiar of the Borrower created specifically and solely for the purse
of providing fmancing directly to the Borrower (and no other Subsidiar of the Borrower or other person) though the
issuance by such Subsidiar of debt or equity securties.
"First Mortgage" shall mean the Mortgage and Deed of Trust dated as of June I, 1939, made by the Borrower in
favor ofCitiban N.A., as successor trstee, as the same ha been amended, modfied or supplemented to date and as the
same may be fuer amended, modified or supplemented from time to time hereafr.
"First Mortgage Bond' shall mean (a) a first mortgage bond of the Fort-seventh Series issued to the
Admstrative Agent on the Closing Date under a supplementa indentu to the Firt Mortgage, in a pricipal amount equal
to the tota Commitments on the date of execution and delivery of ths Agreement, and/or (b) any first mortgage bond issued
under a supplemental indenture to the First Mortgage in addition to, or in substitution for, a first mortgage bond previously
delivered to the Adminstrative Agent pursuat to this Agreement, in each case in connection with a reduction or increase in
the total Commitments pursuant to Section 2.09(b) or (c) or an extension of the Expiration Date pursuant to Section 2.19.
"Fourt Lowest Investment Grade" shall mean that the Senior Debt Ratig assigned to the applicable Indebtedness
of the Borrower is a ratig which, as reasonably determined by the Administrative Agent, would be the ratig grate by the
applicable credit-rating agency which is generally treated as "investment grade" in the ratigs regime of that credit-rating
agency and is higher than Thd Lowest Investment Grade but lower than Fift Lowest Investment Grade.
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"GAA' shall mean generally accepted accountig priciples, applied on a consistent basis.
"Governmental Authorit" shal mean, whether domestic or foreign, any national, federa, state or local
governent, any political subdivision thereof, or any governental, quasi-governental, judicial, public or statutory agency,
authority, intrentality, body or entity, includig any central ban and any comparble authority.
"Guarantee" of or by any person shal mean any obligation, contigent or otherwse, of such person guaranteeing
or having the economic effect of guanteeing any Indebtedness of any other person (the "primary obligor") in any maner,
whether directly or indiectly, and includig any obligation of such person, diect or indirect, (a) to purchase or pay (or to
advance or supply fuds for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply fuds for
the purchase of) any securty for the payment of such Indebteess, (b) to purchase propert, securties or services for the
purose of assurg the owner of such Indebtedness of the payment of such Indebtedness or (c) to maintain workig capital,
equity capital or other financial statement condition or liquidity of the priar obligor so as to enable the primar obligor to
pay such Indebtedness; provided, however, that the term "Guarantee" shall not include endorsements for collection or
deposit, in either case in the ordinar coure of business.
"Highest Non-Investment Grade" shal mean that the Senior Debt Ratig assigned to the applicable Indebtedness
of the Borrower is a ratig which, as reasonably determined by the Adminstrative Agent, would be the highest ratig granted
by the applicable credit-rating agency which is generally not treated as "investment grade" in the ratigs regime of that
credit-ratig agency.
"Indebtedness" of any person shal mean, without duplication, (a) all obligations of such person for borrowed
money or with respect to deposits or advances of any kid, (b) all obligations of such person evidenced by bonds, debentues,
notes or similar instrments, (c) al obligations of such person upon which interest charges are customarly paid, (d) all
obligations of such person under conditional-sale or other title-retention agreeents relatig to propert or assets purchased
by such person, ( e) al obligations of such person issued or assumed as the deferred purchae price of propert or services
(other than trade payables incured in the ordiar coure of business), (f) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existig right, contigent or otherwise, to be secured by) any Lien on propert owned
or acquired by such person, whether or not the obligations secured thereby have been assumed, but limited, if such
obligations are without recoure to such person, to the lesser of the pricipal amount of such Indebtedness or the fair-market
value of such propert, (g) all Guaantees 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 curency exchange
agreements or other interest or exchage rate hedging arangements (the amount of any such obligation to be the amount that
would be payable upon the acceleration,
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termintion or liquidation thereof) and G) all obligations of such person as an account par in respect of letters of credt and
baners' acceptaces. The Indebtedness of any peron shall include the Indebtedness of any parership in which such person
is a general parer.
"Interest Payment Date" shal 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 par and (b) in addition, in the case of a Eurodollar Loan tht is par of a Eurodollar
Borrowing with an Interest Period of more than thee month' duration, each day that would have been an Interest Payment
Date had successive Interest Periods of thee month' duration been applicable to such Borrowing.
"Interest Period' shal 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 correspondig day, on the last day) in the calenda month that is 1,2,3 or 6 months thereaftr, and
(b) as to any ABR Borrowig, the period commencing on the date of such Borrowing and endig on the earlier of (i) the next
succeeding March 3 i, June 30, September 30 or December 3 i and (ii) the Expiration Date; provided, however, that if any
Interest Period would end on a day other th a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrwing only, such next succeeding Business Day would fall in the next
calenda month, in which case such Interest Period shall end on the next precedig Business Day. Interest shall accrue from
and includig the first day of an Interest Period to but excluding the last day of such Interest Period.
"Investmenf' 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 contrbution to the capital of any other
person, (d) any Guartee of the liabilities of any other person or ( e) any other investment in any other person.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of trst, lien, pledge, encumbrance, charge or
~ecurty 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 securties, any purchase option, call or similar right of
a thd par with respect to such securties.
"Loan Documents" shal mean ths Agreement, the Firt Mortgage Bond, the First Mortgage, the Supplemental
Indentue, the Bond Delivery Agreement, any Notes and the agreement between the Borrower and the Adminstrtive Agent
refered to in Section 2.05(b).
"Loans" shall mean loans made by the Ban to the Borrower puruant to ths Agreement.
"Lowest Investment Grade" shall mean that the Senor Debt Rating assigned to the applicable Indebtedness of the
Borrower is a ratig which, as reasonably determed by the Adminstrtive Agent, would be the lowest rating grated by the
applicable credit-rating agency which is generally treated as "investent grade" in the ratings regime of that credt-ratig
agency.
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"Margin Stoc/t' shall have the meang given such term under Reguation U.
"Material Adverse Effect' shal mean an effect on the business, assets, operations or fiancial condition of the
Borrower and the Subsidiares taen as a whole which could reasonably be expected to have a material adverse effect on the
creditwortess of the Borrower.
"Notes" shall mean any promissory notes of the Borrower, substatially in the form of Exhbit A, evidencing
Loan, as may be delivered pursuant to Section 2.04.
"PBGC' shall mean the Pension Benefit Guaranty Corporation referred to and dermed in ERISA.
"person" shall mean (a) a corporation, association, parership, trst, limited liabilty company, organation,
business or individual or (b) a Governenta Authority.
"Plan" shall mean any pension plan subject to the provisions of Title IV of ERISA or Section 412 of the Code
which is maintained for employees of the Borrower or any ERISA Afliate.
"Pro Rata Share" shall mean, with respect to any Ban the percentage of the tota Commitments reresented by
such Ban's Commitment. If the Commtments have terminated or expired, the Pro Rata Shares of the Ban shall be
determined based upon the Commitments most recently in effect.
"Reference Rate" shall mean the varable rate of interest per anum established by Union Ban from time to tie
as its "reference rate." Such "reference rate" is set by Union Ban as a general reference rate of interest for "prime"
commercial lending transactions, tang into account such factors as Union Ban may deem appropriate, it being understood
that many of Union Ban's commercial or other loans are priced in relation to such rate, that it is not necessarly the lowest or
best rate actually chaged to any customer and tht Union Ban may make varous commercial or other loan at rates of
interest having no relationship to such rate. For purses of th Agrement, each chage in the Reference Rate shall be
effective as of the openig of business on the date anounced as the effective date of any chage in such "reference rate."
"Regiter" shal have the meag given to such term in Section 10.04(c).
"Regulation D" shall mean Reguation D of the Board as from tie to tie in effect and all offcial rulings and
interpretations thereunder or thereof and shal include any successor or other regulation or official interpretation of the Board
relating to reserve requirements applicable to member ban of the Federal Reserve System.
"Regulaton U" shall mean Regulation U of the Board as from time to tie in effect and all offcial rulings and
interpretations thereunder or thereof.
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"Regulation )C' shall mean Reguation X of the Board as from time to tie in effect and al offcial rulings and
interretations thereunder or thereof.
"Renewng BanK' shal have the.meang assigned to such term in Section 2.19(a).
"Reportble Event' shall mean any reortble event as dermed in Section 4043(b) of ERISA or the regulations
issued thereunder with respect to a Plan (other than a Plan maintained by an ERISA Affliate which is considered an ERISA
Afliate only puruat to subsection (m) or (0) of Section 414 of the Code).
"Required Banks" shal mean, at any time, Ban havig Revolvig Credit Exposures representing more than
50.0% of the aggregate Revolvig Credit Exposures or, if there shall be no Revolvig Credit Exposure, Ban havig
Commitments representig more than 50.0% of the aggregate Commitments.
"Responsible Offcer' of any corporation shall mean any executive offcer or Financial Offcer of such corporation
and any other offcer or similar offcial thereof responsible for the adminstration of the obligations of such corporation in
respect of this Agreement.
"Revolving Credit Exposure" shal mean, with respect to any Ban at any time, the sum of the outstading
pricipal amount of such Ban's Loan at such tie.
"R TO Transaction" shal mean any sale, trfer or other disposition of trmission assets entered into in
connection with the formation of a regional trsmision organzation pursuat to or in a maner consistent with regulatory
requirements applicable to the Borrower.
"Sale-Leaseback" shal mean any argement whereby any person shall sell or trsfer any propert, real or
personal, used or useful in its business, whether now owned or hereafter acquired, and thereafer rent or lease such propert
or other propert which it intends to use for substatially the same purose or puroses as the propert being sold or
transferred.
"Second Lowest Investment Grade" shall mean that the Senior Debt Rating assigned to the applicable
Indebtedness of the Borrower is a ratig which, as reasonably determined by the Adminstrative Agent, would be the rating
granted by the applicable credit-ratig agency which is generally treated as "investment grade" in the ratings regime of that
credit-ratig agency and is higher than Lowest Investment Grade but lower than Th Lowest Investment Grade.
"Senior Debt Rating' mean, as of any date of determination, as of the close of business on such date, the rating
assigned to the Borrower's most senior secured public Indebtedess by a nationally recognid credit-rating agency selected
by the Borrower, reasonably approved by the Administrtive Agent and not objected to by the Required Ban with five
Business Days following notice of such designation.
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"Signifcant Subsidiary" shall mean a Subsidiar meetig anyone of the following conditions: (a) the investments
in and advances to such Subsidiar by the Borrower and the other Subsidiares, if any, as at the end of the Borrower's latest
fiscal quarer exceeded 10% of the tota assets of the Borrower and its Subsidiares at such date, computed and consolidated
in accordace with GAA; or (b) the Borrower's and the other Subsidiares' proportonate shae of the total assets (afer
intercompany eliminations) of such Subsidiar as at the end of the Borrower's latest fiscal quar exceeded 10% of the total
assets of the Borrower and its Subsidiares at such date, computed and consolidated in accordace with GAA; or (c) the
equity in the income from contiuing operations before income taes, extrordinar ites and cumulative effect of a change
in accountig priciples of such Subsidiar for the period of four consecutive fiscal quarers ending at the end of the
Borrower's latest fiscal quarer exceeded 10% of such income of the Borrower and its Subsidiares for such period, computed
and consolidated in accordace with GAA; or (d) such Subsidiar is the parent of one or more Subsidiares and together
with such Subsidiares would, if considered in the aggregate, constitute a Significant Subsidiar.
"Statutory Reserve Rate" shall mean 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 (includig for any
marginal, special, emergency or supplemental reserves), expressed as a decimal, established by the Board and to which
Union Ban is subject for Eurocurency fudig (curently referred to as "Eurocurency liabilties" in Reguation D). Such
reserve percentages shall include those imposed puruant to Regulation D. Eurodollar Loan shall be deemed to constitute
Eurocurency fuding and to be subject to such reserve requients without benefit of or credt for proration, exemptions or
offsets that might be available from tie to time to any Ban under Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any applicable reserve
percentage.
"subsidiary" shall mean, for any person (the "Parent'), any corporation, limited liability company, parership or
other entity of which securities or other ownership interests having by the terms thereof ordiar votig power to elect a
majority of the board of directors or other persons performg similar fuctions of such corporation, limited liabilty
company, parership or other entity (irespective of whether .or not at the tie securties or other ownership interests of any
other class or classes of such corporation, limited liabilty company, parership or other entity shall have or might have
voting power by reason of the happening of any contigency) ar at the tie diectly or indirectly owned or controlled by the
Parent or one or more of its subsidiares or by the Parent and one or more of its subsidiares.
"Subsidiary" shal mean a subsidiar of the Borrower.
"Supplemental Indenture" shal mean (a) the Fort-seventh Supplemental Indentue, dated as of November 1,
2009, between the Borrower and Citiban, N.A., as trstee under the First Mortgage, and/or (b) any supplemental indentue
to the First Mortgage, in form and substance satisfactory to the Administrative Agent, puruant to which a first mortgage
bond is issued in addition to, or in substitution for, a fist mortgage bond previously delivered to the Adminstrative Agent
pursuant to ths Agreement, in each case in connection with a reduction or increase in the tota Commitments pursuant to
Section 2.09(b) or (c) or an extension of the Expiration Date puruant to Section 2.l9.
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"Terminatd Bank" shall have the meang assigned to such term in Section 2.18(c).
"Terminatng Ban/t' shal have the meang assigned to such term in Section 2.l9(c).
"Third Lowest Investment Grade" shall mean that the Senior Debt Ratig assigned to the applicable Indebtedness
of the Borrower is a ratig which, as reasonably determined by the Administrtive Agent, would be the ratig grted by the
applicable credit-rating agency which is generally treated as "investment grade" in the ratigs regime of that credit-ratig
agency and is higher than Second Lowest Investment Grade but lower than Four Lowest Investment Grade.
"Transactions" shall have the meanng assigned to such term in Section 3.02.
"Transferee" shall have the meaning assigned to such term in Section 2. 17(a).
"Type," when used in respect of any Loan or Borrowig, shal refer to the Rate by reference to which interest on
such Loan or on the Loans comprising such Borrowing is determed. For puroses hereof, "Rate" shall mean, in the case of
a Loan or Borrwing, the Eurodollar Rate or the Alternate Base Rate.
"Union Ban/t' shall mean Union Ban, N.A.
Section 1.02 Terms Generally. The defInitions in Section 1.01 shal apply equally to both the singular and plural forms
of the terms defied. Whenever the context may require, any pronoun shall include the correspondig masculine, femine
and neuter forms. The words "include," "includes" and "including" shall be deemed to be followed by the phrse "without
limitation." All references herein to Arcles, Sections, Exhibits and Schedules shall be deemed references to Arcles and
Sections of, and Exhibits and Schedules to, ths Agreement uness the context shall otherwise require. Except as otherwise
expressly provided herein, all accountig terms not otherwse defmed herein shall have the meangs assigned to them in
conformty with GAA as in effect at that time. Financial statements and other information required to be delivered by the
Borrwer to the Administrative Agent and the Ban puruant to Section 5.04 shall be prepared in accordace with GAA as
in effect at the tie of such preparation, and calculations in connection with the defmitions, covenants and other provisions
hereof shall utilize accounting priciples and policies in conformity with GAA as in effect at the time of such preparation. If
the Borrower notifies the Adminstrative Agent that the Borrower requests an amendment to any provision hereof to
eliminate the effect of any change occurg after the date hereof in GAA or in the application thereof on the operation of
such provision (or if the Admstrative Agent notifies the Borrower that the Required Ban request an amendment to any
provision hereof for such purose), regardless of whether any such notice is given before or after such change in GAA or in
the application thereof, such provision shall be interpreted on the basis of GAA as in effect at that time until such provision
is amended in accordance herewith.
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ARTICLEll
THE CREDITS
Section 2.01 Commtments. Subject to the term and conditions and relyig upon the representations and waranties
herein set fort, each Ban agrees, severally and not jointly, to make Loan to the Borrower, at any tie and from tie to
tie durg the Availability Period, in an aggregate pricipal amount at any time outstadig tht wil not result in (a) the
Revolving Credit Exposure of any Ban exceedig such Ban's Commtment or (b) the tota Revolvig Credit Exposus
exceedig the total Commitments. With the liits set fort in the precedg sentence, the Borrower may borrow, payor
prepay, and reborrow Loans durg the Avaiabilty Perod, subject to the term, conditions and limitations set fort herein.
Section 2.02 Loans.
(a) Each Loan shall be made as par of a Borrowig consisting of Loans made by the Ban ratably in accordace
with their Commtments. The failure of any Ban to make any Loan "required to be made hereunder shall not in itself relieve
any other Ban of its obligation to lend hereunder (it being understood, however, that no Ban shall be responsible for the
failure of any other Ban to make any Loan required to be made by such other Ban). The Loan comprising each Borrowing
shall be in the aggregate pricipal amount of $ I ,000,000 or a whole-integer multiple of $ I 00,000 in excess thereof.
(b) Subject to Section 2.08, each Borrowig shal be comprised entirely of ABR Loan or Eurodollar Loans, as the
Borrower may request pursuant to Section 2.03. Each Ban may at its option fulfi its Commtment with respect to any
Eurodollar Loan by causing any domestic or foreign branch or Afliate of such Ban to make such Loan; provided that any
exercise of such option shal not affect the obligation of the Borrower to reay such Loan in accordace with the terms of this
Agreement or any applicable Note. Borrowings of more than one Type may be outstadig at the same tie; provided,
however, tht the Borrower shall not be entitled to request any Borrowig which, if made, would result in an aggregate of
more than eight separate Eurodollar Loan of any Ban being outstadig hereunder at anyone tie. For puroses of the
foregoing, Loan having different Interest Periods, regardless of whether they commence on the same date, shall be
considered separate Loan.
(c) Subject to paragraph (f) below, each Ban shall make a Loan in the amount of its Pro Rata Share of each
Borrowing on the proposed date thereof by wie trfer of imediately available fuds to the Administrtive Agent in Los
Angeles, Californa, not later th 1 1 :00 a.m., Pacific tie, and the Adminstrtive Agent shall by 1 :00 p.m., Pacifc tie,
make available to the Borrower in imediately available fuds the amounts so received (i) by wire tranfer for credit to the
account of the Borrower with Wells Fargo Ban National Asociation bearng Account Number 41688 14770, ABA #
121000248, re: Avista Corp. or (ii) as otherwse specified by the Borrower in its notice of Borrowing or, ifa Borrowing shall
not occur on such date because any condition precedent herein specified shall not have been met,
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retu the amounts so received to the respective Ban. Unless the Admnistrative Agent shall have received notice from a
Ban prior to the date of any Eurodollar Borrowing or prior to 1 I :00 a.m., Pacific time, on the date of any ABR Borrowig
that such Ban will not make available to the Adminstrative Agent such Ban's portion of such Borrowig, the
Adminstrative Agent may assume that such Ban has made such porton available to the Adminstrtive Agent on the date of
such Borrowing in accordace with ths pargraph (c), and the Adminstrative 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 Ban shall not have made
such porton available to the Adminstrative Agent, such Ban and the Borrower severally agree to repay to the
Adminstrative Agent fortwith 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 Admnistrative Agent, at (i) in
the case of the Borrower, the interest rate applicable at the tie to the Loans comprising such Borrowig and (ii) in the case
of such Ban, the Federal Funds Effective Rate. If such Ban shall repay to the Adminstrtive Agent such corresponding
amount, such amount shall constitute such Ban's Loan as par of such Borrowig for puroses of th Agreement.
(d) The Administrative Agent may (but shall not be required to), in its discretion, retain any payments or other
fuds received thereby that are to be provided to a Defaultig Ban hereunder (but shall have no obligation to pay interest
thereon), and the Adminstrative Agent may apply such fuds to such Defaultig Ban's defaulted obligations or readvance
the fuds to the Borrower in accordace with ths Agreement. The failure of any Ban to perform its obligations hereunder
shall not relieve any other Ban of its obligations, and no Ban shall be responsible for a default by another Ban. The Ban
and the Adminstrative Agent agree (which agreement is solely among them and not for the benefit of or enorceable by the
Borrower) that, solely for purposes of determining a Defaultig Ban's right to vote on mattrs relating to the Loan
Documents and to share in payments, fees and collateral proceeds thereunder, a Defaultig Ban shall not be deemed to be a
"Ban" until all of its defaulted obligations have been cured. For the avoidace of doubt, a Defaultig Ban shall not be
entitled to vote on (i) any mattr relating to ths Agreement or any of the other Loan Documents tht requies the approval,
consent or non-objection of the Required Ban or of all of the Ban or (ii) the extension of the Expiration Date pursuant to
Section 2.19; provided, however, that a Defaulting Ban shal be treated as a Termating Ban in connection with any
request by the Borrower to extend the Expiration Date pursuant to Section 2. 19. Notwthtadig anytg herein to the
contrar, the Borrower reserves al of its rights and remedies against each Defaulting Ban to recover any daages caused to
the Borrower by such Defaulting Ban by reason of such Defaultig Ban's faiure to make any payment or provide fuds to
the Adminstrative Agent or the Borrower as requied hereunder.
( e) Notwithtadig any other provision of ths Agreement, the Borrower shall not be entitled to request any
Borrowing if the Interest Period requested with respect thereto would end afer the Expirtion Date.
(f) The Borrower may refice all or any par of any Borrowing with a new Borrowing of the same or a different
Type, subject to the conditions and limitations set fort in ths Agreement. Any Borrowing or par thereof so refmanced shall
be deemed to be repaid or
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prepaid in accordace with Section 2.04 or 2.10, as applicable, with the proceeds of the new Borrowig, and the proceeds of
the new Borrowig, to the extent they do not exceed the pricipal amount of the Borrowing being refmaced, shall not be
paid by the Ban to the Adminstrtive Agent or by the Adminstrative Agent to the Borrower pursuant to paragraph
(c) above.
Section 2.03 Notice of Borrwings. To request a Borrwig, the Borrower shall give the Adminstrative Agent notice
thereof (a) in the case of a Eurodollar Borrowig, not late than 9:00 a.m., Pacifc tie, thee Business Days before a
proposed borrowig and (b) in the case of an ABR Borrowing, not later than 9:00 a.m., Pacific tie, the day of a proposed
borrowing. Such notice shall be irevocable and shall in each cas refer to ths Agreeent 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 shal 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. Ifno election as to the Type of Borrowing is specified in any such notice, then the
requested Borrowig 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 shal not have given notice in accordace with ths Section 2.03 of its election to refmace a Borrowing or given
notice to the Administrative Agent not later than 9:00 a.m., Pacific tie, on the last day of the Interest Period applicable to
such Borrowing that it wil not refmance such Borrowing, then the Borrower shal be deemed to have given notice of an
election to refmance such Borrowing with an ABR Borrowing. The Administrative Agent shall promptly advise the Ban of
any notice given pursuant to ths Section 2.03 and of each Ban's porton of the requested Borrowing.
Section 2.04 Repayment of Loan; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay each Ban the then unpaid pricipal amount of each
Loan of such Ban on the last day of the Interest Period applicable to such Loan and on the Expiration Date. Each Loan shall
bear interest on the outstading pricipal balance thereof as set fort in Section 2.06.
(b) Each Ban shal maintain in accordace with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Ban resulting from each Loan made by such Ban, includig the amounts of pricipal
and interest payable and paid to such Ban from time to tie hereunder.
(c) The Admstrative Agent shall maitain accounts in which it shal 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 pricipal, interest or fees
due and payable or to become due and payable from the Borrower to each Ban hereunder and (iii) the amount of any
principal, interest or fees received by the Adminstrative Agent hereunder for the account of the Ban and each Ban's share
thereof.
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(d) The entres made in the accounts maintaed puruant to pargraph (b) or (c) of ths Section shall be pria facie
evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Ban or the
Adminstrative Agent to maintain such accounts or any error therein shal not in any maner affect the obligation of the
Borrower to repay the Loan in accordance with the terms of ths Agreement.
(e) Any Ban may request that Loan made by it be evidenced by a Note. In such event, the Borrwer shall
prepare, execute and deliver to such Ban a Note payable to the order of such Ban (or, if requested by such Ban, to such
Ban and its registered assigns). Thereafer, the Loan evidenced by such Note and interest thereon shall at all times
(including after assignent 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 Fees.
(a) The Borrower agrees to pay to each Ban, though the Adminstrative Agent, on the fit Business Day of
Januar, April, July and October of each year and on the date on which the Commtment of such Ban shall be reduced or
terminated as provided herein, a facilty fee at the Applicable Rate (a "Facilty Fee") on the daily amount of the Commitment
of such Ban durig the precedig quaer (or shorter period commencing with the date hereof or ending with the Expiration
Date or the date on which the Commitment of such Ban shall be reduced or termated). The Facilty Fees shall accrue on
each day at a rate per anum equal to the Applicable Rate in effect on such day. All Facility 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 (includig
the first day but excludig the last day). The Facility Fee due to each Ban shall commence to accrue on the date of this
Agreement and shall cease to accrue on the date on which the Commitment of such Ban shall be terminated as provided
herein.
(b) The Borrower agrees to pay to the Administrative Agent, for its own account, the fees separately agreed
between the Adminstrative Agent and the Borrower.
(c) Once paid, none of the Fees shall be refudable under any circumtaces.
Section 2.06 Interest on Loan.
(a) Subject to the provisions of Section 2.07, the Loan comprising each ABR Borrowig shall bear interest at a
rate per anum equa to the Alternate Base Rate plus the Applicable Rate.
(b) Subject to the provisions of Section 2.07, the Loans comprising each Eurodollar Borrowig shall bear interest at
a rate per anum equal to the Eurodollar Rate for the Interest Period in effect for such Borrowig 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 ths Agreement.
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(d) Interst computed on the basis of the Alterntive Base Rate (including interest payable on overdue amounts
under Section 2.07) 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 Reference 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 Alternte Base Rate. Interest computed on the basis of the Eurodollar Rate (includig interest payable
on overdue amounts under Section 2.07) 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 with an Interest Period,
as the case may be, shall be determined by the Adminstrative Agent, and such determination shall be conclusive absent
manfest error.
Section 2.07 Default Interest. If the Borrower shall default in the payment of the pricipal of or interest on any Loan or
any other amount becoming due under the Loan Documents, by acceleration or otherwise, the Borrower shall on demad
from tie to time pay interest, to the extent permtted by law, on such defaulted amount up to (but not including) the date of
actual payment (afer as well as before judgment) at a rate per anum equal to the Alternate Base Rate plus the Applicable
Rate plus 2% (except that the interest rate applicable to an overdue amount of pricipal of a Eurodollar Borrowing tht
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 otherwse be applicable thereto durg such Interest Period).
Section 2.08 Alternte 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 Adminstrative Agent shall have in good faith
determined that dollar deposits in the pricipal amounts of the Loan comprising such Borrowing are not generally available
in the London interban 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 Ban of makg or maitaing their Eurodollar Loans durg such Interest
Period, or that reasonable means do not exist for ascerg the Eurodollar Rate, the Administrative Agent shall, as soon as
practicable thereafter, give notice of such determination to the Borrower and the Ban. In the event of any such
determtion, any request by the Borrower for a Eurdollar Borrowing puruat to Section 2.03 shall, until the
Adminstrative Agent shall have advised the Borrower and the Ban that the circumstaces givig rise to such notice no
longer exist, be deemed to be a request for an ABR Borrowing. Each determation by the Adminstrative Agent hereunder
shall be conclusive absent manfest error.
Section 2.09 Termination, Reduction and Increase in Commtments.
(a) The Commitments shall be automatically terminted on the Expiration Date.
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(b) Upon at least thee Business Days' prior irvocable notice to the Administrative Agent, the Borrower may at
any time in whole permently terminte, or from time to time in par permanently reduce, the unused portion of the
Commtments; provided, however, that (i) each paral reduction of the Commitments shall be in the aggregate amount of
$5,000,000 or a higher whole-integer multiple thereof, and (ii) the Borrower shall not terminate or reduce the Commitments
if, afr giving effect to any concurent prepayment of the Loans in accordace with Section 2.10, the su of the Revolving
Credit Exposures would exceed the total Commitments.
(c) At any time following the date of ths 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 $25,000,000, either by new
Ban establishing Commitments or by one or more then-existig Ban increasing their Commitments (each such new Ban
or Ban increasing its Commitment, an "Additional Commitent Banlt'); provided that (i) each Additional Commitment
Ban shall be selected or approved by the Borrower and shall be reasonably acceptable to the Adminstrative Agent, (ii) no
Ban shall have an obligation to become an Additional Commitment Ban, (ii) no Default or Event of Default shall exist
imediately prior to or aftr the effective date of the increase in the Commitments, (iv) the representations and waranties set
fort in Aricle m shal be tre and correct in all material respects on and as of the effective date of the increase in the
Commitments with the same effect as if made on and as of such date, except to the extent that such representations and
waranties expressly relate to an earlier date, (v) 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, (vi) the aggregate amount of the increase in the
Commtments after the date of ths Agreement shall not exceed $25,000,000, and (vi) no increase in the CoIIitments shall
become effective unless and until (A) the Borrower, the Admstrative Agent and each Additional Commitment Ban shall
have executed and delivered an agreement substatially in the form of Exhibit D (a "Commitment Increase Supplement')
and (B) the Admstrative Agent shall have received a substitute First Mortgage Bond in an amount equal to the tota
Commitments after givig effect to the increase in the Commitments, together with a supplemental indentue, a bond delivery
agreement, mortgage title inurce, legal opinions and other certficates and documents with respect thereto comparable to
those delivered puruant to Section 4.02(a) with respect to the First Mortgage Bond issued under the Firt Mortgage and
delivered to the Adminstrative Agent on the Closing Date, in each case in form and substance satisfactory to the
Adminstrtive Agent. On the effective date of an increase in the Commitments, each Additional Commitment Ban shall
purchase, as an assignment from each other existing Ban the porton of such other Ban's Loan outstading at such tie
such that, after givig effect to such assignments, the respective aggregate amount of Loan of each Ban shall be equal to
such Ban's Pro Rata Share of the aggregate Loan outstading. The purchase price for the Loan so assigned shall be the
sum of the pricipal amount of the Loans so assigned plus the amount of accrued and unpaid interest thereon as of the date of
assignent. Each Additional Commitment Ban 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 Adminstrative Agent shall promptly forward to each
other Ban the portion thereof payable to it. Upon payment of such purchase price, each other Ban shall be automatically
deemed to have sold and made such an assignment to such Additional Commitment Ban and shall, to the extent of the
interest assigned, be released from its
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obligations under the Loan Documents, and such Additional Commitment Ban shall be automatically deemed to have
purchased and assumed such an assignment from each other Ban and, if not already a Ban hereunder, shal be a par
hereto and, to the extent of the intest assigned, have the rights and obligations of a Ban under the Loan Documents.
Section 2. 10 Prepayment. The Borrower shall have the right at any tie and from tie to tie to prepay any Borrowing,
in whole or in par, upon at least thee Business Days' prior notice to the Adminstrative Agent, in the case of a preayment
of a Eurödollar Borrowing, and upon at least one Business Day's prior notice, in the case of a prepayment of an ABR
Borrowing; provided, however, tht each paral prepayment shall be in the amount of $1,000,000 or a higher whole-integer
multiple thereof. Each notice of prepayment shall specif the prepayment date and the pricipal amount of each Borrowing
(or portion thereof) to be prepaid, shall be irevocable and shall commit the Borrower to prepay such Borrowing by the
amount stated therein on the date stated therein. Al prepayments under ths Section 2. LO shall be subject to Section 2.13 but
otherwise without premium or penalty. All prepayments under ths Section 2. LO shall be accompanied by accrued interest on
the pricipal amount being prepaid to (but excludig) the date of payment.
Section 2. 11 Reserve Requirments; Change in Circumtaces.
(a) Notwthtadig any other provision herein, if after the date of ths Agreement there is adopted any new law,
rule or regulation or any chage in applicable law or regulation or in the interpretation or adminstration thereof by any
Governental Authority charged with the interpretation or adminstration thereof (whether or not havig the force of law)
which shall impose, modify or deem applicable any reserve, special-deposit or similar requirement agaist assets of, deposits
with or for the account of or credit extended by any Ban (except any such reserve requirement which is reflected in the
Eurodollar Rate) or shall impose on such Ban or the London interban market any other condition afecting ths Agreement
or Eurodollar Loan made by such Ban and the result of any of the foregoing shall be to increase the cost to such Ban of
makg or maintaining any Eurodollar Loan or to reduce the amount of any sum received or receivable by such Ban
hereunder or under any Notes (whether of pricipal, interest or otherwise) by an amount deemed by such Ban to be material,
then the Borrower wil pay to such Ban upon demand such additional amount or amounts as wil compensate such Ban for
such additional costs incurred or reduction suffered.
(b) If any Ban shall have detem:ined that the applicabilty of any law, rule, regulation, agreement or guideline
adopted after the date hereof regardig capita adequacy, or any change in any of the foregoing or the adoption afer the date
hereof of any change in any law, rue, regulation, agreement or guideline existing on the date hereof or in the interpretation or
administration of any of the foregoing by any Governental Authority charged with the interpretation or adminstration
thereof, or compliance by any Ban (or any lendig offce thereof) or any Ban's holding company with any request or
diective regarding capital adequacy (whether or not having the force of law) of any such authority, central ban or
comparable agency, has or would have the effect of reducing the rate of retu on such Ban's capital or on the capita of
such Ban's holding company, if any, with respect to ths Agreement or Loan made by such Ban to a level below that
which such Ban or such Ban's holding company
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could have achieved but for such applicabilty, adoption, change or compliance (takg into consideration such Ban's
policies and the policies of such Ban's holdig company with respect to capital adequacy) by an amount deeed by such
Ban to be material, then from time to tie the Borrower shall pay to such Ban such additional amount or amounts as wil
compensate such Ban or such Ban's holding company for any such reduction suffered. It is acknowledged tht ths
Agreement is being entered into by the Ban on the understading that the Ban wil not be required to maintain capital
agait their obligations to make Loans under curently applicable laws, regulations and regulatory guidelines. In the event
that the Ban shall be advised by any Governental Authority or shall otherwse determine on the basis of pronouncements
of any Governental Authority that such understandig is incorrect, it is agreed that the Ban wil be entitled to make
claims under this paragraph based upon market requirements prevailing on the date hereof for commitments under
comparable credit facilties agait which capita is required to be maintaed.
(c) A certficate of a Ban setting fort in reasonable detal such amount or amounts as shall be necessar to
compensate such Ban or such Ban's holding company as specified in paragraph (a) or (b) above, as the case maybe, and
the maer in which such Ban has determined the same, shall be delivered to the Borrower and shal be conclusive absent
manfest errr. The Borrower shall pay the Ban the amount shown as due on any such certficate delivered by it within 10
days afer its receipt of the same.
(d) Faiure on the par of any Ban to demand compenation for any increased costs or reduction in amounts
received or receivable or reduction in retu on capital with respect to any period shall not constitute a waiver of such Ban's
right to demand compensation with respect to such period or any other period. The protection of this Section shall be
available to each Ban regardless of any possible contention of the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occured or been imposed.
Section 2.12 Change in Legality.
(a) Notwthstadig any other provision herein, if any change in, or adoption of, any law or regulation or in the
interpretation thereof by any Governenta Authority charged with the adminstration or interpretation thereof shall make it
unawfl for any Ban to make or maita 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 Adminstrtive Agent, such Ban may:
(i) declare that Eurodollar Loans wil not thereafter be made by such Ban hereunder, whereupon any request
by the Borrower for a Eurodollar Borrowing shall, as to such Ban only, be deemed a request for an ABR Loan uness such
declaration shal be subsequently withdrawn; and
(ii) require that all outstading Eurodollar Loan made by it be converted to ABR Loans, in which event all
such Eurodollar Loans shall be automatically converted to ABR Loan as of the effective date of such notice as provided in
pargraph (b) below.
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In the event any Ban shall exercise its rights under (i) or (ii) above, all payments and prepayments of pricipal which would
otherwise have been applied to repay the Eurodollar Loan tht would have been made by such Ban or the convert
Eurodollar Loan of such Ban shall intead be applied to reay the ABR Loan made by such Ban in lieu of, or resulting
from the converion of, such Eurodollar Loan.
(b) For puroses of this Section 2.12, a notice to the Borrower by any Ban shall be effective as to each Eurodollar
Loan, if lawful, on the last day of the Interest Period curntly applicable to such Eurodollar Loan.
Section 2.13 Indemntv. The Borrower shal indemfy each Ban againt any loss or expense which such Ban may
sustai or incur as a consequence of (a) any faiur by the Borrower to fulfill on the date of any Eurodollar Borrowing
hereunder the applicable conditions set fort in Arcle 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 puruant to Section 2.03, (c) any
payment or prepayment of a Eurodollar Loan required by any provision of ths 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
puruant to Section 2. 18(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 pricipal amount of any Eurodollar Loan or any par thereof or interest
accrued thereon, as and when due and payable (at the due date thereof, whether by scheduled matuty, acceleration,
irevocable notice of prepayment or otherwise) including, in each such case, any loss or reasonable expense sustained or
incured or to be sustained or incured in liquidating or employig deposits from thd paries acquired to effect or maita
such Loan or any par 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 Ban of (i) its cost of obtag the fuds 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, assignent or failure to borrow to the last day of the Interest Perod 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 Ban) that would be realized by such Ban in reemploying
the fuds so paid, prepaid, assigned or not borrowed for such period or Interest Period, as the case may be. A certificate of
any Ban setting fort any amount or amounts which such Ban is entitled to receive puruat to ths Section, and the maner
in which such Ban has determined the same, shall be delivered to the Borrower and shall be conclusive absent manfest
error.
Section 2. 14 Pro Rata Treatment. Except as required under Section 2.12, each Borrowing, each payment or prepayment
of pricipal of any Borrowing, each payment of interest on the Loan, each payment of the Fees, and each reduction of the
Commitments shall be allocated among the Ban in accordace with their respective Pro Rata Shares. Each Ban agrees
that, in computing such Ban's porton of any Borrowing to be made hereunder, the Adminstrative Agent may, in its
discretion, round each Ban's Pro Rata Share of such Borrowig to the next higher or lower whole-dollar amount.
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Section 2.15 Shag of Setoffs. Each Ban agrees that if it shall, though the exercise of a right of baner's lien, setoff
or counterclaim against the Borrower, or pursuant to a secured claim under Section 506 of Title I I of the United States Code
or other securty or interest arsing from, or in lieu of, such secured claim, received by such Ban under any applicable
banptcy, inolvency or other simlar law or otherwise, or by any other mean, obta payment (volunta or involunta)
in respect of its Loan as a result of which the unpaid pricipal portion of its Loan shall be proportionately less than the
unpaid pricipal porton of the Loan of any other Ban, it shall be deemed simultaeously to have purchased from such
other Ban at face value, and sha promptly pay to such other Ban the purchase price for, a parcipation in the Loans of
such other Ban ("Sharing Partiipations"), so tht (a) the aggregate unpaid pricipal amount of the Loans and Shag
Parcipations held by each Ban shall be in the same proporton to the aggregate unpaid pricipal amount of all Loans then
outstadig as (b) the pricipal amount of its Loans and Sharg Parcipations prior to such exercise of baner's lien, setoff
or counterclaim or other event was to the pricipal amount of all Loan outstading prior to such exercise of baner's lien,
setoff or counteclai or other event; provided, however, that, if any such purchase or purchases or adjustments shall be
made puruant to ths 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 arangements and agrees that any Ban holdig a parcipation in
a Loan deemed to have been so purchased may exercise any and all rights of baner's lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower to such Ban by reason thereof as fully as if such Ban had made a
Loan diectly to the Borrower in the amount of such parcipation.
Section 2.16 Payments.
(a) The Borrower shall make each payment (including pricipal of or interest on any Borrowig or any Fees or
other amounts) hereunder and under any other Loan Document not later than 9:00 a.m., Pacific time, on the date when due in
dollar to the Adminstrative Agent at its offces at 445 South Figueroa Street, Los Angeles, California 90071, in immediately
available fuds.
(b) Whenever any payment (includig pricipal of or interest on any Borrowig or any Fees or other amounts)
hereunder or under any other Loan Document shall become due, or otherwse 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 tie shall in such case be
included in the computation of interest or Fees, if applicable.
Section 2. 17 Taxes.
(a) Any and all payments by the Borrower hereunder and under any other Loan Document shall be made, in
accordce with Section 2. i 6, free and clear of and without deduction for any and all present or futue taxes, levies, imposts,
deductions, chages or
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witloldings, and al liabilities with respect thereto, excludig taes imposed on the net income of the Admstrative Agent
or any Ban (or any trsferee or assignee thereof, includig a parcipation holde (any such entity being caled a
"Transferee")) and franchise taes imposed on the Admstrative Agent or any Ban (or Tranferee) by the United States or
any jursdiction under the laws of which the Admstrative Agent or any such Ban (or Transferee) or the applicable lendig
offce, is organed or any political subdivision thereof (all such nonexcluded taes, levies, imposts, deductions, chages,
witloldings and liabilities being hereinafr referred to as "Taxs"). 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 Ban (or any Tranferee) or the
Adminstrative Agent, (i) the sum payable shall be increased by the amount necessar so that afer makg all required
deductions of Taxes (including deductions applicable to additiona sums payable under th Section 2.1 7) such Ban (or
Tranferee) or the Admnistrative Agent (as the case may be) shal receive an amount equal to the sum it would have received
had no such deductions of Taxes been made, (ii) the Borrower shal make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant taing authority or other Goverental Authority in accordance with applicable law;
provided, however, tht no Tranferee of any Ban shall be entitled to receive any greater payment under this paragraph
(a) than such Ban would have been entitled to receive with respect to the rights assigned, parcipated or other wise
tranferred except to the extent that such greater payment arses from circumstaces not in existence at the tie such
assignment, paricipation or tranfer shall have ben made.
(b) In addition, the Borrower agrees to pay any present or futu stap or documenta taes or any other excise or
propert taes, charges or similar levies which arse from any payment made under any Loan Document or from the
execution, delivery or registration of, or otherwise with respect to, ths Agreement or any other Loan Document (hereinfter
referred to as "Other Taxes").
(c) The Borrower wil indemnfy each Ban (or Tranferee) and the Adminstrative Agent for the full amount of
any Taxes and Other Taxes paid by such Ban (or Tranferee) or the Adminstrtive Agent, as the case may be, and any
liability (including penalties, interest and reasonable expenses) arsing therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were corrtly or legaly assertd by the relevant taing authority or other Governental Authority.
Such indemnfication shall be made with 30 days after the date any Ban (or Tranferee) or the Adminstrative Agent, as
the case may be, makes wrtten demand therefor. If a Ban (or Tranferee) or the Admstrtive Agent shall become aware
that it is entitled to receive a refud in respect of Taxes or Other Taxes as to which it has been indemnfied by the Borrower
puruat to ths Section 2. 17, it shal promptly notify the Borrower of the availability of such refud and shall, with 30 days
afer receipt of a request by the Borrower, apply for such refud at the Borrower's expense.
(d) If any Ban ( or Transferee) or the Adminstrative Agent receives a refud in respect of any Taxes or Other
Taxes as to which it has been indemnfied by the Borrower pursuat to ths Section 2. 1 7, it shall promptly notify the
Borrower of such refud and shall repay such refud to the Borrower (to the extent of amounts that have been paid by the
Borrower under ths Section 2.17 with respect to such refund) within 30 days (or promptly upon receipt, if
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the Borrower ha requested application for such refud pursuant hereto), net of all reaonable out-of-pocket expenses of such
Ban (or Tranferee) and without interest (other than interest included in such refund); provided that the Borrower, upon the
request of such Ban ( or Tranferee) or the Admnistrative Agent, agrees to retu such refud (plus penalties, interest or
other chages) to such Ban (or Tranferee) or the Adminstrtive Agent in the event such Ban (or Tranferee) or the
Adminstrative Agent is required to repay such refud. Nothg contaed in this pargraph (d) shall require any Ban (or
Tranferee) or the Administrative Agent to mae available any of its ta returns (or any other inormation relatig to its taxes
which it deems to be confdential); provided that Borrower, at its expense, shall have the right to receive an opinon from a
fin of independent public accountats of recognized national stadig acceptable to the Borrower that the amount due
hereunder is correctly calculated.
(e) With 30 days after the date of any payment of Taxes or Other Taxes witheld by the Borrower in respect of
any payment to any Ban (or Transferee) or the Adminstrative Agent, the Borrower will fush to the Adminstrtive Agent,
at its address referred to in Section 10.0 l, the original or a certfied copy of a receipt received by the Borrower evidencing
payment thereof.
(t) Without prejudice to the surval of any other agreement contaed herein, the agreements and obligations
contained in ths Section 2. i 7 shall surive the payment in full of the pricipal of and interest on all Loan made hereunder.
(g) On or prior to the execution of ths Agreement and on or before the trsfer to a Transferee, the Admnistrative
Agent shall notify the Borrower of each Ban's (or Transferee's) address. On or prior to the Ban' (or any Tranferee's)
first Interest Payment Date, and from tie to tie as required by law, each Ban (or Transferee) tht is not a United States
person with the meang of Section 7701 (a)(30) of the Code (a "Non-U.S. Person") shall, iflegally able to do so, deliver to
the Borrower and the Adminstrative Agent (i) one duly completed and executed copy of United States Internal Revenue
Servce Form W-8BEN or W-8ECI, (ii) if claimig exemption from United States Federal witholding ta pursuant to
Section 871 (h) or 88 i (c) of the Code, one duly completed and executed copy of a United States Internal Revenue Service
Form W-8BEN and a certificate representig that such Non-U.S. Person is not a ban for puroses of Section 881(c) of the
Code, is not a 10 percent shareholder (with the meang of Section 871(h)(3)(b) of the Code) of the Borrower and is not a
controlled foreign corpration related to the Borrower (with 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 Ban (or Trasferee) is entitled to receive
payments under the Loan Documents payable to it without deduction or witholdig of any United States Federal income
taes, or is subject to a reduced rate thereof. Unless the Borrower and the Adminstrative 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 witholding ta or are subject to such ta at a rate reduced by an applicable ta treaty, the Borrower shall withold
taes from such payments at the applicable statutory rate.
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(h) The Borrower shal not be required to pay any additional amounts to any Ban (or Traferee) in respect of
United States Federal witholdig ta pursuant to pargraph (a) above if the obligation to pay such additional amounts would
not have arsen but for a failure by such Ban ( or Traferee) to comply with the proviions of pargraph (g) above;
provided, however, that the Borrower shal be required to pay those amounts to any Ban (or Trasferee) that it was required
to pay hereunder prior to the failure of such Ban (or Tranferee) to comply with the provisions of such paragraph (g).
Section 2.18 Termination or Assignent of Commitments under Cert Circumstaces.
(a) Any Ban (or Transferee) claimg any additional amounts payable pursuant to Section 2.11 or Section 2.17 or
exercising its rights under Section 2.12 shall use reasonable effort (consistent with legal and regulatory restrctions) to fie
any certcate or document requested by the Borrower or to change the jursdiction of its applicable lendig offce if the
makg of such a fiing or chage would avoid the need for or reduce the amount of any such additional amounts which may
thereafter accrue or avoid the circumstaces givig rise to such exercise and would not, in the sole determination of such
Ban, be otherwse disadvantageous to such Ban (or Tranferee).
(b) In the event that any Ban shall have delivered a notice or certificate pursuant to Section 2.12, or the Borrower
shall be required to make additiona payments under Section 2.11 or 2.17 to any Ban (or Tranferee) or to the
Adminstrative Agent with respect to any Ban (or Transferee), the Borrower shall have the right, at its own expense, upon
notice to such Ban (or Tranferee) and the Admstrative Agent, (i) to terminate the Commtment of such Ban (or
Tranferee) or (ii) to require such Ban (or Transferee) to tranfer and assign without recourse (in accordance with and
subject to the restrctions contaed in Section LO.04) all its interests, rights and obligations under the Loan Documents to
another fiancial institution which shall assume such obligations; provided that (A) no such termintion or assignment shall
confict with any law, rule or regulation or order of any Governenta Authority and (B) the Borrower or the assignee, as the
case may be, shall pay to the affected Ban (or Transferee) in imedately available fuds on the date of such termination or
assignment the pricipal of and interest accrued to the date of payment on the Loan made by it hereunder and all other
amounts accrued for its account or owed to it under the Loan Documents.
(c) The Borrower shall have the right, at its own expense, upon notice to a Defaulting Ban and the Adminstrative
Agent, to replace such Defaulting Ban (a "Terminated Bank") in accordace with and subject to the restrctions of
Section 10.04, and such Terminate Ban hereby agres to assign without recour (in accordace with and subject to the
restrctions of Section i 0.04) all of its interests, rights and obligations under the Loan Documents to one or more assignees;
provided, however, that no Terminated Ban shall be obligated to make any such assignment unless (i) such assignment does
not confict with any law, rule or regulation or order of any Goverenta Authority and (ii) such Terminated Ban shall
have been paid in imediately available fuds on the date of such assignent the pricipal of and interest accrued to the date
of payment on the Loans made by such Terminated Ban and all fees and other amounts accrued for such Terminted Ban's
account or owed to it hereunder. Each Ban agrees that, if it becomes a Terminated Ban it wil execute and deliver to the
Adminstrative Agent an Assignment and Assumption to evidence the aforementioned assignent and shall deliver to the
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Adminstrative Agent any Notes subject to such Assignment and Assumption; provided, however, that the failure of any
Terminated Ban to execute an Assignent and Assuption shall not render such assignent invalid, and the Administrative
Agent shall record such assignment in its books and records.
Section 2.19 Extension of Expiration Date.
(a) If no Event of Default has occured and is continuing, the Borrower may request, by notice to the
Adminstrative Agent and each Ban given no earlier th 45 days before, and no later than 30 days before, the Expiration
Date applicable on the date of such notice (the "Current Expiratin Date"), that the Ban renew their respective
Commitments for an additional 364 days. If a Ban agres, in its sole and absolute discretion, to so renew its Commitment, it
wil give notice to the Adminstrtive Agent of its decision to do so no earlier than 30 days before, and no later th 20 days
before, the Curent Expiration Date. No later th 19 days before the Curent Expiration Date (or the next Business Day, if
the day 19 days before the Curent Expirtion Date is not a Business Day), the Admistrative Agent will notify the Borrower
and each Ban as to the Ban (each a "Renewing Bank") from which it has received such a notice agreeing to so renew.
Any failure by a Ban to so notify the Administrtive Agent shal be deeed to be a decision by such Ban not to so renew
its Commtment.
(b) If all Ban elect to so renew their respective Commitments, and provided that the additional conditions
specified in Section 4.03 shall have been satisfied, then on the Cuent Expiration Date the Expiration Date shall
automatically become the date that is 364 days following the Cuent Expiration Date.
(c) If, at the tie the Admstrative Agent gives the notice contemplated by Section 2.19(a) to the Borrower and
the Ban, the Commitments of the Renewing Ban aggregate at least 662/3%, but less than i 00%, of the Commitments of
all of the Ban at such tie (the "Existing Commitments"), then (i) as to each Renewing Ban, on the Curent Expiration
Date the Expiration Date shall automatically become the date that is 364 days following the Curent Expirtion Date,
provided that the additional conditions specified in Section 4.03 shall have been satisfied, (ii) the Expiration Date shall
remain unchanged as to each Ban that is not a Renewig Ban (each a "Terminating Bank"), (ii) each Terminatig Ban's
Commitment shal terminate on the Curent Expiration Date, and (iv) on the Current Expiration Date the Borrower shall pay
the outstading Loans owed to each Terminatig Ban and all other amounts owed to each Termating Ban. If, at the time
the Admstrative Agent gives the notice contemplated by Section 2.19(a) to the Borrower and the Ban, the Commitments
of the Renewing Ban aggregate less than 662/3% of the Existig Commitments, none of the Commitments (including the
Commitment of any Renewig Ban) shall be extended, and the Expiration Date shall remain unchanged.
(d) The Borrower may underte the process contemplated by ths Section 2.19 once each year (commencing in
201 i), but the election by any Ban to become a Renewing Ban at any tie shall not obligate such Ban to become a
Renewig Ban at any other time, it being agreed tht each election by any Ban to renew or not renew shall be made by
such Ban in its sole and absolute discretion and that such discretion shall not be limite by any prior election to become a
Renewig Ban.
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(e) If, at any tie tht the Adminstrative Agent gives a notice contemplated by Section 2.l9(a) to the Borrowerand the Ban, the Commitments of the then Renewing Ban aggregate at least 662/3% but less th 100% of the then
Existing Commtments, the Borrower shal have the right, without the consent of the Ban but subject to the consent of the
Adminstrative Agent (which consent shal not be uneasonably witheld), to replace the Commitments of the then
Terminatig Ban by addig to ths Agreement one or more commerial ban or other financial intitutions (which shall,
upon completion of the requiements stated in th Section 2. 1 9, constitute Ban hereunder) or by allowing one or more
Renewing Ban to increase their Commitments hereunder, provided that (i) such aded and increased Commitments shall
not be greater th the Commitments of such Terminating Ban, so tht in no event wil the aggregate amount of the
Existig Commtments be increased (afer givig effect to the contemporaneous termation of the Commtments of such
Termtig Ban), (ii) no Renewig Ban's Commitment shall be increased without the consent of such Renewing Ban,
and (iii) the additional conditions specified in Section 4.03 shall have been satisfied. The Borrower shall give the
Admstrative Agent thee Business Days' notice of the Borrower's intention to increase any Commtment or add a new
commercial ban or other financial institution pursuant to ths Section 2.19. Such notice shal specify each new commercial
ban or other financial intitution, if any, the chages in amounts of Commitments that wil result and such other information
as is reasonably requested by the Administrative Agent. Each new commercial ban or other fmacial intitution agreeing to
be added to ths Agreement, and each Renewing Ban agreeing to increase its Commitment, shal execute and deliver to the
Adminstrative Agent an agreement substatially in the form of Exhbit E (a "Commitment Extension Supplemenf'),
pursuant to which it shall become a par hereto or increase its Commitment, as the case may be. In addition, the Borrower
shall execute and deliver a Note in the pricipal amount of the Commitment of each new Ban or a replacement Note in the
principal amount of the increased Commitment of each Renewig Ban agreeing to increase its Commitment, if and to the
extent requested pursuant to Section 2.04(e). Upon execution by the Admintrative Agent of the relevant Commitment
Extension Supplement, each such new commercial ban or financial institution shall constitute a "Ban" hereunder with a
Commitment as specified therein, or such Renewing Ban's Commitment shall increase as specified therein, as the case may
be.
ARTICLE II
REPRESENTATIONS AN WARS
The Borrower represents and warants to each of the Ban that:
Section 3.01 Organation: Powers. Each of the Borrower and the Significant Subsidiares (a) is a corporation duly
organzed, validly existing and in good stadig under the laws of the jursdiction of its organation, (b) ha all requisite
power and authority to own its propert and assets and to car on its business as now conducted and as proposed to be
conducted, (c) is quaified to do business in every jursdiction where such quaification is requird, except where the failure
so to qualify would not result in a Material Adverse Effect,
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and (d) in the case of the Borrower, has the corprate power and authority to execute, deliver and perform its obligations
under each of the Loan Documents and each other agreement or instrent contemplated thereby to which it is or will be a
pary and to borrow hereunder.
Section 3.02 Authoriation. The execution, delivery and perormance by the Borrower of each of the Loan Documents
and the Borrowings (collectively, the "Transactions") (a) have been duly authorid by all requisite corporate and, if
required, stockholder action and (b) wil not (i) violate (A) any provision oflaw, statute, rule or regulation the violation of
which could reasonably be expected to impair the validity and enforceabilty of this Agreement or any other Loan Document
or materially impai the rights of or benefits available to the Ban under the Loan Documents, or of the certficate or arcles
of incorpration or other constitutive documents or bylaws of the Borrower or any Significant Subsidiar, (B) any order of
any Governenta Authority the violation of which could reasonably be expected to impair the validity or enforceabilty of
ths Agreement or any other Loan Document, or materially impai the rights of or benefits available to the Ban under the
Loan Documents, or (C) any provision of any indentue or other material agreement or intrent evidencing or relatig to
borrowed money to which the Borrower or any Signifcant Subsidiar is a par or by which any of them or any of their
propert is or may be bound in a maner which could reasonably be expected to impair the validity and enforceabilty of ths
Agreement or any other Loan Document or materially impair the rights of or benefits available to the Bans under the Loan
Documents, (ii) be in confict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default
under any such indentue, agreement or other intrent in a maner which could reasonably be expected to impai the
validity and enforceabilty of ths Agreement or any other Loan Document or materially impair the rights of or benefits
available to the Bans under the Loan Documents or (ni) result in the creation or imposition under any such indentue,
agreement or other instrent of any Lien upon or with respect to any propert or assets now owned or hereafter acquired by
the Borrower.
Section 3.03 Enforceabiltv. Ths Agreement ha been duly executed and delivered by the Borrower and constitutes, and
each other Loan Docuent when executed and delivered by the Borrower will constitute, a legal, valid and binding
obligation of the Borrower enforceable agaist the Borrower in accordance with its terms.
Section 3.04 Governental Approvals. No action, consent or approval of, registration or filing with or any other action
by any Governental Authority is or wil be requir in connection with the Tranactions, except such as have been made or
obtained and are in full force and effect.
Section 3.05 Financial Statements. The Borrower has heretofore fushed to the Ban its (a) consolidated balance
sheets and statements of income and statements of cash flow as of and for the fiscal year ended December 31, 2008, audited
by and accompanied by the opinon ofDeloitte & Touche LLP, independent public accountats, and (b) unaudited
consolidated balance sheets and statements of income and statements of cash flow as of and for the fiscal quaer ended
Septèmber 30,2009, certfied by one of its Financial Offcers. All such fiancial statements present fairly the fmancial
condition and results of operations of the Borrower and its consolidated subsidiares as of such dates and for such periods.
Such balance sheets and the notes
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thereto, together with the Borrower's Anual Report on Form 10-K for the fiscal year ended December 31, 2008, reflect all
liabilities, diect or contigent, of the Borrower and its consolidated Subsidiares as of the dates thereof which are material on
a consolidated basis. Such finacial statements were prepared in accordace with GAA applied (except as noted therein) on
a consistent basis.
Section 3.06 No Material Advere Chage. Except as disclosed in the Borrower's Anual Report on Form lO-K for the
fiscal year ended December 31,2008 and in any document filed afer December 3l, 2008, but prior to the date of ths
Agreement, pursuat to Section 13(a), 14 or 15(d) of the Securties Exchange Act of 1934, there has been no chage in the
business, assets, operations or fmancial condition of the Borrower and the Subsidiares, taen as a whole, since December 31,
2008, which could reasonably be expected to have a Material Adverse Effect. For the avoidace of doubt, the representation
set fort in this Section 3.06 is and will be made solely at and as of the Closing Date, at and as of the effective date of any
increase in the Commitments pursuant to Section 2.09(c) and at and as of the effective date of any extension of the Expiration
Date pursuat to Section 2. 19.
Section 3.07 Litigation: Compliance with Laws.
(a) Except as set fort in the Anual Report of the Borrower on Form 10-K for the year ended December 31,2008,
or in any document fied after December 31,2008, but prior to the date of ths Agreement pursuant to Section 13(a), 14 or 15
(d) of the Securties Exchange Act of 1934, there are not any actions, suits or proceegs at law or in equity or by or before
any Govemmental Authority now pending or, to the knowledge of the Borrower, theatened againt or affecting the Borrower
or any Subsidiar or any business, propert or rights of any such person (i) which involve any Loan Document or the
Tranactions 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 Subsidiares is in violation of any law, rule or regulation, or in default with
respect to any judgment, wrt, injunction or decree of any Governental 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 Subsidiares is engaged pricipally, or as one of its importt activities, in
the business of extendig credit for the purose of purchaing or carg Margin Stock.
(b) No par of the procee of any Loan will be used, whether diectly or indiectly, and whether imediately,
incidentaly or ultimately, (i) to purchae or car Margin Stock or to extend credit to others for the purose of purchaing or
caring Margin Stock or to refud indebtedness originally incured for such purose, or (ii) for any purpose which entals a
violation of, or which is inconsistent with, the provisions of the Regulations of the Board, including Regulation U or X.
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Section 3.09 Investment Company Act. The Borrower is not an "investment company" as defmed in, or subject to
regulation under, the Investment Company Act of 1940.
Section 3.10 No Material Misstatements. No information, report, fiancial statement, exhbit or schedule fushed by or
on behalf of the Borrower to the Admstrative Agent or any Ban in connection with the negotiation of any Loan Document
or included therein or delivered pursuant thereto contained contain or wil contain any material misstatement of fact or,
when considered together with all report theretofore fied with the Securties and Exchange Commission, omitted, omits or
wil omit to state any material fact necessar to make the statements therein, in the light of the circumstances under which
they were, are or wil be made, not misleadig.
Section 3. I I Employee Benefit Plan. Each of the Borrower and its ERISA Affiiates is in compliance in all material
respects with the applicable provisions of ERISA and the regulations and published interpretations thereunder. No Reportable
Event has occured as to which the Borrower or any ERISA Afliate was required to fie a report with the PBGC. The value
of the assets of each Plan is at least 80% of the "fudig taget" (as defmed in Code Section 430(d)(1)) of such Plan as of the
last anual valuation date applicable thereto.
Section 3.12 Envionmental and Safety Matters. Each of the Borrower and the Subsidiares has complied with all
Federal, state, local and other statutes, ordinances, orders, judgments, ruings and regulations relating to environmental
pollution or to environmental or nuclear regulation or contrl 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 Subsidiar has received
notice of any failure so to comply, except where noncompliance would not be reasonably likely to result in a Material
Adverse Effect. The Borrower's and the Subsidiares' plants do not maage any haardous wastes, haardous substaces,
hazardous materals, toxic substances, toxic pollutats or substaces similarly denominted as those terms or similar terms
are used in the Resource Conservation and Recovery Act, the Comprehensive Envionmental Response Compensation and
Liability Act, the Hazardous Materials Tranporttion 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 circumstaces involving envionmental pollution or containation or employee health or safety that could
reasonably be expected to result in a Material Adverse Effect. The representations and waranties set fort in ths
Section 3.12 are, however, subject to any matters, circumstaces or events set fort in the Borrower's Anual Report on
Form 10-K for the fiscal year ended December 31,2008 and in any document fied aftr December 31,2008, but prior to the
date of ths Agreement pursuant to Section 13(a), 14 or 15(d) of the Securties Exchage Act of 1934; provided, however,
that the inclusion of such matters, cirumstaces or events as exceptions (or any other exceptions contained in the
representations and waranties which refer to the Borrower's Anual Report on Form 10-K for the fiscal year ended
December 31, 2008 or in any document filed aftr December 31, 2008, but prior to the date of ths Agreement puruant to
Section 13(a), 14 or l5(d) of the Securties Exchange Act of 1934) shall not be constred to mean that the Borrower has
concluded that any such matter, cirumstace or effect is likely to result in a Material Adverse Effect.
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Section 3.13 Significant Subsidiares. Schedule 3.13 sets fort as of the date hereof a list of al Signicant Subsidiares
of the Borrower and the percentage ownership interest of the Borrower therein.
ARTICLE IV
CONDITIONS TO BORROWINGS AN EXTESIONS
Section 4.0 1 All Borrowigs. The obligations of the Ban to make Loan on the date of each Borrowing (including the
first Borrowing under ths Agreement and each Borrowig in which Loans ar refinanced with new Loan as contemplated
by Section 2.02(f)) are subject to the satisfaction of the followig conditions:
(a) The Admstrative Agent shall have received a notice of such Borrowing as required by Section 2.03.
(b) The representations and waranties set fort in Aricle II hereof (excluding, in the case of a refinancing of
Loans, the representations set fort in Section 3.07 and, in the case of any Borrowing (including each Borrowing in which
Loan are refinanced with new Loan) after the Closing Date, the representation set fort in Section 3.06) shall be tre and
correct in all material respects on and as of the date of such Borrowing with the same effect as though made on and as of such
date, except to the extent such representations and waranties expressly relate to an earlier date.
(c) The Borrower shall be in compliance with all the terms and provisions set fort herein and in each other Loan
Document on its par to be observed or performed, and at the tie of and imediately after such Borrowing no Event of
Default or Default shall have occured and be continuing.
Each Borrowig shall be deemed to constitute a representation and waranty by the Borrower on the date thereof as to the
matters specifed in paragraphs (b) and (c) of ths Section 4.0 l.
Section 4.02 Firt Borrowing. The obligations of the Ban to make Loan on the date of the first Borrowing under ths
Agreement are subject to the satisfaction of the following conditions:
(a) The Admstrative Agent shall have received each of the following, in form and substace satisfactory to it:
(i) Opinons of Davis Wright Tremaie LLP, counsel to the Borrower, Hawley Troxell Enns & Hawley
LLP, Idao counel to the Borrower, and Crowley Fleck PLLP, Montaa counel to the Borrower (or such other fin or fins
approved by the Admnistrative Agent), each dated the date of ths Agreement and addressed to the Adminstrative Agent and
the Ban, with respect to such mattrs relatig to the Borrower and the Loan Documents as the Admstrative Agent or any
Ban may reasonably request. The Borrwer hereby intrcts such counel to deliver such opinon to the Admstrative
Agent.
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(n) Evidence satisfactory to the Administrtive Agent and set fort on Schedule 4.02(a)(ii) tht the Borrower
shall have obtained all consents and approvals of, and shall have made all fiings and registrations with, any Governental
Authority required in order to consuate the Transactions, in each case without the imposition of any condition which, in
the judgment of the Ban, could adversely affect their rights or interests under the Loan Documents.
(iii) A copy of the certficate or aricles of incorporation, includig all amendments thereto, of the Borrower,
certfied as of a recent date by the Secreta of State of the state of its organization, and a certificate as to the good stading
of the Borrower as of a recent date, from such Secreta of State.
(iv) A certficate of the Secreta or Assistat Secreta of the Borrower dated the date of ths Agreement
and certing (A) tht attched thereto is a tre and complete copy of the bylaws of the Borrower as in effect on the date of
ths Agreement and at all ties since a date prior to the date of the resolutions described in clause (B) beiow, (B) that
attched thereto is a tre and complete copy of resolutions duly adopted by the board of directors of the Borrower authorizig
the execution, delivery and pedormance of the Loan Documents and borrowigs hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full force and effect, (C) tht the certificate or arcles of incorporation of
the Borrower have not been amended since the date of the last amendment thereto shown on the certcation with respect
thereto fushed pursuant to clause (iii) above, and (D) as to the incumbency and specimen signatue of each offcer
executig any Loan Document or any other document delivered in connection therewith on behalf of the Borrower.
(v) A certficate of another offcer of the Borrower as to the incumbency and specimen signatue of the
Secreta or Assistat Secreta executing the certficate pursuant to clause (iv) above.
(vi) A certificate, dated the date of ths Agreement and signed by a Financial Offcer of the Borrower,
confining compliance with the conditions precedent set fort in paragraphs (b) and (c) of Section 4.01.
(vii) Evidence satisfactory to the Adminstrtive Agent tht ths Agreement, the Supplemental Indentue, the
Bond Delivery Agreement, the First Mortgage Bond and any Notes requested by the Ban for issuance on the date of this
Agreement have been executed and delivered by all paries thereto.
(viii) A copy of the Firt Mortgage, certfied by the Secreta or Assistat Secreta of the Borrower.
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(ix) A copy of title inance policy No. NSL 31426-SEA issued by Firt American Title Insurance
Company, together with copies of all endorsements thereto (includig an endorsement extendig the coverage of such policy
to the Supplementa Indentue and the First Mortgage Bond), naming the trtee under the Firt Mortgage as the inurd,
insurig the Borrower's title to the real propert subject to the Lien of the Firt Mortgage, and the validity and first priority of
the Lien of the Firt Mortgage (subject to Liens permitted to exist by the terms of the First Mortgage), in an amount not less
than $785,000,000.
(x) Such other documents as the Adminstrtive Agent, the Ban or their respective legal counel may
reasonably request.
(b) Al fees payable by the Borrower to the Adminstrative Agent, the "Co-Lead Argers" identified on the cover
page of ths Agreement, the Ban or any of their Afiates on or prior to the date of ths Agreement with respect to ths
Agreement, and all amounts payable by the Borrower puruant to Section i 0.05 for which invoices have been delivered to the
Borrower on or prior to such date, shal have been paid in full or arangements satisfactory to the Admistrtive Agent shall
have been made to cause them to be paid in full concurently with the disbursement of the proceeds of any Borrowig to be
made on such date.
(c) All legal matters incident to the Loan Documents and the transactions contemplated thereby shall be reasonably
satisfactory to the Adminstrative Agent, the Ban and their respective legal counsel.
Section 4.03 Extensions. Each extenion of the Expiration Date puruat to Section 2. 19 is subject to the satisfaction of
the following additional conditions on the effective date of such extension:
(a) No Loan shall be outstading on the date of such extension.
(b) The representations and waranties set fort in Arcle II sha be tre and corrct in all material respects on and
as of the date of such extension with the same effect as though made on and as of such date, except to the extent such
representations and waranties expressly relate to an ealier date.
(c) The Borrower shall be in compliance with all the terms and provisions set fort herein and in each other Loan
Document on its par to be observed or performed and at the tie of and imediately afer such extension no Event of
Default or Default shall have occured and be continuing.
Each extension of the Expiration Date shall be deemed to constitute a representation and waranty by the Borrower on the
date thereofas to the matters specified in paragraphs (b) and (c) of ths Section 4.03.
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ARTICLE V
AFFIRTI COVEANS
The Borrower covenants and agrees with each Ban that so long as any Commitment shall remain in effect or the
pricipal of or interest on any Loan, any Fees or any other amounts payable under any Loan Document shall be unpaid:
Section 5.01 Existence; Businesses and Properties.
(a) The Borrower shall, and shall cause each Significant Subsidiar to, do or cause to be done all thgs necessar
to preserve, renew and keep in full force and effect its legal existence, except as otherwse expressly permitted under
Section 6.03.
(b) The Borrower shall, and shall cause each Significant Subsidiar to, (i) do or cause to be done all thgs
necessar to obtain, preserve, renew, extend and keep in full force and effect the rights, licenses, permits, franchises,
authoriations, patents, copyrghts, trademarks and trade names utilized in the conduct of its business, except where the
failur so to obta, preserve, renew, extend or mainta any of the foregoing would not result in a Material Adverse Effect;
(ii) maita and operate its business in substatially the maner in which it is presently conducted and operated, except as
otherwise expressly permitted under this Agreement; (iii) comply in all material respects with all applicable laws, rules,
regulations and orders of any Governental Authority, whether now in effect or hereafter enacted if failure to comply with
such requirements would result in a Material Adverse Effect; and (iv) at all times maita and preserve all propert material
to the conduct of its business and keep such propert in good repair, workig order and condition and from time to tie
make, or cause to be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto
necessar in order tht the business cared on in connection therewith may be properly conducted at all ties; provided,
however, that the Borrower or any Signficant Subsidiar may cause the discontiuance of the operation or a reduction in the
capacity of any of its facilities, or any element or unit thereof, including real and persona propertes, facilties, machiery
and equipment, (A) if, in the judgment of the Borrower or such Significant Subsidiar, it is no longer advisable to operate the
same, or to operate the same at its former capacity, and such discontinuace or reduction would not result in a Material
Adverse Effect, or (B) if the Borrower or a Significant Subsidiar intends to sell and dispose of its interest in the same in
accordace with the terms of ths Agreement and with a reasonable tie shall endeavor to effectuate the same.
Section 5.02 Insuance.
(a) The Borrower shall, and shall cause each Significant Subsidiar to, (i) maintain insurance, to such extet and
againt such risks, as is customar with companies in the same or similar businesses and owng similar properties in the
same general area in which it operates and (ii) mainta such other inurance as may be requird by law. All insurance
required by ths Section 5.02 shall be maintained with fmancially sound and reputable insurers or though self-insurce;
provided, however, tht the porton of such insurance constitutig self-insurance shall be comparable to that usually
maintained by companes engaged in the same or similar
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businesses and owng similar properties in the same genera area in which the Borrower or such Significant Subsidiar, as
applicable, operates and the reserves maitaed with respect to such self-inured amounts ar deemed adequate by its offcer
or offcers responsible for inurance matters.
Section 5.03 Taxes and Obligation. The Borrower shall, and shal cause each Signcant Subsidiar to, pay and
discharge promptly when due all taes, assessments and governental chages or levies imposed upon it or upon its income
or profits or in respect of its propert, before the same shal become delinquent or in default, as well as all lawfl clais for
labor, materials and supplies or otherwse which, ifunpaid, might give rise to a Lien upon such propertes or any par thereof;
provided, however, that such payment and discharge shall not be required with respect to any such ta, assessment, charge,
levy or clai 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 GAA, have set aside on its books adequate reserves with respect thereto.
Section 5.04 Financial Statements. Report. etc. The Borrower shal fuish to the Administrative Agent and each Ban:
(a) with l05 days aftr the end of each fiscal year, consolidated and consolidatig 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 Subsidiares, in each case as of the close of such fiscal year, and the results of each of their operations
durg such year, all (A) in the case of Avista Utilities, certed by one of the Borrower's Financial Offcers as fairly
presenting the financial condition and results of operations of Avista Utiities in accordace with GAA consistently applied
and (B) in the case of the Borrower and its consolidated subsidiares, audited by Deloitte & Touche LLP or other independent
public accountats of recogned national stadig acceptable to the Required Ban and accompaned by an opinon of such
accountats (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 GAA consistently applied;
(b) within 50 days afr the end of each of the first thee fiscal quarers of each fiscal year, consolidated and, to the
extent otherwse available, consolidatig balance sheets and related statements of income and statements of cash flow,
showing the fincial condition of (i) Avista Utiities and (ii) the Borrower and its consolidated subsidiares, in each case asof the close of such fiscal quar, and the results of each of their operations durg such fiscal quaer and the then elapsed
portion of the fiscal year, all certfied by one of its Financial Offcer as fairly presentig the financial condition and results
of operations of Avista Utilties or the Borrower on a consolidated basis, as applicable, in accordace with GAA
consistently applied, subject to normal year-end audit adjustments;
(c) concurently with any delivery of ficial statements under (a) or (b) above, (i) a certificate of the relevant
accounting fin opining on or certifyg such statements or Fincial Offcer (which certificate, when fushed by an
accounting fin, may be limted to
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accountig mattrs and disclai responsibilty for legal interpretations) certifyg that to the knowledge of the accounting
fin or the Fincial Offcer, as the case may be, no Event of Default or Default has occured or, if an Event of Default or
Default has occured, specifyg the natue and extent thereof and any corrective action taen or proposed to be taen with
respect thereto, and (ii) a certificate of a Financial Offcer of the Borrower setting fort 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 fmancial
statements;
(d) promptly afr the same become publicly available, copies of all periodic and other report, proxy statements
and other materials fied by it with the Securties and Exchange Commission, or any Governental Authority succeeding to
any of or all the fuctions of said Commission, or with any nationa securities exchage, or distrbuted to its shareholders, as
the case may be; and
(e) promptly, from tie to tie, such other inormation regarding the operations, business affairs and fmancial
condition of the Borrower or any Significant Subsidiar, or compliance with the terms of any Loan Document, as the
Admstrative Agent or any Ban may reasonably request.
Section 5.05 Litigation and Oter Notices. The Borrower shall fush to the Adminstrative Agent and each Ban
prompt notice of the following:
(a) any Event of Default or Default, specifyg the natu and extent thereof and the corrective action (if any)
proposed to be taen with respect thereto;
(b) the filing or commencement of, or any wrtten that or notice of intention of any person to fie or commence,
any action, suit or proceedig, whether at law or in equity or by or before any Governental Authority, againt the Borrower
or any Subsidiar 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 Advers Effect.
Section 5.06 ERISA. The Borrower shall, and shall cause each Signficant Subsidiar to, comply in all material respects
with the applicable proviions of ERISA, and the Borrower shall fush to the Adminstrative Agent and each Ban (a) as
soon as possible, and in any event with 30 days afer any Responsible Offcer of the Borrower or any ERISA Affliate
either knows or has reason to know that any Reportble Event has occured that alone or together with any other Reportble
Event could reasonably be expected to result in liabilty of the Borrwer to the PBGC in an aggregate amount exceeding
$25,000,000, a statement of a Financial Offcer of the Borrower settg fort details as to such Reportble Event and the
action proposed to be taen with respect thereto, together with a copy of the notice, if any, of such Reportble Event given to
the PBGC, (b) as soon as possible, and in any event with 30 days afer any Responsible Offcer of the Borrower or any
ERISA Afiliate either knows or ha reason to know that the value of the assets of any Plan is less than 80% of the "fuding
taget" (as defied in Code Section 430(d)(1)) of such Plan as of the last anual valuation date applicable thereto, a
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statement of a Fincial Offcer of the Borrower settg fort detals as to such event, (c) promptly af receipt thereof, a
copy of any notice the Borrower or any ERISA Afliate may receive from the PBGC relatig to the intention of the PBGC to
terminate any Plan or Plan (other than a Plan maitaed by an ERISA Afiate which is considered an ERISA Afliate
only pursuant to subsection (m) or (0) of Section 414 of the Code) or to appoint a trstee to adminster any Plan or Plan and
(d) with 10 days aftr the due date for fiing with the PBGC pursuant to Section 430(k) of the Code of a notice of failure to
make a required intallment or other payment with repect to a Plan, a statement of a Financial Offcer of the Borrower
settig fort detals as to such failur and the action proposed to be taen with respect thereto, together with a copy of such
notice given to the PBGC.
Section 5.07 Maintainig Records; Access to Propertes and Inpections. The Borrower shall, and shall cause each
Significant Subsidiar to, (a) maintan all financial records in accordace with GAA and (b) permit any representatives
designated by the Adminstrative Agent or any Ban to visit and inpect its financial records and properties at reasonable
ties and as often as requested and to make extracts from and copies of such fincial records, and perit any
representatives designated by the Adminstrative Agent or any Ban to dicuss its afairs, finances and condition with its
chieffinancial officer, or other person designated by the chieffinancial offcer, and independent accountats therefor.
Section 5.08 Use of Proceeds. The Borrower shall use the proceeds of the Loans only for the puroses set fort in the
preamble to ths Agreement.
ARTICLE VI
NEGATI COVEANS
The Borrower covenants and agrees with each Ban that so long as any Commitment shal remain in effect or the
pricipal of or interest on any Loan, any Fees or any other amounts payable under any Loan Document shall be unpaid:
Section 6.01 Liens. The Borrower shall not create, incur, assume or permit to exist any Lien on any propert or assets
(including stock or other securties of any person, includig any Subsidiar) now owned or hereafer acquired by it or on any
income or revenues or rights in respect of any thereof, except:
(a) Liens on propert or assets of the Borrower create by the documents, instrents or agreements existig on
the date hereof and which are listed as exhbits to the Borrower's Anua Reprt on Form lO-K for the fiscal year ended
December 31, 2008, to the extent tht such Liens secur only obligations arsing under such existig documents, agreements
or instrents and the amount of Indebtedness secur thereby does not exceed the amount thereof as of the date hereof as
set fort on Schedule 6.01;
(b) any Lien existig on any propert 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 propert or assets of the Borrower;
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(c) the Lien of the First Mortgage and the Lien of any collateral trst mortgage or similar intrent which would
be intended to eventually replace (in one tranaction or a series of tranactions) the First Mortgage (as amended, modified or
supplemented from tie to tie, "Collateal Trust Mortgage") on properties or assets of the Borrower to secur 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 permittd
to be issued under the First Mortgage;
(d) Liens not prohibited under the Firt 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 Trut Mortgage);
(e) Liens for taes, assessments or governenta charges not yet due or which are being contested in compliance
with Section 5.03;
(t) carers', warehousemen's, mechanc's, materialen's, repaien's or other lie Liens arsing in the ordiar
course of business and securg obligations that are not due or which are being contested in compliance with Section 5.03;
(g) pledges and deposits made in the ordiar course of business in compliance with workmen's compensation,
unemployment insurance and other social securty laws or regulations;
(h) Liens incured or created in connection with or to secure the performance of bids, tenders, trde contracts (other
than for Indebtedness), leaes, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a
like natue incured in the ordinar course of business;
(i) zonig restrctions, easements, rights-of-way, restrctions on use of real prope and other similar
encumbrances incurd in the ordinar coure of business which, in the aggregate, are not substatial in amount and do not
materially detract from the value of the propert subject thereto or interfere with the ordinar conduct of the business of the
Borrower or any of its Subsidiares;
(j) Liens (i) which secure obligations not assued by the Borrower, (ii) on account of which the Borrower has not
and does not expect to pay interest diectly or indiectly and (iii) which exist upon real estate or rights in or relatig to real
estate in respect of which the Borrower ha a right-of-way or other easement for puroses of substations or transmission or
distrbution facilities;
(k) rights reserved to or vested in any federa, state or local governental body or agency by the terms of any right,
power, franchise, grat, license, contract or permit, or by any provision of law, to recapture or to purchase, or designate a
purchase of or order the sale of, any propert of the Borrower or to termnate any such right, power, frchise, grat, licéne,
contract or permt before the expirtion thereof;
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(1) Liens of judgments covered by inurance, or upon appeal and covered by bond, or to the extent not so covered
not exceedig at one tie $40,000,000 in aggregate amount;
(m) any Lien, moneys suffcient for the dicharge of which shal have bee deposited in trt with the trtee or
mortgagee under the instrent evidencing such Lien, with irevocable authority of such trstee or mortgagee to apply such
moneys to the dischage of such Lien to the extent required for such purose;
(n) rights reserved to or vested in any federal, state or local governental body or agency or other public authority
to control or regulate the business or propert of the Borrower;
(0) any obligations or duties affectig the propert of the Borrower to any federal, state or local governental body
or agency or other public authority with respect to any authorization, permt, consent or license of such body, agency or
authority, given in connection with the purchase, constrction, equipping, testig and operation of the Borrower's utilitypropert;
(P) with respect to any propert which the Borrower may hereafr acquire, any exceptions or reservations
therefrom existing at the tie of such acquisition or any term, conditions, agreements, covenats, exceptions and
reservations expressed or provided in the deed or other intrents, respectively, under and by vire of which the Borrower
shall hereafer acquire such propert, none of which terms, conditions, agreements, covents, exceptions and reservations
materially impairs the use of such propert for the puroses for which it is acquired by the Borrower;
(q) leases and subleaes entered into in the ordiar course of business;
(r) baner's Liens and other Liens in the nature of a right of setoff;
(s) renewals, replacements, amendments, modifications, supplements, refiancings or extensions of Liens set fort
in clauses (a)-(d) above to the extent that the pricipal amount of Indebtedness secured by such Lien imediately prior
thereto is not increased and such Lien is not extended to other propert;
(t) security deposits or amounts paid into trst fuds for the reclamation of ming propertes;
(u) restrctions on tranfer or use of propertes and assets, first rights of refual, and rights to acquie propertes and
assets granted to others;
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(v) non-consensua equitable Liens on the Borrower's tenant-in-common or other interest in joint projects;
(w) Liens on the Borrower's tet-in-common or other interest in joint projects incurred by the project sponsor
without the express consent of the Borrower to such incurence; and
(x) Liens on receivables and related propertes or interests therein.
Section 6.02 Sale-Leaseback Tranactions. The Borrower shall not enter into any Sale-Leaeback if as a result thereof
the aggregate outstading pricipal amount of Attbutable Debt outstading in connection with all Sale-Leasebacks entered
into afer the date hereof would exceed 5% of the tota tagible assets of A vista Utilities as of the date of the fmancial
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
Subsidiar (without the consent of the Required Ban, not to be uneasonably witheld) to, merge with or into or
consolidate with any other person, or purchase, lease or otherwise acquire (in one tranaction or a series of tranactions) all or
substatially all of the assets of any other person (whether diectly by purchase, lease or other acquisition of all or
substatially all of the assets of such person or indiectly by purchase or other acquisition of all or substatially all of the
capital stock of such other person) other th acquisitions in the ordinar course of the Borrower's or such Signficant
Subsidiar's business, except that, if at the time thereof and imediately afr givig effect thereto no Event of Default or
Default shall have occured and be continuing, (a) the Borrower or any Significant Subsidiar may merge with or into or
consolidate with the Borrower or any Subsidiar, provided that, in any transaction involvig the Borrower, the Borrower is
the survving person, (b) the Borrower or any Significant Subsidiar may purchase, lease or otherwise acquire frm any
Subsidiar all or substatially 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 Afliate of such other person, entiely or priarly
consists of an electrc or gas utility business, (A) if the Borrower is the suving person, then, imediately aft such merger
or consolidation, the Senior Debt Rating. assigned to the applicable Indebtedness of the Borrower by two nationally
recognied credit-rating agencies shall be equal to or higher than Lowest Investment Grade and (B) if the Borrwer is not the
surivig person, (I) the surving person shall assume in wrtig the obligations of the Borrower under ths Agreement and
any other Loan Documents and (2) imediately aft such merger or consolidation, the ratings assigned to the most senior
secured public Indebtedness of the survig person by two nationally recognzed credit ratig agencies shall be equal to or
higher than the ratings comparable to the Second Lowest Investment Grade, and (ii) in the case where such other person's
business does not entirely or priarily consist of an electrc or gas utiity business, (A) the assets of such person at the tie of
such consolidation or merger do not exceed 10% of the total assets of the Borrower and its Subsidiares afr givig effect to
such merger or consolidation, computed and consolidated in accordance with GAA consistently applied and (B) if the
Borrower is not the surivig person, the surving person shall assume in wrting the obligations of the Borrower under ths
Agreement and any other Loan Documents, (d) the Borrower may purchase, lease or otherwse
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acquie all or substatially all of the assets of any other person (includig by purchase or other acquisition of all or
substatially all of the capital stock of such person) so long as (i) the assets being purchased, leased or acquired (or the assets
of the person whose capita stock is being acquired) entiely or priarly consist of electrc or gas utility assets or (ii) in the
case where the assets being purchaed, leased or acquired (or the assets of the person whose capital stock is being acquired)
do not entiely or priarly consist of electrc or gas utility assets, the assets being purchaed, leased or acquired (or the
Borrower's proportonate share of the assets of the person whose capita stock is being acquired) do not exceed 10% of the
total assets of the Borrower and its Subsidiares, afer giving effect to such purchase, lease or acquisition, computed and
consolidated in accordace with GAA consistently applied, (e) any Signficant Subsidiar may merge with or into or
consolidate with any other person so long as the assets of such person at the tie of such merger or consolidation do not
exceed LO% of the tota assets of the Borrower and its Subsidiares after givig effect to such merger or consolidation,
computed and consolidated in accordace with GAA consistently applied, and (t) any Significant Subsidiar may purchae,
lease or otherwse acquire all or substatially all of the assets of any other peron (includig by purchase or other acquisition
of all or substatially all of the capital stock of such person) so long as the assets being purchase, leased or acquired (or the
Signicant Subsidiar's proportonate share of the assets of the person whose capita stok is being acquid) do not exceed
lO% of the total assets of the Borrower and its Subsidiares after giving effect to such purchase, lease or acquisition,
computed and consolidated in accordace with GAA consistently applied; provided, however, that notwithtading
anytg in ths Section 6.03 to the contr, ths Section 6.03 shall not be deemed to prohibit any merger, consolidation or
acquisition involving a Significant Subsidiar (and not also the Borrower) if, afer giving effect to the consumation of such
transaction, such Significant Subsidiar shall have or be deemed to have a ratio of tota long-term Indebtedness to tota
stockholders' equity equal to or less than l.5 to L.O.
Section 6.04 Disposition of Assets. The Borrower shall not, and shall not permit any Significant Subsidiar (without the
consent of the Required Ban, not to be unreaonably witheld) to, sell, lease, transfer, assign or otherwise dispose of any
assets or any interest therein (whether now owned or hereaer acquired), except (a) dispositions of obsolete or retird
proper not used or useful in its business, (b) grts of Lien by the Borrwer permitted under Section 6.0 1 and grants of
Liens by Significant Subsidiares, (c) disposition by the Borrower of its interest in the Washington Public Power Supply
System Nuclear Project NO.3 in accordace with the settement agreement among the Borrower, the Washigton Public
Power Supply System and Bonneville Power Admstrtion, 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 Tranactions,
(e) disposition by the Borrower of its interests in the Colstrp Project and related assets, (t) disposition of receivables and
related propertes or interests therein, and (g) other dispositions of assets (not otherwise permitted by clauses (a)-(t) of ths
Section) made in the ordiar coure of business not exceeding in any fiscal year 5% of the assets of the Borrower and its
Subsidiares as of the end of the prior fiscal year, computed and conslidated in accordance with GAA consistently applied,
and (h) other dispositions of asets (not otherwse permittd by clauses (a)-(t) of ths Section) not exceeding in any fiscal year
i 0% of the assets of the Borrower and its Subsidiares as of the end of the prior fiscal year, computed and consolidated in
accordance with GAA consistently applied; provided,
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however, tht notwthstading anytg in ths Section 6.04 to the contrar, this Section 6.04 shall not be deemed to prohibit
any disposition by a Significant Subsidiar if, afr givig effect to the consumation of such tranaction, such Signcant
Subsidiar shall have or be deemed to have a ratio of total long-term Indebtedess to tota stockholders' equity equal to or
less than 1.5 to i .0.
Section 6.05 Consolidated Tota Debt to Consolidated Tota Capitaliation Ratio. The Borrower shall not perit the
ratio of Consolidated Tota 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 permt the ratio of Avista Utilties
EBITDA to Avista Utilties Interest Expense for any four-fiscal-quarr period to be less than 1.6 to 1.
Section 6.07 Public Utility Regulatory Borrowing Limts. The Borrower shall not incur actual borrowings or
commitments or issued and outstading debt of the Borrower in excess of the amount authoried by statute or by orders of
public utility commssions, as in effect from time to tie.
Section 6.08 Investments. The Borrower shal not make any new Investments in any Subsidiar (other th a Financing
Subsidiar), except for Investments in an aggregate amount (calculated, in the case of any acquisìtion or Investment, based
on the amount of consideration payable, and obligations incured, by the Borrower for such acquisition or Investment) not
exceeg $75,000,000 in any fiscal year of the Borrower, net of any distrbutions or other amounts received by the Borrower
durg such fiscal year on Investments in such Subsidiares.
ARTICLE VII
EVEN OF DEFAULT
In case of the happening (and durng the contiuace) of any of the following events ("Events of Defaulf'):
(a) any reresentation or waranty made or deemed made in or in connection with any Loan Document or the
Borrowings, or any representation or warty contained in any certficate or other document fushed in connection with or
pursuant to any Loan Document, shall prove to have been false or misleadig in any material respect when so made or
deemed made;
(b) default shall be made in the payment of any pricipal of any Loan when and as the same shall become due and
payable, whether at the scheduled matuty date thereof or at a date fied for prepayment thereof or by acceleration thereof or
otherwse;
(c) default shall be made in the payment of any interest on any Loan 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 unemedied for a period of five Business Days;
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(d) default shal be made in the due observance or performance by the Borrower of any covenant, condition or
agreement contaed in Section 5.01(a), 5.05, 5.07(b) or 5.08 or in Arcle VI;
(e) default shall be made in the due obserance or performce by the Borrower of any covenat, condition or
agreement (other than those specified in (b), (c) or (d) above) contaed in any Loan Document, and such default shall
contiue unemedied for a period of 30 days after notice thereof from the Adminstrative Agent or any Ban to the Borrower;
(f) the Borrower or any Signcant Subsidiar shall (i) fail to pay any pricipal or interest, regardless of amount,
due in respect of any Indebtedness when the aggregate unpaid pricipal 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
intrent evidencing or governg any such Indebtedness if the effect of any failure referred to in ths clause (ii) is to cause,
or to permit the holder or holders of such Indebteess or a trstee on its or their behalf (with or without the giving of notice,
the lapse of tie or both) to cause, such Indebtedess to become due prior to its stated matuty;
(g) an involunta proceedig shall be commenced or an involunta petition shall be fied in a cour of competent
jursdiction seeking (i) relief in respect of the Borrwer or any Significant Subsidiar, or of a substatial par of the propert
or assets of the Borrower or a Significant Subsidiar, under Title 1 1 of the United States Code, as now constituted or
hereaer amended, or any other Federal or state banptcy, insolvency, receivership or similar law, (ii) the appointment of a
receiver, trstee, custodian, sequestrator, conservator or similar offcial for the Borrower or any Significant Subsidiar or for
a substatial par of the propert or assets of the Borrower or a Signifcant Subsidiar or (iii) the windig-up or liquidation of
the Borrower or any Signficant Subsidiar; and such proceedig or petition shall contiue undismissed, or an order or decree
approvig or orderig 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 Signficant Subsidiar shall (i) voluntaly commence any proceeding or fie any petition
seekig relief under Title i 1 of the United States Code, as now constituted or hereafter amended, or any other Federal or state
banptcy, inolvency, receivership or simar law, (ii) consent to the institution of, or fail to contest in a tiely and
appropriate maner, any proceeding or the filig of any petition described in (g) above, (iii) apply for or consent to the
appointment of a receiver, trstee, custodian, sequestrator, conservator or similar offcial for the Borrower or any Signficant
Subsidiar or for a substatial par of the propert or assets of the Borrower or any Signficant Subsidiar, (iv) fie an answer
admittg the material allegations of a petition filed agaist it in any such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) become unable, admit in wrting its inability or fail generally to pay its debts as they become due or
(vii) tae any action for the purose of effecting any of the foregoing;
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(i) a fmaljudgment or judgments shall be rendered agait the Borrower, any Signficant Subsidiar 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 inurance, and the same shall remain undischarged for a period of 30 consecutive days durg which execution
shall not be effectively stayed, or any action shall be legally taen by a judgment creditor to levy upon assets or properties of
the Borrower or any Significant Subsidiar to enforce any such judgment;
(j) a Reportble Event or Reprtble Events, or a failure to make a required intallment or other payment (within
the meag of Section 430(k)(1) of the Code), shall have occured with respect to any Plan or Plans that reasonably could be
expected to result in liabilty of the Borrower to the PBGC or to any Plan or Plans in an aggregate amount exceedg
$25,000,000, or the value of the assets of any Plan is less than 80% of the "fuding taget" (as defined in Code Section 430
(d)( I)) of such Plan as of the last anual valuation date applicable thereto, and within 30 days aftr the reportg of any such
Reportble Event to the Adminstrative Agent or after the receipt by the Adminstrative Agent of a statement required
pursuant to Section 5.06, the Admistrtive Agent shall have notified the Borrower in wrtig that (i) the Required Ban
have made a determintion that, on the basis of such Reportble Event or Reportble Events, such failure to make a required
instalment or other payment or the fact that the value of the assets of a Plan is less than 80% of the "fuding taget" (as
defined in Code Section 4 30( d)( I)) of such Plan as of the last anual valuation date applicable thereto, there are reasonable
grounds (A) for the termation of any such Plan by the PBGC, (B) for the appointment by the appropriate United States
Distrct Cour of a trstee to adminster any such Plan or (C) for the imposition of a Lien in favor of any such Plan, and (ii) as
a result thereof an Event of Default exists hereunder; or a trste shall be appointed by a United States Distrct Cour to
admnister any such Plan; or the PBGC shall intitute proceedings to terminate any such Plan;
(k) any Loan Document, at any tie 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 jursdiction to be null and void, invalid or unenforceable in any
respect; or the Borrower denies that it has any or fuer liability or obligation under any Loan Document, or purport to
revoke, terminate or rescind any Loan Document;
(l) a Change in Control shall occur;
(m) the Lien purported to be created in any substatial porton of the propert of the Borrower purortd to be
made subject thereto puruant 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 Firt Mortgage) securng the obligations of the Borrower under the Firt
Mortgage (including the obligations of the Firt Mortgage Bond), and such failure shall constitute or have resulted in a
"Completed Default" under the Firt Mortgage; or
(n) the mortgage title inurce policy referred to in Section 4.02(a)(ix) or any other mortgage title inurance policy
purorted to be issued for the benefit of the trstee under the First Mortgage, at any time afer its issuance and for any reason,
shall cease to be in full force
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and effect, or is declared by a cour of competent jursdiction to be null and void, invalid or unenorceable in any respect; or
the issuer of such policy denies tht it ha any or fuer liability or obligation under such policy, or purort to revoke,
terminate or rescind such policy;
then, and in every such event (other th an event with respect to the Borrower described in paragraph (g) or (h) above), and
at any tie thereafer durg the contiuance of such event, the Admtrative Agent, at the request of the Required Ban,
shall, by notice to the Borrower, tae any or all of the following actions, at the same or dierent ties: (i) termate fortwith
the Commitments, (ii) declare the Loan then outstadig to be fortwith due and payable in whole or in par, whereupon
(A) the Commitments wil automatically be terminted and (B) the pricipal of the Loans so declared to be due and payable,
together with accrued interest theren and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder
and under any other Loan Document, shall become fortwith due and payable, without presentment, demand, protest or any
other notice of any kid, all of which ar hereby expressly waived by the Borrower, anyting contained herein or in any other
Loan Document to the contrar notwithtading, and (iii) deliver to the Borrower notice demadig 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 pricipal of the Loan then outstading, 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 kid, all of which
are hereby expressly waived by the Borrower, anytg contained herein or in any other Loan Document to the contrar
notwithstading.
ARTICLEVll
RELEASE OF COLLATERA
Section 8.01 Release upon Commitment Reduction. In connection with any permanent reduction in the Commitments
pursuant to Section 2.09(b), the Admstrative Agent shal surender to, or upon the order of, the Borrower the First
Mortgage Bond then held by the Admstrative Agent againt receipt by the Admstrative Agent of a substitute First
Mortgage Bond in an amount equal to the total Commtments aftr giving effect to the reduction.
Section 8.02 Release upon Termination and Repayment. The Adminstrtive Agent shall surnder to, or upon the order
of, the Borrower all First Mortgage Bonds then held by it puruat hereto at the fit tie at which the Commtments shall
have been terminated and all amounts owig under ths Agreement shall have been paid in full.
ARTICLE IX
THE ADMISTRTI AGENT
Section 9.01 Appointment and Powers. In order to expedite the varous tranactions contemplated by the Loan
Documents, Union Ban is hereby appointed to act as Admstrtive Agent on behalf of the Ban. Each of the Ban
hereby irevocably authorizes and directs the Adminstrative Agent to tae such action on behalf of such Ban under the
terms and provisions of the Loan Documents, and to exercise such powers thereunder as are specifically delegated to
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or required of the Admistrative Agent by the terms and provisions thereof, together with such powers as are reasonably
incidental thereto. The Adminstrative Agent is hereby expressly authorized on behalf of the Ban, without hereby limtig
any implied authority, (a) to receive on behalf of each of the Ban any payment of pricipal of or interest on the Loans
outstadig hereunder and all other amounts accrued under the Loan Documents paid to the Adminstrative Agent, and to
distrbute to each Ban its proper shae of all payments so received as soon as practicable; (b) to give notice promptly on
behaf of each of the Ban to the Borrower of any Event of Default of which the Administrative Agent has actu knowledge
acquied in connection with its agency hereunder; and (c) to distrbute promptly to each Ban copies of all notices,
agreements and other material as provided for in the Loan Documents as received by such Administrative Agent.
Section 9.02 Limtation on Liabiltv. Neither the Adminstrative Agent nor any of its directors, offcers, employees or
agents shal be liable to any Ban as such for any action taen or omitted by any of them under the Loan Documents except
for its, his or her own gross negligence or wilful misconduct, or be responsible for any statement, waranty or representation
therein or the contents of any document delivered in connection therewith or be required to ascertin or to make any inquir
concerng the performance or observance by the Borrower of any of the terms, conditions, covenants or agreements of the
Loan Documents. The Admnistrative Agent shall not be responsible to the Ban for the due execution, genuineness,
validity, enforceabilty or effectiveness of the Loan Documents or any other instrent to which reference is made therein.
The Adminstrative Agent shall in all cases be fully protected in acting, or refrining from acting, in accordace with wrtten
instrctions signed by the Required Ban, and, except as otherwse specifically provided herein, such instrctions and any
action taen or failure to act purant thereto shall be bindig on all the Ban. The Administrtive Agent shall, in the
absence of knowledge to the contrar, 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 Adminstrative Agent nor any of its
diectors, offcers, employees or agents shall have any responsibilty to the Borrower on account of the failure or delay in
performance or breach by any Ban of any of its obligations under the Loan Documents or to any Ban on account of the
failure of or delay in performance or breach by any other Ban or the Borrower of any of their respective obligations
thereunder or in connection therewith. The Adminstrative Agent may execute any of its duties under the Loan Documents by
or though agents or attorneys selected by it using reasonable car and shall be entitled to advice of counsel concerng all
matters pertg to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys selected and authoried to act by it with reasonable care unless the daage complained of diectly results
from an act or failure to act on the par of the Administrative Agent which constitutes gross negligence or wilful misconduct.
Delegation to an attorney for the Adminstrative Agent shall not release the Adminstrative Agent from its obligation to
perform or cause to be performed the delegated duty. The Adminstrative Agent shall be entitled to advice of legal counel
selected by it with respect to all matters arsing under the Loan Documents and shall not be liable for any action taen or
suffere in good faith by it in accordace with the advice of such counsel.
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Section 9.03 Other Tranactions with Borrower. The Admstrative Agent and its Afiates may accept deposits from,
lend money to and generally engage in any kid of business with the Borrower or any Afilate thereof as if it were not the
Adminstrative Agent.
Section 9.04 Reimbursement; Indemncation. Each Ban agrees (a) to reimbure the Adminstrtive Agent in the
amount of such Ban's Pro Rata Share of any expenses incurrd for the benefit of the Ban by the Adminstrative Agent,
includig reasonable counel fees and compensation of agents and employees paid for services rendered on behalf of the
Ban, to the extent not reimbursed by the Borrower and (b) to indemnfy and hold haress the Adminstrative Agent and
any of its directors, offcers, employees or agents, on demand, in the amount of its Pro Rata Share, from and against any and
all liabilities, obligations, losses, daages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kid
or natue whatsoever which may be imposed on, incured by or assert agait it in its capacity as the Admstrative Agent
or any of them in any way relatig to or arsing out of the Loan Documents or any action taen or omitted by it or any of
them under the Loan Documents, to the extent not reimbured by the Borrower; provided, however, tht no Ban shall be
liable to the Administrative Agent for any portion of such liabilties, obligations, losses, daages, penalties, actions,
judgments, suits, costs, expenses or disbursements resultig from the gross negligence or wilful misconduct of the
Adminstrative Agent or any of its diectors, offcers, employees or agents.
Section 9.05 Absence of Reliance. Each of the Ban acknowledges that it has, independently and without reliance upon
the Adminstrative Agent or any other Ban and based on such documents and inormation as it has deemed appropriate,
made its own credit analysis and decision to enter into ths Agreement. Each of the Ban also acknowledges that it wilI,
independently and without reliance upon the Administrative Agent or any Ban and based on such documents and
inormation as it shall deem appropriate at the tie, contiue to make its own decisions in tag or not tag action under
or based upon the Loan Documents, any related agreement or any document fushed thereunder.
Section 9.06 Resignation of Adminstrative Agent. The Adminstrtive Agent may at any tie give notice of its
resignation to the Ban and the Borrower and shal promptly give such notice in the event that the Admnistrative Agent
becomes a Defaultig Ban Upon receipt of any such notice of resignation, the Requird Ban may, with the consent of the
Borrower (which consent shall not be uneanably witheld and shall not be reuird durig an Event of Default), appoint a
successor Adminstrative Agent. If no successor Admstrtive Agent shall have bee so appointed by the Required Ban
and shall have accepted such appointment with 30 days after the retig Adminstrative Agent's giving of notice of
resignation, then the retig Adminstrative Agent may, on behalf of the Ban and after consultation with the Ban and the
Borrower, appoint a successor Admstrtive Agent. Upon the acceptace by any person of its appointment as a successor
Adminstrative Agent, such person shall thereupon succeed to and become vested with all the rights, powers, privileges,
duties and obligations of the retig Admistrative Agent, and the retirg Administrative Agent shall be discharged from its
duties and obligations as Adminstrtive Agent under the Loan Documents. Afer any retirg Administrative Agent's
resignation as Administrative Agent, the provisions of ths Aricle IX shall contiue in effect for its benefit in respect of any
actions taen or omitted to be taen by it while it was actig as the Admintrtive Agent.
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Section 9.07 Syndication Agent and Co-Documentation Agents. Neither the Syndication Agent nor either Co-
Documentation Agent shall have any rights, powers, obligations, liabilties, responsibilties or duties under the Loan
Document other than those applicable to all Ban as su,ch. Without limitig the foregoing, none of the persons identified
as "Syndication Agent" or "Co-Documentation Agent" shall have or be deemed to have any fiduciar relationship with any
Ban. Each of the Ban acknowledges tht it has not relied, and will not rely, on any of the persons so identified in
deciding to enter into ths Agreement or in tag or not tag action hereunder.
Section 9.08 Replacement of Cert Ban. Ifa Ban (a) is a Defaultig Ban or (b) fails to give its consent to any
amendment, waiver or action for which consent of all of the Ban was required and to which the Required Bans consented,
then, in addition to any other rights and remedies that any Person may have, the Administrative Agent may, by notice to such
Ban with 120 days after such event, require such Ban to assign all of its rights and obligations under the Loan
Documents to one or more assignees specified by the Adminstrtive Agent, in each case puruant to an appropriate
Assignment and Assumption and with 20 days afr the Administrative Agent's notice. The Adminstrative Agent is
irevocably appointed as attorney-in-fact to execute any such Assignment and Assumption if such Ban fails to execute the
same. Such Ban shall be entitled to receive, in cash, concurently with such assignment, all amounts owed to it under the
Loan Documents, includig all pricipal, interest and fees though the date of assignent (but excluding any prepayment
charge other than amounts owed under Section 2.13).
ARTICLE X
MISCELLANEOUS
Section 10.01 Notices. Notices and other communications provided for herein shall be in wrtig and shall be delivered
by hand or overnght courer service, mailed or sent by telecopy, graphic scang or other telegraphic communications
equipment of the sendig par, as follows:
(a) if to the Borrower, to:
A vista Corporation
141 i East Mission Avenue (99202)
P.O. Box 3727
Spokae, Washington 99220
Attention: Senior Vice President and Chief Fincial Offcer
Telecopy: 509-495-4879
(b) if to the Administrative Agent for credt matters, to:
Union Ban N.A.
445 South Figueroa Street, 15th Floor
Los Angeles, Californa 9007 i
Atttion: Power & Utilties
Telecopy: 213-236-4096
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and if to the Admintrative Agent for operational matters, to:
Union Ban, N.A.
1980 Satu Street, Mail Code 4-957-161
Monterey Park, Californa 91754
Attntion: Mara Areaga, Commercial Loan & Agency Servces
Telephone: [phone]
Telecopy: 323-720-2780
E-mail: mara.areaga(gunionban.com
(c) if to a Ban to it at its address (or telecopy number) set fort in Schedule 2.01 or in the Assignment and
Assumption puruant to which such Ban shall have become a par hereto.
All notices and other communications given to any par hereto in accordace with the provisions of ths Agreement shall be
deemed to have been given on the date of receipt if delivered by hand or overnght courier servce or sent by telecopy or
other telegraphic communications equipment of the sender, or on the date five Business Days after dispatch by certfied or
registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such par as provided in th
Section 10.01 or in accordace with the latest unevoked diection from such par given in accordance with this
Section 10.01.
Section 10.02 Surival of Agreement. Al covenants, agreements, representations and waranties, includig any
indemnities and reimburement obligations, made by the Borrower in the Loan Documents and in the certficates or other
instrents prepared or delivered in connection therewith or pursuant thereto shal be considered to have been relied upon by
the Ban and shall surve the makg by the Ban of the Loans and the execution and delivery to the Ban of any Notes
evidencing such Loan, regardless of any investigation made by the Ban, or on their behalf, and shall continue in full force
and effect as long as the pricipal of or any accrued interest on any Loan or any Fee or any other amount payable under ths
Agreement or any other Loan Document is outstading and unaid and so long as the Commtments have not been
terminated.
Section 10.03 Bindig Effect. Ths Agreement shall become effective when it shall have been executed by the Borrower
and the Admintrative Agent and when the Admintrative Agent shal have received copies hereof which, when taen
together, bear the signatues of each Ban and thereafr shal be binding upon and inure to the benefit of the Borrower, the
Adminstrative Agent and each Ban and their respective successors and permttd assigns. Whenever in ths Agreement any
of the paries hereto is referrd to, such reference shal be deemed to include the successors and permitted assigns of such
pary; and all covenants, promises and agreements by or on behal of the Borrower, the Admstrative Agent or the Ban
that are contaed in this Agreement shall bind and inur to the benefit of their respective successors and permitted assigns.
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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 wrttn conset of each of the Ban.
(b) Each Ban (includig the Adminstrative Agent when acting as a Ban) may assign to one or more assignees all
or a porton of its interests, rights and obligations under the Loan Documents (including all or a porton of its Commitment
and the same porton of the applicable Loan or Loan at the tie owing to it); provided, however, tht (i) except in the case of
an assignment to a Ban or Affliate of a Ban, the Borrower and the Adminstrative Agent must give their prior wrtten
consent to such assignent (which consents shall not be uneasonably witheld), provided that the consent of the Borrower
shall not be required if an Event of Default shall exist, (ii) no assignee of any Ban shall be entitled to receive any greater
payment or protection under Section 2.1 I, 2.l2(a) or 2.17 than such Ban would have been entitled to receive with respect to
the rights assigned or otherwise tranferrd uness such assignent or trfer shall have been made at a tie when the
circumstaces givig rise to such greater payment did not exist, (iii) each such assignent shall be of a constat, and not a
varing, percentage of all the assignig Ban's rights and obligations under ths Agreement, (iv) the amount of the
Commitment of the assignig Ban subject to each such assignent (determed as of the date the Assignment and
Assumption with respect to such assignent is delivered to the Adminstrative Agent) shall not be less than $5,000,000 (or, if
less, the tota amount of such Ban's Commitment), (v) the pares to each such assignment shall execute and deliver to the
Adminstrative Agent an Assignment and Assumption and a processing and recordation fee of $3,500 and (vi) the assignee, if
it shall not be a Ban shall deliver to the Adminstrative Agent an Adminstrative Questionnaire. Upon acceptace and
recording pursuant to paragraph (d) of ths Section 10.04, from and aftr the effective date specified in each Assignment and
Assumption, which effective date shall be at leat five Business Days afer the execution thereof, (A) the assignee thereunder
shall be a par hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Ban under the Loan Documents and (B) the assignig Ban 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 Assignent and Assumption coverig all or the remaing porton of an assignig Ban's rights and obligations under
the Loan Documents, such Ban shall cease to be a par hereto but shall continue to be entitled to the benefits of Sections
2.1 1,2.13,2.17 and 9.05, as well as to any Fees accrued for its account and not yet paid).
(c) The Admstrative Agent shall mainta a copy of each Assignent and Assumption delivered to it, including
the recordation of the names and addresses of the Ban, and the Commtment of, and pricipal amount of the Loans owig
to, each Ban pursuat to the term hereof from time to tie (the "Register"). The Administrtive Agent and the Ban may
treat each person whose name is recorded in the Register pursut to the terms hereof as a Ban hereunder for all puroses of
the Loan Documents. The Register shall be available for inspection by the Borrower and any Ban at any reasonable tie
and from tie to time upon reasonable prior notice.
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(d) Upon its receipt of a duly completed Assignment and Assumption executed by an assigng Ban and an
assignee, an Adminstrative Questionnaie completed in respect of the assignee (uness the assignee shall already be a Ban
hereunder), the processing and recordation fee referred to in paragraph (b) above and, to the extent required, the wrtten
consent of the Borrower and the Admintrative Agent to such assignent, the Adminstrative Agent shall (i) accept such
Assignment and Assumption, (ii) record the inormation contained therein in the Register and (iii) give prompt notice thereof
to the Borrower. Upon the request of the assignee, the Borrower, at its own expense, shall execute and deliver to the
Adminstrative Agent, a new Note or Notes to the order of such assignee in a pricipal amount equa to the applicable
Commitment assumed by it pursuat to such Assignent and Assumption and, if the assigng Ban has retained a
Commitment, upon the request of the assignig Ban, the Borrower shall execute and deliver a new Note to the order of such
assignig Ban in a pricipal amount equa to the applicable Commtment retaed by it. Canceled Notes shall be retued to
the Borrower.
(e) Each Ban may without the consent of the Borrower or the Adminstrative Agent sell parcipations to one or
more ban or other entities in all or a portion of its rights and obligations under the Loan Documents (includig all or a
portion of its Commitment and the Loans owing to it and any Notes held by it); provided, however, that (i) such Ban's
obligations under the Loan Documents shall remai unchaged, (ii) such Ban shall remain solely responsible to the other
paries hereto for the performance of such obligations, (iii) the parcipating ban or other entities shall be entitled to the
benefit of the cost protection provisions contained in Sections 2.11, 2.13 and 2.17 to the same extent as if they were Ban
(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 parcipation would have been entitled had it not sold such interest) and (iv) the Borrower, the Adminstrative Agent and
the Ban shall continue to deal solely and directly with such Ban in connection with such Ban's rights and obligations
under the Loan Documents, and such Ban shall retain the sole right to enforce the obligations of the Borrower relatig to the
Loan and to approve any amendment, modification or waiver of any provision of the Loan Documents (other than
amendments, modifications or waiver (A) decreasing any Fees or the amount of pricipal of or the rate at which interest is
payable on the Loans, (B) extendig any scheduled date for the payment of Fees or principal of or interest on Loans,
(C) extendig the expiration date of the Commtments or (D) releasing the Firt Mortgage Bond or releasing all or
substatially all of the collateral therefor, in each such case except puruat to Arcle VII).
(f) Any Ban or paricipant may, in connection with any assignment or paricipation or proposed assignent or
paricipation pursuant to ths Section 10.04, disclose to the assignee or parcipant or proposed assignee or paricipant any
information relating to the Borrower fuished to such Ban by or on behalf of the Borrower; provided that, prior to any such
disclosure of inormation designated by the Borrower as confdential, each such assignee or paricipant or proposed assignee
or paricipant shall execute an agreement whereby such assignee or paricipant shal agree (subject to customar exceptions)
to preserve the confidentiality of such confdential information.
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(g) Notwthstading anytg to the contr contained herein, any Ban (a "Granting BanK') may grt to a
special-purose fuding vehicle (an "SPC') the option to fund all or any par of any Loan that such Gratig Ban would
otherwse be obligated to fud pursuant to this Agreement; provided tht (i) nothing herein shall constitute a commtment by
any SPC to fud any Loan, and (ii) if an SPC elects not to exercise such option or otherwse fails to fud all or any par of
such Loan, the Grantig Ban shall be obligated to fud such Loan pursuant to the term hereof. The funding of a Loan by an
SPC hereunder shall utilize the Commitment of the Grting Ban to the same extent as if such Loan were fuded by such
Grantig Ban. Each par hereto hereby agrees that no SPC shall be liable for any indemnty or payment under the Loan
Documents for which a Ban would otherwise be liable for so long as, and to the extent, the Granting Ban provides such
indemnity or makes such payment. Notwithstadig anytng to the contr contained in this Agreement, any SPC may
disclose on a confidential basis any non-public inormation relatig to its fuding of Loans to any rating agency, commercial
paper dealer or provider of any surety or guantee to such SPC. Ths pargraph may not be amended without the prior
wrtten consent of each Grantig Ban, all or any par of whose Loans are being fuded by an SPC at the time of such
amendment.
(h) Any Ban may at any tie assign for securty puroses all or any porton of its rights under the Loan
Documents to a Feder~l Reserve Ban; provided that no such assignent shall release a Ban from any of its obligations
thereunder.
Section LO.05 Expenses: Indemnty Damage Waiver.
(a) The Borrower agrees to pay all reasonable out-of-pocket expenses (including the reasonable fees, charges and
disburements of internal or external legal counsel) (i) incured by the Administrative Agent in connection with the
prearation of the Loan Documents or in connection with any amendments, modifications or waivers of the provisions
thereof (whether or not the transactions thereby contemplated shal be consumated) or (ii) incured by the Adminstrtive
Agent or any Ban in connection with the enforcement or protection of its rights in connection with the Loan Documents or
any Loan.
(b) The Borrower agrees that it shall indemn the Adminstrative Agent and the Ban against and hold them
harless from any documenta taes, assessments or charges made by any Governental Authority by reason of the
execution and delivery of ths Agreement or any of the other Loan Documents.
(c) The Borrower agrees to indemfy the Adminstrative Agent and each Ban and each of their respective
directors, officers, employees and agents (each such person being called an "Indemnitee") against, and to hold each
Indemntee harless from, any and all losses, claims, daages, liabilities and related expenses, includig reasonable counsel
fees, chages and disburements, incured by or asserted agait any Indemntee arsing out of, in any way connected with, or
as a result of, (i) the execution or delivery of ths Agreement or any other Loan Document or any agreement or intrent
contemplated thereby, the performance by the
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paries thereto of their respective obligations thereunder or the consumation of the Transactions and the other tranactions
contemplated thereby, (ii) the use of the proce of the Loan or (iii) any claim, litigation, investigation or proceedg
relatig to any of the foregoing, whether or not any Indemtee is a par thereto; provided that such indemty shal not, as
to any Indemtee, be available to the extent that such losses, clai, daages, liabilties or related expenses are determined
by a cour of competent jursdiction by fin and nonappealable judgment to have resulted from the gross negligence or
wilful misconduct of such Indemntee.
(d) To the fullest extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any clai
againt any Indemntee, on any theory of liabilty, for special, indirect, consequential or puntive damages (as opposed to
direct or actual daages) arsing out of, in connection with, or as a result of, ths Agreement, any other Loan Document or
any agreement or instrent contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of
the proceeds thereof; provided that such waiver shall not, as to any Indemnitee, apply to special, indiect or consequential
daages to the extent resultig from, or punitive damages awarded on account of, conduct by such Indemntee that is
determned by a cour of competent jurdiction by final and nonappealable judgment to have constituted gross negligence or
wilful misconduct by such Indemntee.
.
(e) The provisions of ths Section 10.05 shall remain operative and in full force and effect regardless of the
expiration of the term of ths Agreement, the consumation of the tranactions contemplated hereby, the repayment of any of
the Loan, the invalidity or unenforceability of any term or proviion of ths Agrement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent or any Ban. All amounts due under th Section 10.05 shall
be payable on wrtten demand therefor.
Section 10.06 Right of Setoff. If an Event of Default shall have occured and be continuing and the Loan shall have
been accelerated as set fort in Arcle VII, each of the Ban is hereby authoried at any time and from tie to tie, to the
fulest 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 Ban (or person Controlling such Ban) to or for the
credt or the account of the Borrower agait any of and all the obligations of the Borrower now or hereafr existig under
ths Agreement and other Loan Documents held by such Ban irpective of whether or not such Ban shall have made any
demand under ths Agreement or any other Loan Document and although such obligations of the Borrower are owed to a
brach or offce of such Ban differet from the branch or offce holdig such deposit or obligated on such indebtedness. The
rights of each Ban under ths Section ar in addition to other rights and remedies (includig other rights of setoff which
such Ban may have. Any Ban shall promptly notify the Borrower aftr exercising its rights under ths Section.
Section 10.07 Applicable Law. THIS AGREEMENT, AN THE OTHR LOAN DOCUMNTS OTHR TH TH
FIRST MORTGAGE BOND, THE FIRST MORTGAGE AN THE SUPPLEMENTAL INENT, SHAL BE
CONSTRUED IN ACCORDANCE WITH AN GOVERND BY THE LAWS OF THE STATE OF NEW YORK.
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Section 10.08 Waivers: Amendment.
(a) No failure or delay of the Admstrtive Agent or any Ban in exercising any power or right under the Loan
Documents shall operate as a waiver thereof, nor shall any single or paral exercise of any such right or power, or any
abandonment or discontiuace of steps to enforce such a right or power, preclude any other or fuer exercise thereof or the
exercise of any other right or power. The rights and remedies of the Adminstrtive Agent and the Ban hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights or remedies which they would otherise have.
No waiver of any provision of ths Agreement or any other Loan Document or consent to any depare by the Borrower
therefrom shall in any event be effective uness the same shall be permitted by pargraph (b) below, and then such waiver or
consent shall be effective only in the specific intace and for the purose for which given. No notice or demand on the
Borrower in any case shall entitle the Borrower to any other or fuer notice or demand in similar or other cirumstaces.
(b) Neither the Loan Documents nor any provision thereof may be waived, amended or modified except puruant to
an agreement or agreements in wrting entered into by the Borrower and the Required Ban; provided, however, that no
such agreeent shall (i) without the consent of the applicable Ban, (A) decrease the pricipal of or the rate of interest on
such Ban's Loans or the Fees payable to such Ban, (B) extend the date for any scheduled payment ofpIicipal of or
interest on such Ban's Loans or the Fees payable to such Ban, or (C) increase the amount or exted the expiration date of
such Ban's Commitment, or (ii) without the consent of each Ban, (A) release the Firt Mortgage Bond or release all or
substatially all of the collateral therefor, in each such case except pursuant to Arcle vr, or (B) amend or modify the
provisions of Section 2. 14, the provisions of ths Section, the defintion of "Required Ban" or any other provision requirg
the consent or agreement of each of the Bans; provided fuer that no such agreement shall amend, modify or otherwse
affect the rights or duties of the Adminstrative Agent under the Loan Documents without the prior wrtten consent of the
Adminstrtive Agent. Each Ban and each holder of a Note shall be bound by any waiver, amendment or modification
authoried by this Section regardless of whether its Note shall have been marked to make reference thereto, and any consent
by any Ban or holder of a Note puruant to ths Section shall bind any person subsequently acquirg a Note from it,
whether or not such Note shall have been so marked.
Section 10.09 Interest Rate Limitation. Notwithstading anytg herein or in any Notes to the contrar, 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 otherwse contracted
for, charged, received, taen or reserved by any Ban shall exceed the maximum lawfl rate (the "Maximum Rate") which
may be contracted for, chaged, taen, received or reserved by such Ban in accordance with applicable law, the rate of
inteest payable under any Note held by such Ban together with al Charges payable to such Ban, shall be limited to the
Maximum Rate.
Section 10. 10 Entie Agrent. Each Loan Document constitutes the entir contract between or among the paries
relative to the subject matter thereof, and any previous agreement between or among the pares with respect to the subject
matter thereof is superseded by such
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Loan Document. Nothg in ths Agreement or in the other Loan Documents, expressed or implied, is inteded to confer
upon any par other than the pares hereto and thereto any rights, remedies, obligations or liabilities under or by reason of
this Agreement or the other Loan Documents.
Section 10.l 1 Waiver of Jur TriaL. Each par hereto hereby waives, to the fullest extent permitted by applicable law,
any right it may have to a tral by jur in respect of any litigation diectly or indirectly arsing out of, under or in connection
with ths Agreement or any of the other Loan Documents. Each par hereto (a) certfies that no representative, agent or
attorney of any other par has represented, expressly or otherwse, that such other par would not, in the event of litigation,
seek to enforce the foregoing waiver and (b) acknowledges tht it and the other paries hereto have been induced to enter into
this Agreement and the other Loan Documents, as applicable, by, among other thgs, the mutu waivers and certfications
in ths Section 10. 1 1.
Section 10.12 Severability. In the event anyone or more of the provisions contained in ths Agreement or in any other
Loan Document should be held invalid, ilegal or unenforceable in any respect, the validity, legality and enforceability of the
remaing provisions contained herein and therein shall not in any way be affected or impaired thereby. The paries shall
endeavor in good-faith negotiations to replace the invalid, ilegal or unenforceable provisions with vald provisions the
economic effect of which comes as close as possible to that of the invalid, ilegal or unenorceable provisions.
Section 10. l3 Countemar. This Agreement may be executed in two or more counterpar, each of which shall
constitute an original but all of which when taen together shall constitute but one contract, and shall become effective as
provided in Section 10.03.
Section 1O.l4 Headigs. Aricle and Section headings and the Table of Contents used herein are for convenience of
reference only, ar not par of ths Agreement and ar not to affect the constrction of, or to be taen into consideration in
interpretig, ths Agreement.
Section 10. l5 Jursdiction: Consent to Servce of Process.
(a) The Borrower hereby irevocably and unconditionally submits, for itself and its propert, to the nonexclusive
jursdiction of any New York State cour or Federal cour of the United States of America sittg in New York City, and any
appellate cour from any thereof, in any action or proceeding arsing out of or relatig to ths Agreement or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the paries hereto hereby irevocably and
unconditionally agrees tht all claims in respect of any such action or proceedig may be heard and determed in such New
York State or, to the extent permitted by law, in such Federal cour. Each of the pares hereto agrees tht a final judgment in
any such action or proceedig shal be conclusive and may be enforced in other jursdictions by suit on the judgment or in
any other maner provided by law. Nothg in ths Agreement shall afect any right that the Adminstrtive Agent or any
Ban may otherwise have to brig any action or proceeing relatig to th Agreement or the other Loan Documents agaist
the Borrower or its properties in the cour of any jursdiction.
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(b) The Borrower hereby irevocably and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereaftr have to the laying of venue of any suit, action or proceedig arsing out of
or relating to this Agreement or the other Loan Documents in any New York State or Federal cour. Each of the paries hereto
hereby irevocably waives, to the fullest extent permitted by law, the defense of an inconvenient foru to the maintenace of
such action or proceeding in any such cour.
(c) Each par to ths Agreement irevocably consents to servce of process in the maner provided for notices in
Section 10.01. Nothing in ths Agreeent wil afect the right of any par to this Agreement to serve process in any other
maner permitted by law.
Section 10. i 6 USA Patrot Act Notification. Each Ban hereby notifies the Borrower that, pursuant to the requirements
of the USA Act (Title II of Pub. L. 107-56 (signed into law October 26, 200l) (the "Acf'), it is required to obta, verfy and
record inormation that identifies the Borrower, which information includes the name and address of the Borrower and other
inormation that wil allow such Ban to identif the Borrower in accordace with the Act. The Borrower agrees to cooperate
with each Ban and provide tre, accurate and complete inormation to such Ban in response to any such request.
(Signatue pages follow.)
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WITNSS the due execution hereof as of the date first above wrtten.
A VISTA CORPORATION
By: lsi Jason Thackston
Name: Jason Thackston
Title: Vice President
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UNON BAN, N.A.,
as Adminstrtive Agent and a Ban
By: lsi Pasal Uttiger
Name: Pascal Uttger
Title: Vice President
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WELLS FARGO BAN, NATIONAL ASSOCIATION
By: lsI Tom Beil
Name: Tom Beil
Title: Vice President
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JPMORGAN CHASE BAN, N.A.
By: lsi Jenfer Fitzgerald
Name: Jennfer Fitzgerald
Title: Associate
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UBS LOAN FIANCE LLC
By: Isllia R. Otsa
Name: Iia R. Ota
Title: Associate Director
By: lsI Mare Haddad
Name: Mare Haddad
Title: Associate Director
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KEYBAN NATIONAL ASSOCIATION
By: lsI Keven D. Smith
Name: Keven D. Smith
Title: Senior Vice President
Avista Corporation Short-Term Revolvig Credit Agreement - Signatue Pages
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u.s. BAN NATIONAL ASSOCIATION
By: lsI Raymond J. Paler
Name: Raymond J. Paler
Title: Utilities, S.V.P.
Avista Corporation Short-Term Revolvig Credit Agreement - Signature Pages
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EXHffITA
(FORMOFJ
NOTE
$_,2009
FOR VALUE RECEIVD, the undersigned, AVISTA CORPORATION, a Washigton corporation (the "Borrower"),
hereby promises to pay to the order of (the "Ban/t'), at the offce of Union Ban N.A., as admintrative
agent (the "Administrative Agenr), at 445 South Figueroa Street, Los Angeles, Caliornia, on the Expiration Date, as dermed
in the Credit Agreement dated as of November 25,2009 among the Borrower, the Ban listed in Schedule 2.01 thereto,
JPMorgan Chase Ban N.A. and UBS Securties LLC, as Co-Documentation Agents, Wells Fargo Securties, LLC, as
Syndication Agent, and the Adminstrative Agent (the "Credit Agreemenr), the aggregate unpaid pricipal amount of all
Loan (as defied in the Credit Agreement) of the Ban under the Credit Agreement, in lawfl money of the United States of
Amerca in imediately available fuds, and to pay interest from the date hereof on the pricipal amount hereof from time to
tie outstadig, in like fuds, at said offce, at the rate or rates per anum and payable on the dates provided in the Credit
Agreement.
The Borrower promises to pay interest, on demand, on any overdue pricipal and, to the extent permtted by law,
overdue interest from their due dates at the rate or rates provided in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and notice of any kid whatsoever. The
nonexercise by the holder of any of its rights hereunder in any parcular intace shall not constitute a waiver thereof in that
or any subsequent intace.
All Loans evidenced by ths Note and all payments and prepayments of the pricipal hereof and interest hereon and the
respective dates and matuty dates thereof shall be endorsed by the holder hereof on the schedule attched hereto and made a
par hereof or on a contiuation thereof which shal be attched hereto and made a par hereof, or otherwise recorded by such
holder in its internl records; provided, however, that the failure of the holder hereof to make such a notation or any error in
such a notation shall not afect the obligations of the Borrower under this Note.
This Note is one of the Notes referrd to in the Credit Agreement, which, among other things, contain provisions for
the acceleration of the matuty hereof upon the happening of certin events, for optional and mandatory prepayment of the
pricipal hereof prior to the matuty hereof and for the amendment or waiver of cert provisions of the Credit Agrment,
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all upon the terms and conditions therein specified. Ths Note shall be constred in accordace with and governed by the
laws of the State of New York and any applicable laws of the United States of America.
A VISTA CORPORATION
By:
Name:
Title:
2
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Loan and Payments
Date
Amount
and
Type of Loan
Maturity
Date
Payments of
Principal Interest
Unpaid Principal
Balnce of Note
Name of PersonMakg
Notation
3
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EXHmITB
(FORM OF)
ASSIGNMENT AN ASSUMTION
This Assignment and Assumption (the "Assignment and Assumption") is dated as of the Effective Date set fort below
and is entered into by and between (Insert name of Assignor) (the "Assignor") and (Insert name of Assignee) (the
"Assignee"). Capitalized terms used but not defmed herein shall have the meangs given to them in the Credit Agreement
identified below (as amended, the "Credit Agreemenf'). The Stadard Terms and Conditions set fort in Anex 1 attched
hereto are hereby agreed to and incorporated herein by reference and made a par of ths Assignment and Assumption as if set
fort herein in full.
For an agreed consideration, the Assignor hereby irevocably sells and assigns to the Assignee, and the Assignee hereby
irevocably purchases and assumes from the Assignor, subject to and in accordace with the Stadard Term and Conditions
and the Credit Agreement, as of the Effective Date inerted by the Admstrative Agent as contemplated below (i) all of the
Assignor's rights and obligations in its capacity as a Ban under the Credit Agreement and any other documents or
intrents delivered puruant thereto to the extent related to the assigned amount and percentage interest identified below of
the respective facilties identified below and (ii) to the extent permitted to be assigned under applicable law, all clais, suits,
causes of action and any other rights of the Assignor (in its capacity as a Ban) againt any person, whether known or
unown, arsing under or in connection with the Credit Agreement, any other documents or intrents delivered pursuat
thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not
limited to, contract clais, tort claims, malpractice clais, statutory claims and all other claims at law or in equity, in each
case related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as, the "Assigned Interest'). Such sale and
assignment are without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or waranty by the Assignor.
I. Assignor:
2. Assignee:
(an Affliate of (identif existing Bank)) i
3.Borrower:A vista Corporation
4. Adminstrative Agent: Union Ban, N.A.
5.Credit Agreement:Credit Agreement, dated as of November 25, 2009, among A vista Corporation, the Ban
listed in Schedule 2.0l thereto, JPMorgan Chase Ban, N.A. and UBS Securties LLC, as Co-
Documentation Agents, Wells Fargo Securities, LLC, as Syndication Agent, and Union Ban,
N.A., as Adminstrative Agent
Include if applicable.
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6. Assigned Interest:
Amount of
I Amunt of
Credit
of
(7. Trade Date: _, 20-:6
Effective Date: ,20_ (TO BE INSERTED BY ADMINSTRTIVE AGEN AN WHICH SHAL BE THE
EFFECTI DATE OF RECORDATION OF TRSFER IN THE REGISTER THEREFOR.)
The terms set fort in this Assignent and Assumption are hereby agreed to:
ASSIGNOR
(NAM OF ASSIGNOR)
By:
Name:
Title:
ASSIGNEE
(NAME OF ASSIGNEE)
By:
Name:
Title:
2 Fil in the appropriate terminology for the tyes of facilities under the Credit Agreement that are being assigned under
ths Assignent (e.g., "Revolvig Credit Commitment")
Use "Revolving Credit Exposure(s)" if Commitments have been termated; otherwise, use "Commitment(s)."
Amount to be adjusted by the counterpares to tae into account any payments or prepayments made between the Trade
Date and the Effective Date.
Set fort, to at least 9 decimals, as a percentage of the Commitments I Revolving Credit Exposures of all Ban
thereunder.
To be completed if the Assignor and the Assignee intend that the minum assignent amount is to be determined as of
the Trade Date.
4
6
2
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(Consente to andF Accepted:
UNON BAN, N.A.,
as Adminstrative Agent
By:
Name:
Title:
(Consented to:
A VISTA CORPORATION
By:
Name:
Title:J
7 To be included if such consent is required by the terms of the Credit Agreement.
3
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ANX 1
STANAR TERMS AN CONDmONS FOR
ASSIGNMNT AN ASSUMTION
1. Representations and Waranties.
1. Assignor. The Assignor (a) represents and warants that (i) it is the legal and beneficial owner of the Assigned
Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has ful power
and authority, and has taen all action necessar, to execute and deliver ths Assignment and Assumption and to consumate
the tranactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warties or
representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceabilty, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the
financial condition of the Borrower, any of its Subsidiares or Affiliates or any other person obligated in respect of any Loan
Document or (iv) the performance or obserance by the Borrower, any of its Subsidiares or Affiiates or any other person of
any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warants that (i) it has ful power and authority, and has taen all
action necessar, to execute and deliver this Assignent and Assumption and to consumate the tranactions contemplated
hereby and to become a Ban under the Credit Agreement, (ii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Ban thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Ban thereunder, (iii) it has received a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 5.04 thereof, as applicable, and such other documents and inormation as it
has deemed appropriate to make its own credit analysis and decision to enter into ths Assignent and Assuption and to
purchase the Assigned Interest, on the basis of which it has made such analysis and decision independently and without
reliance on the Admistrative Agent or any other Ban, and (iv) if it is a Non-U.S. Person (as defied in Section 2. i 7(g) of
the Credit Agreement), attched to the Assignent and Assuption is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; (b) agrees that (i) it wil,
indeendently and without reliance on the Adminstrative Agent, the Assignor or any other Ban and based on such
documents and information as it shall deem appropriate at the tie, continue to make its own credit decisions in takg or not
tag action under the Loan Documents, and (ii) it wil perform in accordace with their terms all of the obligations which
by the terms of the Loan Documents are required to be performed by it as a Ban; and (c) effective on the Effective Date,
appoints and authorizes the Administrative Agent to tae such action as Administrative Agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to the Adminstrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto.
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2. Payments. From and after the Effective Date, the Admintrtive Agent shall make all payments in respect of the
Assigned Interest (includig payments of pricipal, interest, fees and other amounts) to the Assignor for amounts which have
accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective
Date.
3. General Provisions. This Assignent and Assumption shall be binding upon, and inure to the benefit of, the paries
hereto and their respective successors and assigns. This Assignent and Assumption may be executed in any number of
counterpar, which together shall constitute one instrment. Delivery of an executed counterpar of a signatue page of ths
Assignent and Assumption by telecopy shall be effective as delivery of a manually executed counterpar of this Assignment
and Assumption. Ths Assignent and Assumption shall be governed by, and constred in accordance with, the law of the
State of New York.
2
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EXHffITC
(FORM OF)
ADMINSTRTIV QUESTIONNAI
ACCOUN: Avista Corporation
FACILITY: Short-Term Revolvig Credit Facilty
LEGAL NAM OF BAN:
Operations Contact
(Repayments/Funding Matters)
Name
Title
Street Addrss
City, State and Zip
Telephone
Fax
E-Mail Address
Credit Contact
(Compliance Matters and Financial Statements)
Name
Title
Street Address
City, State and Zip
Telephone
Fax
E-Mail Address
Wire Instrctions:
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EXHffITD
£FORM OF)
COMMITENT INCREASE SUPPLEMEN
THIS COMMITMEN INCREASE SUPPLEMENT is mad and dated as of _, 20_, by and among
(ADDITIONAL COMMITMEN BAN) (the "Additional Commitment Bank"), A VISTA CORPORATION, a Washigton
corporation (the "Borrower"), and UNON BAN, N.A., as Adminstrative Agent under the Credit Agreement, dated as of
November 25,2009, among the Borrower, the Ban liste in Schedule 2.01 thereto, JPMorgan Chase Ban, N.A. and UBS
Securties LLC, as Co-Documentation Agents, Wells Fargo Securties, LLC, as Syndication Agent, and Union Ban N.A., as
Adminstrative Agent (as amended, modified or supplemented from tie to tie, the "Credit Agreemenf'). Terms used and
not otherwise defined herein are used herein with the meangs ascribed thereto in the Credit Agreement.
WHEREAS, pursuant to Section 2.09(c) of the Credit Agreement, the Borrower desires to have the aggregate amount of
the Commtments increased; and
WHEREAS, the Additiona Commitment Ban is wiling to (become an additional BanJl (increase its CommitmentJ2;
NOW, THEREFORE, the paries hereto agree as follows:
I. Upon the effectiveness of ths Commitment Increas Supplement, (the Additiona Commtment Ban shall be a par
to the Credt Agreement and shall be entitled to al of the rights, and be subject to all of the obligations, of a Ban under the
Credit Agreement) 1 (the Commtment of the Additiona Commitment Ban shal be increaed frm $_ to $_. J2
(The initial amount of the Additional Commitment Ban's Commtment shall be $_.)1
2. The Additional Commitment Ban acknowledges, and agrees to comply with its obligation under Section 2.09(c) of
the Credit Agrement to purchase assignments of Loans from the other Ban on the effective date hereof.
3. This Commitment Increase Supplement shall become effective upon the execution and delivery hereof by the
Additional Commitment Ban, the Borrower and the Adminstrtive Agent.
1
2 Include if Additiona Commitment Ban is not an existig Ban.
Include if Additional Commtment Ban is an existig Ban.
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4. Ths Commitment Increase Supplement may be executed in any number of counterpar and by the different paries
hereto on separate counterpar, each of which when so executed and delivered shall be an originl, but all of which shall
together constitute one and the same instrent.
5. Ths Commitment Increase Supplement shal be constred in accordace with and governed by the law of the State of
New York.
IN WITNSS WHEREOF, the paries hereto have caused ths Commitment Increase Supplement to be executed as of
the day and year first wrttn above.
(ADDITIONAL COMMEN BAN)
By:
Name:
Title:
A VISTA CORPORATION
By:
Name:
Title:
UNON BAN, N.A.,
as Adminstrtive Agent
By:
Name:
Title:
2
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EXHffITE
(FORM OF)
COMMITMEN EXTESION SUPPLEMENT
THIS COMMITMENT EXTENSION SUPPLEMENT is made and dated as of _, 20_ by and among
(the "Additional Commitment Bank"), A VISTA CORPORATION, a Washigton corporation (the
"Borrower"), and UNON BAN, N.A., as Admistrative Agent under the Credit Agreement, dated as of November 25,
2009, among the Borrower, the Ban listed in Schedule 2.01 thereto, JPMorgan Chae Ban N.A. and UBS Securties LLC,
as Co-Documentation Agents, Wells Fargo Securties, LLC, as Syndication Agent, and Union Ban, N.A., as Adminstrative
Agent (as amended, modified or supplemented from time to tie, the "Credit Agreemenr). Terms used and not otherise
defined herein are used herein with the meangs ascribed thereto in the Credit Agreement.
WHEREAS, puruant to Section 2. 19(e) of the Credit Agreement, the Borrower desires to have an aggregate amount of
Commitments up to the aggregate amount of the Existig Commtments extended; and
WHEREAS, the Additional Commitment Ban is willing to (become an additional Ban) 10 (increase its Commitment) 1 1;
NOW, THEREFORE, the pares hereto agree as follows:
l. Upon the effectiveness of ths Commitment Extension Supplement, (the Additional Commitment Ban shall be a
par to the Credit Agreement and shall be entitled to all of the rights, and be subject to all of the obligations, of a Ban under
the Credit Agreement) 1 (the Commitment of the Additional Commitment Ban shal be increased from $_ to $_.)
2 (The intial amount of the Additional Commtment Ban's Commitment shall be $_.)1
2. This Commitment Extension Supplement shall become effective upon the execution and delivery hereof by the
Additiona Commitment Ban, the Borrower and the Admstrtive Agent.
3. Ths Commitment Extension Supplement may be executed in any number of countear and by the different pares
hereto on separate counterpar, each of which when so executed and delivered shall be an original, but all of which shall
together constitute one and the same intrent.
1
2 Include if Additional Commitment Ban is not an existig Ban.
Include if Additional Commitment Ban is an existing Ban.
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4. Ths Commitment Extension Supplement shall be constred in accordace with and governed by the law of the State
of New York.
IN WITNSS WHEREOF, the paries hereto have caused this Commtment Extension Supplement to be executed as of
the day and year fit wrtten above.
(ADDITIONAL COMMITMEN BAN)
By:
Name:
Title:
A VISTA CORPORATION
By:
Name:
Title:
UNON BAN, N.A.,
as Administrative Agent
By:
Name:
Title:
2
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SCHEDULE 2.01
Names. Commitments and Addresses for Intial Ban
Commitment
Wells Fargo Ban, Nationa Association
601 West 1 st A venue, Suite 900
Spokae, WA 99201
Attntion: Tom Beil / Jessy Humel
Telecopy: [phone]
$15,000,000
UBS Loan Finance LLC
677 Washington Boulevard
Staford, CT 0690 1
Attention: Denise Bushee
Telecopy: [phone]
$l2,500,000
U.S. Ban National Association
l420 Fif Avenue, 10th Floor
Seattle, W A 98 I 0 1
Attention: Kuran Merchant
[phone]
$10,000,000
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SCHEDULE 3.13
Significant Subsidiares
None.
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SCHEDULE 4.02(a)(ii)
Requied Governenta Approvals
Washington
Order Establishing Compliance with Section 80.08.040 of the Revised Code of Washigton, entered October l7, 2008, in
Docket No. UE-081842 of the Washigton Utilties and Tranporttion Commission ("WUTC'), Order Establishig
Compliance with Section 80.08.040 of the Revised Code of Washigton, entered November 7,2008, in Docket No. UE-
081842 of the WUC and Order Establishig Compliance with Section 80.08.040 of the Revised Code of Washington,
entere November 13,2009, in Docket No. UE-081842 of the WUC.
Oregon
Order No. 09-442, entered November 4, 2009, in fie number UP 4260 from the Public Utiity Commission of Oregon and
Order No. 09-464, entered November 24,2009, in fie number UP 4260(1) from the Public Utility Commission of Oregon.
Idao
Order No. 30673, entered November 6,2008, in Case No. A VU-U-08-02 of the Idao Public Utilities Commission and
electronic message from Terr Carlock of the Idao Public Utilities Commission to Damien Lysiak of the Borrower dated
September 30,2009;
Montaa
Default Order No. 4535, entered July 2, 1979, in Docket No. 6690 of the Public Service Commission of the State of
Montana.
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SCHEDULE 6.01
Existig Secured Indebtedness
Firt Mortgage Bonds Outstading under Mortgage and Deed of Trust Dated as of June 1, 1939,
as Modified by Supplementa Indentues Thereto
Twenty-Seventh Januar 1, 1994 25 Secured Medium-Term Notes, Series B $161,000,000 $ 5,000,000
42 Series due 2018
44 7.25%2013
Fort-sixth September I, 2009 46 5.125% Seres due 2022 $250,000,000 $250,000,000
Aggregate pricipal amount of Firt Mortgage Bonds outstading though and including the Fort-sixth Supplemental
Indentue (but excludig the Fort-seventh Supplementa Indentue) = $ I ,671,700,000.
To be retied in connection with the delivery of $75,000,000 of First Mortgage Bonds, Collateral Series 2009A, pursuant
to the Fort-seventh Supplementa Indentue.
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