20110218Supplemental Indenture, Credit Agreement.pdf

~li~'V'ST4.
Corp.
'ì!ìH fEB \ 8l..vl"
\0: \ 9
daho
Public Utilities Commssion
ehouse
oise il 83720
Attention: Jean D. Jewell, Secretar
Case No. AVU-U-I0-0l
We are submitting the following information in compliance with the Commssion's Order No.
32096 under Case No. AVU-U-I0-0l for the sale of $600,000,000 various debt arrangements.
On February 11, 2011, Avista Corporation (Avista Corp. or the Company) entered into a four-year
commtted line of credit with Union Bank, N.A. as Admnistrative Agent and an Issuing Bank, Wells
Fargo Bank National Association as Syndication Agent and an Issuing Ban, and The Bank of New York
Mellon, Keybank National Association, U.S. Bank National Association as Co-Documentation Agents
and various other lenders in the amount of $400.0 millon with an expiration date of February 11, 2015.
This commtted line of credit replaced the $320.0 million and $75.0 millon commtted line of credit
agreements that had an expiration date of April 5, 2011. The Company can request the issuance of up to
$300.0 millon in letters of credit under the commtted line of credit. The commtted line of credit is
secured by $400.0 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.
The commtted line of credit agreement contains customar covenants and default provisions, including a
covenant not to permt the ratio of "consolidated total debt" to "consolidated total capitalization" of
A vista Corporation to be greater than 65 percent at the end of any fiscal quarter.
Please contact Damien Lysiak at [phone] if you have any questions.
Sincerely,G.c.~
Diane C. Thoren
Treasurer
Enclosure
"CONFORMD COPY
i"i~,..
l '\.'~'" -- "... -
'jIll \ r:cP i qLUi ~ 1 L-t) t ,~j \0: 19
17"".3'-' to:! ITll;II":; ;
AVIS'TÄ'CORPORATION
TO
CITmANK, N.A.
As Successor Trustee under
Mortgage and Deed of Trust,
dated as of June 1,1939
Fifty-first Supplemental Indenture
Providing among other things for a series of bonds designated
"First Mortgage Bonds, Collateral Series 2011A"
Due February 11,2015
Dated as of Februar 1, 2011
FIFTY-FIRST SUPPLEMENTAL INDENTURE
THIS INDENTUR, dated as of the 1st day of Februar, 2011, between
AVISTA CORPORATION (formerly known as The Washington Water Power Company), a
corporation of the State of Washington, whose post offce address is 1411 East Mission Avenue,
Spokane, Washington 99202 (the "Company"), and CITIBANK, N.A., formerly First National
City Bank (successor by merger to First National City Trust Company, formerly City Ban
Farers Trust Company), a national banking association incorporated and existing under the
laws of the United States of America, whose post offce address is 388 Greenwich Street, 14th
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 accordance with the
provisions thereof, this indenture (the "Fifty-first 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 103 of the Original Mortgage, Francis M. Pitt (then Individual Trustee under the
Mortgage, as supplemented) ceased to be a trstee thereunder on July 23, 1969, and all of his
powers as Individual Trustee have devolved upon the Trustee and its successors alone; and
WHEREAS by the Original Mortgage the Company covenanted that it would
execute and deliver such further instrments and do such further 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 forth in Exhibit A hereto (the Original Mortgage, as supplemented and amended by the First
through Fiftieth Supplementa Indentures, being herein sometimes called the "Mortgage"); and
WHEREAS the Original Mortgage and the First through Forty-seventh
Supplemental Indentures have been appropriately fied or recorded in varous official records in
the States of Washington, Idaho, Montana and Oregon, as set forth in the First through Forty-
eighth Supplemental Indentures and the Instrument of Further Assurance, dated December 15,
2001, hereinafter referred to; and
WHEREAS the Forty-eighth Supplemental Indenture, the Forty-ninth
Supplemental Indenture and the Fiftieth Supplemental Indenture, each dated as of December 1,
2010, are being appropriately fied or recorded in the States of Washington, Idaho, Montana and
Oregon, information as to such filing and recording to be set fort in a subsequent supplemental
indenture; and
WHEREAS for the purpose of confirng 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 counterpars dated as of varous dates in 1992,
2
and such instrument has been appropriately fied or recorded in the varous offcial records in the
States of Montana and Oregon; and
WHEREAS for the purpose of confirmng or perfecting the lien of the Mortgage
on certain of its properties, the Company has heretofore executed and delivered an Instrment of
Further Assurance, dated as of December 15,2001, and such instrment has been appropriately
filed or recorded in the varous offcial records in the States of Washington, Idaho, Montana and
Oregon; and
WHEREAS in addition to the property described in the Mortgage the Company
has acquired certain other property, rights and interests in property; 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 purposes set forth 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 Article II; and
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 forth 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 varous 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 referrng 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 the execution and delivery by the Company of this Fifty-first
Supplemental Indenture and the terms of the Bonds of the Fifty-third Series, hereinafter referred
to, have been duly authorized by the Board of Directors of the Company by appropriate
Resolutions of said Board of Directors; and all things necessar to make ths Fifty-first
Supplementa Indenture a valid, binding and legal instrument have been performed;
NOW, THEREFORE, THIS INDENTURE 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 confirms the estate, title and rights of the
Trustee (including, without limitation, the lien of the Mortgage on the property of the Company
subjected thereto, whether now owned or hereafer acquired) held as security 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
3
confirms the grant, 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:
All of the property, 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 impairing 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,
servitudes, 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, dam sites, reservoirs, flumes,
raceways, diversion works, head works, waterways, water works, water systems,
gas plants, steam heat plants, hot water plants, ice or refrgeration plants, stations,
substations, offces, buildings and other works and structures and the equipment
thereof and all improvements, extensions and additions thereto; all generators,
machinery, engines, turbines, boilers, dynamos, transformers, motors, electric
machines, switchboards, regulators, meters, electrcal and mechanical appliances,
conduits, cables, pipes and mains; all lines and systems for the transmission and
distribution 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, furniture, 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 kind or nature.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid property 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, earings, income, product
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
property 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 property, 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
property, rights and franchises had been owned by the Company at the date of the Original
Mortgage and had been specifically described therein.
4
PROVIDED THAT the following were not and were not intended to be then or
now or hereafer granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged,
pledged, set over or confirmed under the Mortgage and were, are and shal 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 purpose 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) electrc energy and other materials or products generated, manufactured,
produced or purchased by the Company for sale, distrbution 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 property and rights
expressly excepted from the lien and operation of the Mortgage in the above subdivisions (2) and
(3) shal (to the extent permtted by law) cease to be so excepted in the event that the Trustee or a
receiver or trustee shall enter upon and take possession of the Mortgaged and Pledged Property
in the manner provided in Aricle XII of the Original Mortgage by reason of the occurrence of a
Completed Default as defined in said Article XII.
TO HAVE AND 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 purposes and upon the same terms,
trsts and conditions and subject to and with the same provisos and covenants as set forth in the
Mortgage, this Fifty-first Supplemental Indenture being supplemental to the Mortgage.
AND IT is HEREBY FURTHER CONFIRED by the Company that all the
terms, conditions, provisos, covenants and provisions contained in the Mortgage shall affect and
apply to the property in the Mortgage described and conveyed, and to the estates, rights,
obligations and duties of the Company and the Trustee and the beneficiares of the trst with
respect to said property, and to the Trustee and its successors in the trust, in the same maner and
with the same effect as if the said property 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 property therein stated to be
conveyed.
The Company further covenants and agrees to and with the Trustee and its
successor or successors in such trust under the Mortgage, as follows:
ARTICLE I
Fifty-third Series of Bonds
SECTION 1. (1) There shall be a series of bonds designated "Collateral Series
2011A" (herein sometimes referred to as the "Bonds of the Fifty-third Series"), each of which
5
shall also bear the descriptive title First Mortgage Bond, and the form thereof, is set forth on
Exhibit B hereto. Bonds of the Fifty-third 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 Fifty-third Series shall mature on Februar 11, 2015 (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 forth below.
(II) The Bonds of the Fifty-third Series shall have the following terms and
characteristics:
(a) the Bonds of the Fifty-third Series shall be initially authenticated and
delivered under the Mortgage in the aggregate principal amount of $400,000,000;
(b) the Bonds of the Fifty-third Series shall bear interest at the rate of eight
per centum (8%) per annum; interest on such Bonds shall accrue from and including the
date of the initial authentication and delivery thereof, except as otherwise provided in the
form of Bond attached hereto as Exhibit B; interest on such Bonds shall be payable on
each Interest Payment Date and at Maturity (as each of such terms is hereinafter defined);
and interest on such Bonds during any period less than one year for which payment is
made shall be computed in accordance with the Credit Agreement (as hereinafter
defined);
(c) the principal of and premium, if any, and interest on each Bond of the
Fifty-third Series payable at Maturity shall be payable upon presentation thereof at the
office or agency of the Company in the Borough of Manhattan, The City of New York, in
such coin or currency as at the time of payment is legal tender for public and private
debts; and the interest on each Bond of the Fifty-third Series (other than interest payable
at Maturity) shall be payable directly to the registered owner thereof;
(d) the Bonds of the Fifty-third Series shall not be redeemable, in whole or in
par, at the option of the Company;
(e) (i) the Bonds of the Fifty-third Series are to be issued and delivered to
the Administrative Agent (as hereinafter defined) 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 hereinafter defined), to the extent and subject to the
limitations set forth in clauses (iii) and (iv) of this subdivision;
(ii) upon the earliest of (A) the occurrence of an Event of Default (as
hereinafter defined), and further upon the condition that, in accordace with the terms of
the Credit Agreement, the Commitments (as so defined) shal have been or shall have
termnated and any Loans (as so defined) outstanding shall have been declared to be or
shall have otherwise become due and payable immediately and the Administrative Agent
shall have demanded that the Company provide cash collateral in the amount of the tota
LC Exposure (as so defined) and the Administrative Agent shall have delivered to the
6
Company a notice demanding redemption of the Bonds of the Fifty-third 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 Article VII of the
Credit Agreement; and (C) the Stated Maturity, then all Bonds of the Fifty-third Series
shall be redeemed or paid immediately at the principal 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 Fifty-third 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 otherwise then
due in respect of interest on the Bonds of the Fifty-third Series);
(iv) the obligation of the Company to pay the principal of and accrued
interest on Bonds of the Fifty-third 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 shal 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 Fifty-third Series).
(v) the Trustee shall be entitled to presume that the obligation of the
Company to pay the principal of and interest on the Bonds of the Fifty-third 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 officer thereof, stating that the principal of and/or interest on the Bonds of
the Fifty-third Series has become due and payable and has not been fully paid, and
speifying 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 ofthe Fifty-third Series;
(g) in the event of an application by the Administrative Agent for a substituted
Bond of the Fifty-third Series pursuant to Section 16 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 16; and
(h) if the Expiration Date shall have been extended pursuant to Section 2.20
of the Credit Agreement, and if the Company shall have furnished to the Trustee written
evidence of such extension, executed by the Administrative Agent, the Stated Maturity
shall, without further act, be deemed to have been extended to the Expiration Date (as so
extended).
(i) the Bonds of the Fifty-third Series shall have such other terms as are set
forth in the form of bond attached hereto as Exhibit B.
7
Anything in this Fifty-first Supplemental Indenture or in the Bonds of the Fifty-
third Series to the contrar notwithstanding, if, at the time of the Maturity of the Bonds of the
Fifty-third Series, the stated aggregate principal amount of such Bonds then Outstanding shall
exceed the aggregate Commtments (as hereinafter defined), the aggregate principal amount of
such Bonds shall be deemed to have been reduced by the amount of such excess.
(il) For all purposes of this Article I, except as otherwise expressly provided
or unless the context otherwise requires, the terms defined below shall have the meanngs
specified:
"Administrative Agent" means Union Bank, N.A., in its capacity as
Admnistrative Agent under the Credit Agreement.
"Bond Delivery Agreement" means the Bond Delivery Agreement, dated
February 11,2011 between the Company and the Administrative Agent.
"Commtments" shall have the meaning specified in the Credit Agreement.
"Credit Agreement" means the Credit Agreement, dated as of Februar 11,
2011, among the Company, the lenders pary thereto, The Bank of New York Mellon,
KeyBan National Association and U.S. Ban National Association, as Co-
Documentation Agents, Wells Fargo Bank, National Association, as Syndication Agent
and an Issuing Bank, and Union Ban, N.A., as Administrative Agent and an Issuing
Ban.
"Event of Default" shall have the meaning specified in the Credit Agreement.
"Expiration Date" shall have the meaning specified in the Credit Agreement.
"Interest Payment Date" means March 31, June 30, September 30 and
December 31.
"LC Exposure" shall have the meaning specified in the Credit Agreement.
"Loans" shall have the meanng specified in the Credit Agreement.
"Maturity" means the date on which the principal of the Bonds of the Fifty-third
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 Februar 11,2015 or such later date to which such date
shall have been extended as provided in subsection II(h) above.
A copy of the Credit Agreement is on fie at the office of the Administrative
Agent at 445 South Figueroa Street, Los Angeles, CA 90071 and at the office of the Company at
1411 East Mission Avenue, Spokane, W A 99202.
8
ARTICLE II
Outstanding Bonds
Upon the delivery of this Fifty-first Supplemental Indenture, Bonds of the Fifty-
third Series in the aggregate principal amount of $400,000,00 are to be issued and wil be
Outstanding, in addition to $1,178,700,000 aggregate principal amount of bonds of prior series
Outstanding at the date of delivery of this Fifty-first Supplemental Indenture (which amount
excludes $320,00,000 in aggregate principal amount of First Mortgage Bonds, Collateral Series
due 2011, and $75,000,000 in aggregate principal amount of First Mortgage Bonds, Collateral
Series 2009A, to be retired simultaneously with the issuance and delivery of the Bonds of the
Fifty-third 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 Fifty-third Series which may be
authenticated and delivered hereunder.
ARTICLE III
Miscellaneous Provisions
SECTION 1. The terms defined in the Original Mortgage shall, for all purposes
of this Fifty-first Supplemental Indenture, have the meanings specified in the Original Mortgage.
SECTION 2. The Trustee hereby confirms its acceptace of the trsts 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 forth, including the following:
The Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity or suffciency of this Fifty-first Supplementa 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 contaned in Aricle XVI of the Original Mortgage shall apply to and form
par of this Fifty-first Supplemental Indenture with the same force and effect as if the same were
herein set forth in full, with such omissions, varations and insertions, if any, as may be
appropriate to make the same conform to the provisions of this Fifty-first Supplemental
Indenture.
SECTION 3. Whenever in this Fifty-first Supplemental Indenture either of the
paries 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 pary,
and all the covenants and agreements in this Fifty-first Supplementa Indenture contained by or
on behalf of the Company, or by or on behalf of the Trustee, 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.
SECTION 4. Nothing in this Fifty-first Supplemental Indenture, expressed or
implied, is intended, or shall be constred, to confer upon, or to give to, any person, firm 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 Fifty-first
Supplemental Indenture or any covenant, condition, stipulation, promise or agreement hereof,
9
and all the covenants, conditions, stipulations, promises and agreements in this Fifty-first
Supplemental Indenture 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 Fifty-first Supplemental Indenture shal be executed in several
counterpars, each of which shall be an original and all of which shall constitute but one and the
same instrument.
SECTION 6. The titles of the several Aricles of this Fifty-first Supplemental
Indenture shall not be deemed to be any par thereof.
10
IN WITNESS WHEREOF, on the 11th day of February, 2011, AVISTA
CORPORATION has caused its corporate name to be hereunto affxed, and this instrment 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 Assistat Corporate Secretaes for and in its
behalf, all in The City of Spokane, Washington, as of the day and year first above written; and on
the 11th day of Februar, 2011, CITIBANK, N.A., has caused its corporate name to be hereunto
affxed, and this instrument to be signed and sealed by its President or one of its Vice Presidents
or one of its Senior Trust Offcers 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 written.
AVISTA CORPORATION
By: lsI Jason R. Thackston
Name: Jason R. Thackston
Title: Vice President
Attest:
lsI Susan Y. Fleming
Name: Susan Y. Fleming
Title: Assistant Corporate Secretar
Executed, sealed and delivered
by A VISTA 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
11
Attest:
lsI Louis Piscitell
Name: Louis Piscitell
Title: Vice President
Executed, sealed and delivered
by CITIBANK, N.A.,
as trustee, in the presence of:
lsI John Hannon
Name: John Hannon
lsI Cirno Emanuele
Name: Cirino Emanuele
CITIBANK, N.A., AS TRUSTEE
By: lsI Wafaa Orfy
Name: WafaaOrfy
Title: Vice President
12
STATE OF WASHINGTON )
) ss.:
COUNTY OF SPOKANE )
On the 11th day of Februar, 2011, 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 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 instrment
and that the seal affixed is the corporate seal of said Corporation.
On the 11th day of Februar, 2011, before me, 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 withn and
foregoing instrment and acknowledged to me that such Corporation executed the same.
IN WITSS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
lsI Rae An Cornell
Notar Public
RA AN CORNLL
Nota Public
State Of Washington
Commssion Expires Januar 29,2014
13
STATE OF NEW YORK )
) ss.:
COUNY OF NEW YORK )
On the 9th day of Februar, 2011, before me personally appeared Wafaa Orfy, to
me known to be a Vice President of CITIBANK, N.A., one of the corporations that executed the
within and foregoing instrument, 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 instrument and that the seal affixed is the corporate seal of
said Corporation.
On the 9th day of Februar, 2011, before me, a Notar Public in and for the State
and County aforesaid, personally appeared Wafaa Orfy, known to me to be an Vice Prsident of
CITIBANK, N.A., one of the corporations that executed the within and foregoing instrment and
acknowledged to me that such Corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
lsI Noreen Irs Santos
Notar Public
NOREEN IRiS SANTOS
Notar Public, State Of New York
Registration #0 1 SA62287 50
Qualified in Nassau County
Commssion Expires Sept. 27, 2014
14
EXHmITA
MORTGAGE, SUPPLEMENTAL INDENTURES
AND SERIES OF BONDS
MORTGAGE OR SERIS PRICIPAL PRICIPAL
SUPPLEMETAL AMOUN AMOUN
INENT DATED AS OF NO.DESIGNATION ISSUED OUTSTANDING
Orginal June 1,1939 1 3-112% Series due 1964 $22,000,000 None
First October 1, 1952 2 3-3/4% Series due 1982 30,000,000 None
Second May 1, 1953 3 3-7/8% Series due 1983 10,000,000 None
Thid December 1, 1955 None
Four March 15, 1957 None
Fift July 1, 1957 4 4-7/8% Series due 1987 30,000,000 None
Sixth Januar I, 1958 5 4-118% Series due 1988 20,000,000 None
Seventh August 1, 1958 6 4-3/8% Series due 1988 15,000,000 None
Eighth Januar I, 1959 7 4-3/4% Series due 1989 15,00,00 None
Ninth Januar 1, 1960 8 5-3/8% Series due 1990 10,000,000 None
Tenth Apri11, 1964 9 4-5/8% Series due 1994 30,000,000 None
Eleventh March 1 ,1965 10 4-5/8% Series due 1995 10,000,000 None
Twelft May 1,1966 None
Thieenth August I, 1966 11 6 % Series due 1996 20,000,000 None
Foureenth April 1, 1970 12 9-114% Series due 2000 20,000,000 None
Fifteenth May 1,1973 13 7-7/8% Series due 2003 20,000,000 None
Sixteenth Februar I, 1975 14 9-3/8% Series due 2005 25,000,000 None
Seventeenth November 1, 1976 15 8-3/4% Series due 2006 30,000,000 None
Eighteenth June I, 1980 None
Nineteenth Januar 1, 1981 16 14-118% Series due 40,000,000 None
1991
A-I
MORTGAGE OR SERIS PRICIPAL PRICIPAL
SUPPLEMENTAL AMOUN AMOUN
INENTUR DATED AS OF NO.DESIGNATION ISUED OUTSTANDG
Twentieth August 1,1982 17 15-3/4% Senes due 60,000,000 None
1990-1992
Twenty-First September 1, 1983 18 13-1/2% Senes due 60,000,000 None
2013
Twenty-Second March 1, 1984 19 13-1/4% Senes due 60,000,000 None
1994
Twenty-Thid December 1, 1986 20 9-1/4% Senes due 2016 80,000,000 None
Twenty-Fourh Januar 1, 1988 21 10-3/8% Senes due 50,000,000 None
2018
Twenty-Fift October 1, 1989 22 7-1/8% Senes due 2013 66,700,000 None
7-2/5% Senes due 2016
23 17,000,000 None
Twenty-Sixth Apnl 1, 1993 24 Secured Medium-Term 250,000,000 43,000,00
Notes, Senes A
($250,000,000
authonzed)
Twenty-Seventh Januar 1, 1994 25 Secured Medium-Term 161,000,000 None
Notes, Senes B
($250,000,000
authonzed)
Twenty-Eighth September 1,2001 26 Collateral Senes due 220,000,000 None
2002
Twenty-Ninth December 1,2001 27 7.75% Senes due 2007 150,000,000 None
Thieth May 1,2002 28 Collateral Senes due 225,000,000 None
2003
Thiy- fist May 1,2003 29 Collateral Senes due 245,000,000 None
2004
Thi-second September 1, 2003 30 6.125% Senes due 2013 45,000,000 None
Thiy-thid May 1,2004 31 Collateral Senes due 350,000,000 None
2005
Th-four November 1, 2004 32 5.45% Senes due 2019 90,000,000 90,000,000
Th-fifth December 1, 2004 33 Collateral Senes 2004A 88,850,000 25,000,000
A-2
MORTGAGE OR ~PRlCIPAL PRlCIPAL
SUPPLEMENTAL AMOUN AMOUN
INENT DATED AS OF NO.DESIGNATION ISUED OUTSTANING
Thi-sixth December 1, 2004 34 Collateral Series 2004B 66,700,000 None
Collateral Series 200C
35 17,000,000 None
Thi-seventh December 1,2004 36 Collateral Series 2004D 350,000,000 None
Thi-eighth May 1,2005 37 Collateral Series 2005B 66,700,000 None
Collateral Series 2005C
38 17,000,000 None
Thiy-ninth November 1, 2005 39 6.25% Series due 2035 100,000,000 100,000,000
50,000,000 50,000,000
Forteth Apri11, 2006 40 Collateral Series due 320,000,000 320,000,0001
2011
Fort-first December 1, 2006 41 5.70% Series due 2037 150,000,000 150,000,000
Forty-second Apri11,2008 42 5.95% Series due 2018 250,000,000 250,000,000
Forty-thd November 1, 2008 43 Collateral Series 2008A 200,000,000 None
Forty-four December 1, 2008 44 7.25% Series due 2013 30,000,000 None
Forty-fift December 1, 2008 45 Collateral Series 2oo8B 17,000,000 None
Forty-sixth September 1, 2009 46 5.125% Series due 2022 250,000,000 250,00,000
Forty-seventh September 1, 2009 47 Collateral Series 2009A 75,000,00 75,000,0001
Forty-eighth December 1,2010 48 Collateral Series 201 OA 66,700,000 66,700,00
49 Collateral Series 201 OB 17,000,000 17,000,000
Fort-ninth December 1, 2010 50 3.89% Series due 2020 52,000,000 52,000,000
51 5.55% Series due 2040 35,000,000 35,000,000
Fiftieth December 1,2010 52 1.68% Series due 2013 50,000,000 50,000,000
To be retied in connection with the delivery of $400,000,000 of First Mortgage Bonds, Collateral Series
20 11 A.
A-3
EXHmITB
(Form of Bond)
This bond is non-tranferable, except to a successor
Admnistrative Agent under the Credit Agreement referred to herein.
AVISTA CORPORATION
First Mortgage Bond,
Collateral Series 2011A
REGISTERED REGISTERED
NO.$400,000,000
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 Februar 11 2015 (or such later date to which such Stated Maturity shall have been
extended as provided below)
DOLLARS
and to pay the registered owner hereof interest thereon from Februar 11, 2011 in arears on
March 31, June 30, September 30 and December 31 of each year, commencing March 31, 2011
(each such date being hereinafter called an "Interest Payment Date") and at Maturity (as
hereinafter defined), at the rate of eight per centum (8%) per annum computed as provided in the
Fifty-first 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 Maturity shall be payable upon presentation
hereof at the office or agency of the Company in the Borough of Manhattan, The City of New
York, in such coin or currency 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 principal shall be paid. As used herein, the term "Maturity" shall
mean the date on which the principal of this 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 2011A, all bonds of all such
series being issued and issuable under and equally secured (except insofar as any sinkng 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 1, 1939 (the "Original Mortgage"), executed by the Company (formerly
B-1
known as The Washington Water Power Company) to City Bank Farers Trust Company and
Ralph E. Morton, as Trustees (Citiban, N.A., successor Trustee to both said Trustees). The
Original Mortgage has been amended and supplemented by varous supplemental indentures,
including the Fifty-first Supplemental Indenture, dated as of Februar 1, 2011 (the "Fifty-first
Supplemental Indenture") and, as so amended and supplemented, is herein called the
"Mortgage." Reference is made to the Mortgage for a description of the property mortgaged and
pledged, the nature and extent of the security, the rights of the holders of the bonds and of the
Trustee in respect thereof, the duties and immunities of the Trustee and the terms and conditions
upon which the bonds are and are to be secured and the circumstances under which additional
bonds may be issued. If there shall be a conflct between the terms of ths bond and the
provisions of the Mortgage, the provisions of the Mortgage shall control to the extent permitted
by law. The holder of this bond, by its acceptance hereof, shall be deemed to have consented
and agreed to all of the terms and provisions of the Mortgage.
The Mortgage may be modified or altered by affrmative vote of the holders of at
least 60% in principal amount of the bonds outstanding 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 affirmative vote only of
60% in pricipal amount of the bonds outstanding of the series so to be affected, considered as
one class, and, furthermore, for limited purposes, 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, permt an extension of the Maturity of the principal of, or interest on,
this bond or a reduction in such principal 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 this series have been issued and delivered to Union Bank, N.A., as
Administrative Agent under the Credit Agreement (as such terms are defined in the Fifty-first
Supplementa Indenture) 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
defined), to the extent and subject to the limitations set fort below.
Upon the earliest of (A) the occurrence of an Event of Default (as defined in the
Fifty-first Supplemental Indenture), and further upon the condition that, in accordance with the
terms of the Credit Agreement, the Commtments (as so defined) shall have been or shall have
termnated and any Loans (as so defined) outstanding shall have been declared to be or shall
have otherwise become due and payable immediately and the Admnistrative Agent shall have
demanded that the Company provide cash collateral in the amount of the total LC Exposure (as
so defined) and the Admnistrative 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 Article VII of the Credit Agreement, (B) the occurrence of an Event of Default under
clause (g) or (h) of Article VII of the Credit Agreement, and (C) the Stated Maturity (as defined
B-2
below), then all bonds of this series shall be redeemed or paid immediately at the principal
amount thereof plus accrued interest to the date of redemption or payment.
The obligation of the Company to pay the accrued interest on bonds of this series
on any Interest Payment Date prior to Maturity (a) shal 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 ofthis series).
The obligation of the Company to pay the principal of and accrued interest on
bonds of this series at or after Maturity (x) shall be deemed to have been satisfied and discharged
in full in the event that al 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 this series).
As used herein, "Stated Maturity" means Februar 11,2015 or such later date to
which such date shall have been extended as provided in the Fifty-first Supplementa Indenture.
Anything in this bond to the contrar notwithstanding, if, at the time of the
Maturity of the bonds of this series, the stated aggregate principal amount of such bonds then
outstanding shall exceed the aggregate Commtments, the aggregate principal amount of such
bonds shal 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
maturity date on the conditions, in the manner and at the time set forth in the Mortgage, upon the
occurrence of a Completed Default as in the Mortgage provided.
As provided in the Mortgage and subject to certain limitations therein set forth,
this 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 principal 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
circumstances, 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 offce or
agency of the Company in the Borough of Manhattan, The City of New York, upon surrender
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,
B-3
thereupon, a new fully registered bond of the same series for a like principal 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 purpose of receiving payment and for all other purposes.
In the manner prescribed in the Mortgage, any bonds of this series, upon
surrender thereof for cancellation at the office or agency of the Company in the Borough of
Manhattan, The City of New York, are exchangeable for a like aggregate principal amount of
bonds of the same series of other authorized denominations.
No recourse shall be had for the payment of the principal of or interest on this
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 through the Company or any predecessor or successor corpration,
under any rule of law, statute or constitution or by the enforcement of any assessment or
otherwise, all such liabilty of incorporators, subscribers, stockholders, offcers and directors
being released by the holder or owner hereof by the acceptance 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 Trustee under the
Mortgage, or its successor thereunder, shall have signed the form of certificate endorsed hereon.
IN WITNESS WHEREOF, AVISTA CORPORATION has caused this bond to
be signed in its corporate name by its President or one of its Vice Presidents by his signature or a
facsimile thereof, and its corporate seal to be impressed or imprinted hereon and attested by its
Corporate Secretar or one of its Assistat Corporate Secretares by his signature or a facsimile
thereof.
Dated:
AVISTA CORPORATION
By:
Name
Title:
ATTEST:
B-4
TRUSTEE'S CERTIFICATE
This bond is one of the bonds, of the series herein designated, described or
provided for in the within-mentioned Mortgage.
CITIBANK, N.A.
Trustee
By:
Authorized Signatory
B-5
.
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 print or tyewrte name and address of assignee)
the within bond of A VISTA CORPORATION and does hereby irrevocably constitute andappoint , Attorney, to transfer said bond on the books of
the within-mentioned Company, wil full power of substitution in the premises.
Dated:
(signature of assignor)
Notice: The signature to this assignment must
correspond with the name as written upon the face
of the bond in every paricular without alteration or
enlargement or any change whatsoever.
B-6
E(~E
2ûll FEB 18 AM to: 20
CREDIT AGREEMENT
dated as of Februar 11, 2011
among
AVISTA CORPORATION,
THE LENDERS PARTY HERETO,
THE BANK OF NEW YORK MELLON, KEYBANK NATIONAL
ASSOCIATION and U.S. BANK NATIONAL ASSOCIATION,
as Co-Documentation Agents,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Syndication Agent and Issuing Ban,
And
UNION BANK, N.A.,
as Administrative Agent and Issuing Ban
UNON BANK, N.A. and WELLS FARGO SECURITIES, LLC,
as Co-Lead Arrangers and Co-Book Managers
402692572v2
TABLE OF CONTNTS
Page
ARTICLE I DEFINITIONS.............................................................................. 1
.Section 1.01 Defined Terms.................................................................. 1
Section 1.02 Terms Generally............................................................... 14
ARTICLE II THE CREDITS.................... .................. ..................................... 15
Section 2.01 Commtments.................................................................. 15
Section 2.02 Loans........................................................................... 15
Section 2.03 Notice of Borrowings......................................................... 17
Section 2.04 Repayment of Loans; Evidence of Debt. . . .. . .. . .. . .. . .. . .. . ... .. . .. . .. . .. . 17
Section 2.05 Letters of Credit............................................................... 18
Section 2.06 Fees................................................................. ............. 22
Section 2.07 Interest on Loans........... .................................................... 23
Section 2.08 Default Interest.. . .. . . . . .. .. .. .. . .. .. . .. . ... .. . .. . .. . . ... .. . .. . .. . .. . .. .. . .. . . .. . 24
Section 2.09 Alternate Rate of Interest.. . .. .. . .. . . .. .. . .. .. .. . .. . .. .. . .. . .. . .. . .. . .. . .. . .. . . 24
Section 2.10 Termnation, Reduction and Increase in Commitments.. ................ 24
Section 2.11 Prepayment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.12 Reserve Requirements; Change in Circumstaces........................ 26
Section 2.13 Change in Legality.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.14 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.15 Pro Rata Treatment.. . . . . . .. . . .. . .. . . .. . .. .. . .. . . ... .. . .. . . . .. . . . . . . . .. . .. . .. . . 29
Section 2.16 Sharng of Setoffs.......................... ..................................... 29
Section 2.17 Payments........................................................................ 30
Section 2.18 Taxes............................................ .................................. 30
Section 2.19 Termnation or Assignment of Commtments under Certain
Circumstances.............. ....................................... ............. 32
Section 2.20 Extension of Expiration Date................................................ 33
Section 2.21 Defaulting Lenders............................................................ 35
ARTICLE III REPRESENTATIONS AND WARRANTIES....................................... 38
Section 3.01 Organization; Powers......................................................... 38
Section 3.02 Authorization.................................................................. 38
Section 3.03 Enforceability............................. ..................................... 38
Section 3.04 Governmental Approvals...................................................... 38
ü
402692572v2
Section 3.05 Financial Statements................. ........................................... 39
Section 3.06 No Material Adverse Change. ... . .. . .. .. .. . .. . .. ... . .. . . . . . . .. . . . . . .. .. . ... . 39
Section 3.07 Litigation' Compliance with Laws.............. .... ................. ....... 39
Section 3.08 Federal Reserve Regulations.. ......... ..................................... 40
Section 3.09 Investment Company Act...................................................... 40
Section 3.10 No Material Misstatements.............. ..................................... 40
Section 3.11 Employee Benefit Plans.................... .................. ................ 40
Section 3.12 Environmental and Safety Matters.............. .... ..... ............ ....... 40
Section 3.13 Significant Subsidiares............................................ .......... 41
ARTICLE IV CONDITIONS TO BORROWINGS, LETTRS OF CREDIT AN
EXTENSIONS....................................................................................... 41
Section 4.01 All Borrowings and Letters of Credit....................................... 41
Section 4.02 First Borrowing or Letter of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 4.03 Extensions.. ........................ ........................ ...................... 44
l\Ft1lICLE" l\FFIRl\1lIV C()"ENl\NTS......................................................... 44
Section 5.01 Existence; Businesses and Properties....................................... 45
Section 5.02 Insurance............................................ ............... ............. 45
Section 5.03 Taxes and Obligations......................................................... 46
Section 5.04 Financial Statements, Reports, etc........................................... 46
Section 5.05 Litigation and Other Notices.................... ......... ................... 47
Section 5.06 ERISA........................................................................... 47
Section 5.07 Maintaining Records; Access to Propertes and Inspections............ 48
Section 5.08 Use of Proceeds and Letters of Credit....................................... 48
ARTICLE VI NEGATIVE COVENANTS............................................................ 48
Section 6.01 Liens.............................................................................. 48
Section 6.02 Sale-Leaseback Transactions.................... .................. .......... 51
Section 6.03 Mergers, Consolidations and Acquisitions................................. 51
Section 6.04 Disposition of Assets............................................................ 52
Section 6.05 Consolidated Total Debt to Consolidated Tota Capitalization Ratio... 53
Section 6.06 Public Utilty Regulatory Borrowing Limits................................. 53
i\RTICLE VII EVENTS OF DEFAULT..... ... .................. ..................................... 53
ARTICLE Vil RELEASE OF COLLATERAL...................................................... 56
Section 8.01 Borrower's Election............................................................ 56
ii
40269272v2
Section 8.02
Section 8.03
Release upon Commtment Reduction.. . .. . .. .. . .. . .. . .. . .. . .. . .... . ... ... . . 56
Release upon Termnation and Repayment.. . .. .. . . .. . .. . . . . .. . . . . .. . .. . .. . 56
ARTICLE IX THE ADMINISTRATIV AGENT................. .................................. 56
Section 9.01 Appointment and Powers...................................................... 56
Section 9.02 Limitation on Liability......................................................... 57
Section 9.03 Other Transactions with Borrower, Etc..................................... 58
Section 9.04 Reimbursement; Indemnification............................................. 58
Section 9.05 Absence of Reliance............................................................ 58
Section 9.06 Resignation of Administrative Agent.. ... .................. ................ 58
Section 9.07 Syndication Agent and Co-Documentation Agents........................ 59
Section 9.08 Removal of Lender............................................... ............. 59
J\Ft1lICLE)( lvISc:ELLJ\NE()lJS..................................................................... 60
Section 10.01 Notices........................................................................... 60
Section 10.02 Survival of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.03 Binding Effect.................................................................. 61
Section 10.04 Successors and Assigns..... ................................. ...... ............. 61
Section 10.05 Expenses; Indemnity, Damage Waiver....................................... 64
Section 10.06 Right of Setoff....................... ........................................... 65
Section 10.07 Applicable Law.................................................................. 65
Section 10.08 Waivers; Amendment......................................................... 65
Section 10.09 Interest Rate Limitation..... .......................................... .......... 66
Section 10.10 Entire Agreement............................................................... 66
Section 10.11 Waiver of Jury Trial. . ... . . . . .. .. . .. .... . . . .. . .. . .. . .. . . .. . . . . . . ... ... . .. . . . .. . . 67
Section 10.12 Severabilty.................... ................................................. 67
Section 10.13 Counterpars...................................... ............... ................ 67
Section 10.14 Headings.. .................................... .................................. 67
Section 10.15 Jurisdiction; Consent to Service of Process................................. 67
Section 10.16 USA Patriot Act Notification................................................ 68
Exhibit A
Exhibit B
Exhibit C
Exhibit D
ExhibitE
Form of Note
Form of Assignment and Assumption
Form of Admnistrative Questionnaire
Form of Commtment Increase Supplement
Form of Commitment Extension Supplement
iv
402692572v2
Schedule 2.01
Schedule 3.13
Schedule 4.02(a)(ii)
Schedule 6.01
40692572v2
Names, Commitments and Addresses of Initial Lenders
Significant Subsidiares
Required Governmental Approvals
Existing Secured Indebtedness
v
CREDIT AGREEMENT, dated as of Februar 11, 2011, among A VISTA
CORPORATION, a Washington corporation, the Lenders listed in Schedule 2.01, THE BANK
OF NEW YORK MELLON, KEYBANK NATIONAL ASSOCIATION and U.S. BANK
NATIONAL ASSOCIATION, as Co-Documentation Agents, WELLS FARGO BANK,
NATIONAL ASSOCIATION, as Syndication Agent and an Issuing Bank, and UNION BANK,
N.A., as Administrative Agent and an Issuing Ban.
The Borrower has requested that the Lenders agree to make loans, and to acquire
paricipations in letters of credit issued by the Issuing Banks, on a revolving credit basis during
the period commencing with the date hereof and ending on the Expiration Date (as defined
herein) in an aggregate principal amount not in excess of $400,000,000 at any time outstanding
(subject to increase at the election of the Borrower by an aggregate amount not to exceed
$100,000,000, upon satisfaction of certain conditions as hereinafter provided). The proceeds of
such borrowings and such letters of credit are to be used for general corporate purposes.
In consideration of the mutual covenants and agreements contained herein, the paries
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. As used in this Agreement, the following terms shal have
the meanings specified below:
"ABR" when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearng interest at a rate determned by
reference to the Alternate Base Rate.
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearng interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of Aricle II.
"Additional Commitent Lender" means (a) a Lender that increases its
Commitment pursuant to Section 2.1 O( c) or 2.20( e) or (b) an Eligible Assignee that becomes a
Lender pursuant to Section 2.1O(c) or 2.20(e).
"Administratve Agent" shall mean Union Ban, as admnistrative agent for the
Lenders under the Loan Documents, and any successor Administrative Agent appointed pursuant
to Section 9.06.
"Administratve Questionnaire" shall mean an Administrative Questionnaire in
the form of Exhibit C.
402692572v2
"Affiliate" shall mean, when used with respect to a specified person, another
person that diectly, or indirectly through one or more intermediares, Controls or is Controlled
by or is under common Control with the person specified.
"Agreement" shall mean this Agreement, including all exhibits and schedules
hereto.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessar, to the nearest 1/16 of 1 %) equal 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) ~ of 1 % and (c) the sum of (i) the Eurodollar Rate for an Interest Period of 1 month
commencing on such day plus (ii) 1 %. If for any reason the Admnistrative Agent shall have
determined (which determnation shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate for any reason, the Alternate Base Rate shal be
determned without regard to clause (b) of the first sentence of this definition unti the
circumstances giving 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, ABR Loans or the LC Parcipation Fee, the rate per anum set forth in the
following table in the "Facilty Fee," "Eurodollar Margin," "ABR Margin" or "LC Paricipation
Fee" column, as applicable, for the Prcing Level in effect for such date.
Prcing Level Facilty Fee
Eurodollar
Margin
LC Parcipation
ABR Margin Fee
I
IIil
iv
V
Vi
1.2
1.30%
1.50%
1.625%
1.875%
2.00%
1.20%
1.30%
1.50%
1.625%
1.875%
2.00%
For purposes of determining which Prcing Level is applicable in the foregoing table the
following rules wil apply:
"Prcing Level I" wil be applicable at any date if, at such date, the Senior Debt Rating is
Fifth Lowest Investment Grade or higher;
"Prcing Level IT' wil be applicable at any date if, at such date, the Senior Debt Rating is
Fourh Lowest Investment Grade and Prcing Level I is not applicable;
"Prcing Level II wil be applicable at any date if, at such date, the Senior Debt Rating
is Third Lowest Investment Grade and neither Prcing Level I nor Prcing Level II is
applicable;
2
402692572v2
"Prcing Level IV" wil be applicable at any date if, at such date, the Senior Debt Rating
is Second Lowest Investment Grade and none of Prcing Level I, Prcing Level II or
Prcing Level il is applicable;
"Prcing Level V" wil be applicable at any date if, at such date, the Senior Debt Rating is
Lowest Investment Grade and none of Prcing Level I, Prcing Level II, Prcing Level III
or Prcing Level IV is applicable;
"Pricing Level Vl' wil be applicable at any date if, at such date, the Senior Debt Rating
is Highest Non-Investment Grade or lower.
"Assignment and Assumption" shall mean an assignment and assumption
agreement entered into by a Lender and an Eligible Assignee in the form of Exhibit B or such
other form as shal be approved by the Administrative Agent.
"Attbutable Debt" shall mean, in connection with any Sale-Leaseback, the
present value (discounted in accordance with GAAP at the discount rate implied in the lease) of
the obligations of the lessee for rental payments during the term of the lease.
"A vailabilit Period" shal mean the period from and including the date of this
Agreement to but excluding the Expiration Date.
"Board" shall mean the Board of Governors of the Federal Reserve System of the
United States.
"Bond Delivery Agreement" shall mean the Bond Delivery Agreement, dated as
of Februar 11,2011, between the Borrower and the Administrative Agent.
"Borrower" shall mean A vista Corporation, a Washington corporation, and its
successors and assigns.
"Borrowing" shall mean a group of Loans of the same Type made on the same
date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.
"Business Day" shall mean any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of California or the State of New York) on which bans 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 banks are
not open for dealngs in deposits in dollars in the London interbank market.
"Capitl Lease Obligatins" 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 property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such person under GAAP and,
for the purposes of this Agreement, the amount of such obligations at any time shall be the
capitalzed amount thereof at such time determned in accordance with GAAP.
3
40692572v2
"Change in Control" means (a) the acquisition of ownership, diectly or
indirectly, beneficially or of record, by any person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in
effect on the date hereof), of shares representing more than 30% of the aggregate ordinar voting
power represented by the issued and outstanding capital stock of the Borrower; or (b) occupation
of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by
persons who were neither (i) nominated by the board of directors of the Borrower nor (ii)
appointed by directors so nominated; provided, that no event described in clause (a) or clause (b)
shall constitute a "Change in Control" if, immediately after giving effect to the transaction that
would otherwise constitute a Change in Control, the Senior Debt Rating assigned by two
nationaly recognized credit rating agencies is equal to or higher than Lowest Investment Grade.
"Closing Date" shall mean the date on which the conditions precedent set forth in
Sections 4.01 and 4.02 are first satisfied or waived.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Commitent" shall mean, with respect to each Lender, (a) (i) in the case of a
Lender listed on Schedule 2.01, the amount set forth opposite such Lender's name under the
heading "Commitment" on such Schedule, (ii) in the case of a person that becomes a Lender
pursuant to Section 2.10 or 2.20, the amount specified as such person's Commtment in the
Commitment Increase Supplement or Commitment Extension Supplement pursuant to which
such person becomes a Lender and (ii) in the case of a person that becomes a Lender pursuant to
an assignment under Section 10.04, the amount specified as assigned to such person in the
Assignment and Assumption pursuant to which such person becomes a Lender, in each case, as
the same may be reduced from time to time pursuant to Section 2.1O(b), increased from time to
time pursuant to Section 2.1O(c) or 2.20(e), or reduced or increased from time to time pursuant to
assignments in accordance with Section 10.04, or (b) as the context may require, the obligation
of such Lender to make Loans or acquire paricipations in Letters of Credit in an aggregate
unpaid principal amount not exceeding such amount.
"Commitent Extension Supplement" shall have the meaning assigned to such
term in Section 2.20(e).
"Commitment Increase Supplement" shall have the meaning assigned to such
term in Section 2.1O(c).
"Consolidted Total Capitlizaton" on any date means the sum, without
duplication, of the following with respect to the Borrower and its consolidated Subsidiares: (a)
total capitalization as of such date, as determned in accordance with GAAP, (b) the current
portion of liabilties which as of such date would be classified in whole or par as long-term debt
in accordance with GAAP (it being understood that the noncurrent portion of such liabilties is
included in the total capitalization referred to in clause (a)), (c) all obligations as lessee which, in
accordance with GAAP, are capitalized as liabilties (including the current portion thereof), and
(d) al other liabilties which would be classified as short-term debt in accordance with GAAP.
4
402692572v2
"Consolidated Total Debt" on any date means 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 GAAP (including the current portion thereof), (b) al obligations as lessee which, in
accordance with GAAP, are capitaized as liabilties (including the current porton thereof), (c)
all other liabilties which would be classified as short-term debt in accordance with GAAP, and
(d) al Guarantees of or by the Borrower.
"Control" shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a person, whether through the ownership
of voting securities, by contract or otherwise, and "Controllng" and "Controlled" shall have
meanings correlative thereto.
"Current Expiraton Date" shall have the meanng assigned to such term in
Section 2.20(a).
"Default" shall mean any event or condition which upon notice, lapse of tie or
both would constitute an Event of Default.
"Defaulting Lender" shal mean, at any time, subject to Section 2.21 (d), any
Lender that at such time (a) has failed to perform any of its funding obligations hereunder,
including in respect of its Loans or its parcipations in Letters of Credit, within two Business
Days of the date on which any funding is required by it hereunder, (b) has notified the Borrower
or the Admnistrative Agent that it does not intend to comply with its funding obligations or has
made a public statement to that effect with respect to its funding obligations hereunder or
generally under other agreements in which it commits to extend credit, (c) has failed, within
three Business Days after written request by the Administrative Agent (based on its reasonable
belief that such Lender may not fulfill its funding obligations hereunder), to confirm in a manner
reasonably satisfactory to the Administrative Agent that it wil comply with its funding
obligations hereunder or (d) has, or has a direct or indirect parent company that has, (i) become
the subject of a proceeding under any debtor-relief law, (ii) had a receiver, conservator, trstee,
administrator, assignee for the benefit of creditors or similar person charged with reorganization
or liquidation of its business or a custodian appointed for it or (iii) taken any action in
furtherance of, or indicated its consent to, approval of or acquiescence in, any such proceeding or
appointment; provided, however, that a Lender shal not be a Defaulting Lender solely by virtue
of the control, ownership or acquisition of any equity interest in that Lender or any direct or
indirect parent company thereof by a Governmental Authority.
"dollars" or "$" shall mean lawful money of the United States of America.
"Electronic Delivery" shall have the meaning assigned to such term in Section
5.04(a).
"Eligible Assignee" means (a) a financial institution organzed under the laws of
the United States of America, or any state thereof, and having a combined capital and surplus of
at least $100,000,00 or the obligations of which are directly guaranteed by a financial institution
organzed under the laws of the United States of America, or any state thereof, and having a
5
40292572v2
combined capital and surplus of at least $100,00,000; (b) a commercial ban organized under
the laws of any other country that is a member of the Organzation for Economic Cooperation
and Development, or a political subdivision of any such countr, and having a combined capita
and surplus of at least $100,000,00, provided that such ban is acting through a branch or
agency located in the United States of America; (c) a Person that is (i) a subsidiar of a Lender,
(ii) a subsidiar of a Person of which a Lender is a subsidiar or (iii) a Person of which a Lender
is a subsidiar; or (d) another Lender; provided, however, that neither the Borrower nor any
Affliate of the Borrower, nor any Defaulting Lender, shall qualify as an Eligible Assignee.
"Equit Interests" shall mean shares of stock, parnership 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.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" 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 Loans comprising such Borrowing, are bearng interest at a rate
determned by reference to the Eurodollar Rate.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Loan bearng interest at a rate determined by
reference to the Eurodollar Rate in accordance with the provisions of Aricle II.
"Eurodollar Rate" shall mean, for any Interest Period, the rate of interest per
annum (rounded upwards, if necessar, to the nearest 11100 of 1%) equal to (a) the rate
appearng on Bloomberg screen BBAM (or any successor thereto) as the London interbank
offered rate for deposits in dollars at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period for a term comparable to such Interest Period
(provided, however, if more than one such rate is specified on Bloomberg screen BBAM, the
applicable rate shall be the arthmetic mean of all such rates), multiplied by (b) the Statutory
Reserve Rate. If, for any reason, the rate specified in clause (a) above is not available for any
Interest Period, there shall be substituted for such rate, for such Interest Period, the rate per
annum (rounded upwards, if necessar, to the nearest 11100 of 1 %) equal to the rate determned
by the Admnistrative Agent to be the offered rate on another page or service that displays an
average British Baners Association Interest Settlement Rate for deposits in dollars (for delivery
on the first day of such Interest Period) with a term equivalent to such Interest Period,
determned as of approximately 11:00 a.m. (London time) 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 substituted for the rate speified in clause (a)
6
402692572v2
above the rate per annum (rounded upwards, if necessar, to the nearest 11100 of 1 %) equal to
the rate that would be offered to first-class banks in the London interban market by Union Bank
for deposits (for delivery on the first day of the relevant Interest Period) in dollars of amounts in
same-day funds comparable to the principal amount of the applicable Loan by Union Ban for
which the Eurodollar Rate is then being determined with maturities comparable to such Interest
Period as of approximately 11 :00 a.m. (London time) two Business Days prior to the first day of
such Interest Period.
"Event of Default" shall have the meanng assigned to such term in Article VII.
"Evergreen Letter of Credit" shall mean a Letter of Credit that, by its terms,
provides that it shall be automatically renewed or extended for a stated period of time at the end
of its then scheduled expiration date unless the Issuing Ban thereof notifies the beneficiar
thereof prior to such expiration date that such Issuing Ban elects not to renew or extend such
Letter of Credit.
"Existing Commitents" shall have the meaning assigned to such term in
Section 2.20(c).
"Expiration Date" shall mean the fourth anniversar of the Closing Date or any
later date to which such date shall have been extended pursuant to Section 2.20.
"Extending Lender" shall have the meaning assigned to such term in Section
2.20(a).
"Facility Fee" shall have the meaning assigned to such term in Section 2.06(a).
"Federal Funds Effective Rate" shall mean, for any Business Day, the weighted
average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System aranged by Federal funds brokers, as reported on such Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so reported for any day that is a
Business Day, the average of the quotations for the day of such transactions received by the
Admnistrative Agent from thee Federal funds brokers of recognized standing selected by it.
"Fees" shall mean the Facility Fee and the other fees referred to in Section 2.06.
"Fifth Lowest Investment Grade" shall mean that the Senior Debt Rating
assigned to the applicable Indebtedness of the Borrower is a rating which, as reasonably
determned by the Administrative Agent, would be the rating granted by the applicable credit-
rating agency which is generally treated as "investment grade" in the ratings regime of that
credit-rating agency and is higher than Fourt Lowest Investment Grade.
"Financial Offier" of any corporation shall mean the chief financial officer or
treasurer of such corporation.
"First Mortgage" shall mean the Mortgage and Deed of Trust dated as of June 1,
1939, made by the Borrower in favor of Citiban, N.A., as successor trstee, as the same has
7
4092572v2
been amended, modified or supplemented to date and as the same may be further amended,
modified or supplemented from time to time hereafter.
"First Mortgage Bond" shall mean (a) a first mortgage bond of the Fifty-third
Series issued to the Administrative Agent on the Closing Date under a supplementa indenture to
the First Mortgage, in a principal amount equal to the total Commtments on the date of
execution and delivery of this 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 Administrative Agent pursuant to this Agreement,
including in connection with an increase in the tota Commitments pursuant to Section 2.1O(c) or
a reduction in the total Commtments pursuant to Section 2.1O(b), 2.20 or 9.08(a).
"Fourth Lowest Investment Grade" shall mean that the Senior Debt Rating
assigned to the applicable Indebtedness of the Borrower is a rating which, as reasonably
determned by the Administrative Agent, would be the rating granted by the applicable credit-
rating agency which is generally treated as "investment grade" in the ratings regime of that
credit-rating agency and is higher than Third Lowest Investment Grade but lower than Fifth
Lowest Investment Grade.
"GAAP" shall mean generally accepted accounting principles, applied on a
consistent basis.
"Governmental Authori" shall mean, whether domestic or foreign, any
national, federal, state or local governent, any political subdivision thereof, or any
governmental, quasi-governmental, judicial, public or statutory agency, authority,
instrmentality, body or entity, including any central ban and any comparable authority.
"Guarantee" of or by any person shal mean any obligation, contingent or
otherwise, of such person guaranteeing or having the economic effect of guaranteeing any
Indebtedness of any other person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such person, direct or indirect, (a) to purchase or pay
(or to advance or supply funds for the purchase or payment of) such Indebtedness or to purchase
(or to advance or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase property, securities or services for the purpose of assuring the
owner of such Indebtedness of the payment of such Indebtedness or (c) to maintan working
capital, equity capital or other financial statement condition or liquidity of the primar 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 course of business.
"Highest Non-Investment Grade" shall mean that the Senior Debt Rating
assigned to the applicable Indebtedness of the Borrower is a rating which, as reasonably
determned by the Administrative Agent, would be the highest rating granted by the applicable
credit-rating agency which is generally not treated as "investment grade" in the ratings regime of
that credit-rating agency.
8
402692572v2
"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 kind, (b) all
obligations of such person evidenced by bonds, debentures, notes or similar instrments, (c) all
obligations of such person upon which interest charges are customarly paid, (d) all obligations
of such person under conditional-sale or other title-retention agreements relating to property or
assets purchased by such person, (e) all obligations of such person issued or assumed as the
deferred purchase price of property or services (other than trade payables incurred in the ordinar
course of business), (f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such person, whether or not the obligations secured thereby have
been assumed, but limited, if such obligations are without recourse to such person, to the lesser
of the principal amount of such Indebtedness or the fai-market value of such property, (g) all
Guarantees by such person of Indebtedness of others, (h) all Capital Lease Obligations of such
person, (i) all obligations of such person in respect of interest rate protection agreements, foreign
currency exchange agreements or other interest or exchange rate hedging arangements (the
amount of any such obligation to be the amount that would be payable upon the acceleration,
termnation or liquidation thereof) and G) all obligations of such person as an account pary in
respect of letters of credit and baners' acceptances. The Indebtedness of any person shal
include the Indebtedness of any parnership in which such person is a general parer.
"Interest Payment Date" shall mean (a) in the case of any Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a par and (b) in addition,
in the case of a Eurodollar Loan that is par of a Eurodollar Borrowing with an Interest Period of
more than three months' duration, each day that would have been an Interest Payment Date had
successive Interest Periods of three months' duration been applicable to such Borrowing.
"Interest Perid" shall mean (a) as to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on, as the Borrower may elect, the date 2
weeks thereafter or the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1,2, 3 or 6 months thereafer,
and (b) as to any ABR Borrowing, the period commencing on the date of such Borrowing and
ending on the earlier of (i) the next succeeding March 31, June 30, September 30 or December
31 and (ii) the Expiration Date; provided, however, that if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next succeeding Business
Day would fall in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day. Interest shall accrue from and including the first day of an Interest
Period to but excluding the last day of such Interest Period.
"Issuing Bank" shall mean Union Ban or Wells Fargo Ban, in each case acting
in its capacity as the issuer of a Letter of Credit, or any Lender (or other financial institution
satisfactory to the Borrower and the Admnistrative Agent) succeeding to such capacity or added
in such capacity pursuant to Section 2.05(k). The Issuing Bank of a Letter of Credit may, in its
discretion, arange for one or more Letters of Credit to be issued by Affiliates of such Issuing
Bank, in which case the term "Issuing Ban" shall include any such Affiliate with respect to any
Letters of Credit issued by such Affiliate.
9
402692572v2
"Issuing Bank Exposure" shal mean, with respect to any Issuing Bank at any
time, the sum of (a) the aggregate undrawn amount of all outstading Letters of Credit issued by
such Issuing Ban at such time plus (b) the aggregate amount of all LC Disbursements by such
Issuing Ban that have not yet been reimbursed by or on behalf of the Borrower at such time.
"LC Disbursement" shall mean a payment made by an Issuing Ban pursuant to a
Letter of Credit.
"LC Exposure" shal mean, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC
Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time.
The LC Exposure of any Lender at any time shall be its Pro Rata Share of the total LC Exposure
at such time.
"LC Partipatin Fee" shall have the meaning assigned to such term in Section
2.06(b).
"Lender" shall mean (a) any person listed on Schedule 2.01, (b) any person that
becomes a Lender pursuant to Section 2.1O( c) or 2.20( e) and (c) any person that is assigned any
or all of the rights or obligations of a Lender pursuant to Section 10.04.
"Letter of Credit" shall mean (a) each standby letter of credit issued pursuant to
this Agreement and (b) each standby letter of credit issued under the 200 Credit Agreement and
outstanding on the Closing Date.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, encumbrance, charge or security interest in or on such asset, (b) the interest of a vendor
or a lessor under any conditional-sale agreement, capital lease or title-retention agreement
relating to such asset and (c) in the case of securities, any purchase option, call or similar right of
a third pary with respect to such securities.
"Loan Documents" shall mean this Agreement, the First Mortgage Bond, the
First Mortgage, the Supplemental Indenture, the Bond Delivery Agreement, any Notes, any letter
of credit applications executed and delivered by the Borrower with respect to Letters of Credit,
each letter agreement between the Borrower and an Issuing Ban referred to in Section 2.05(a),
the agreement between the Borrower and the Administrative Agent referred to in Section 2.06( c)
and the Funds Transfer Agreement and related documents referred to in Section 4.02(a)(xii).
"Loans" shall mean loans made by the Lenders to the Borrower pursuant to this
Agreement.
"Lowest Investment Grade" shall mean that the Senior Debt Rating assigned to
the applicable Indebtedness of the Borrower is a rating which, as reasonably determined by the
Administrative Agent, would be the lowest rating granted by the applicable credit-rating agency
which is generally treated as "investment grade" in the ratings regime of that credit-rating
agency.
"Margin Stock" shall have the meanng given such term under Regulation U.
10
409272v2
"Materil Adverse Effect" shall mean an effect on the business, assets, operations
or financial condition of the Borrower and the Subsidiares taken as a whole which could
reasonably be expected to have a material adverse effect on the creditworthiness of the
Borrower.
"non-Defaulting Lenders" shall have the meaning assigned to such term in
Section 2.21(a)(i).
"Notes" shall mean any promissory notes of the Borrower, substantialy in the
form of Exhibit A, evidencing Loans, as may be delivered pursuant to Section 2.04.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"person" shall mean (a) a corporation, association, parnership, trust, limited
liabilty company, organization, business or individual or (b) a Governmental 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 Affiliate.
"Pro Rata Share" shal mean, with respect to any Lender, the percentage of the
total Commtments represented by such Lender's Commtment. If the Commitments have
terminated or expired, the Pro Rata Shares of the Lenders shall be determned based upon the
Commitments most recently in effect.
"Reference Rate" shall mean the varable rate of interest per annum established
by Union Ban from time to time as its "reference rate." Such "reference rate" is set by Union
Bank as a general reference rate of interest for "prime" commercial lending transactions, takng
into account such factors as Union Bank 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 charged to any customer and that Union Ban may
make varous commercial or other loans at rates of interest having no relationship to such rate.
For purposes of this Agreement, each change in the Reference Rate shall be effective as of the
opening of business on the date announced as the effective date of any change in such "reference
rate."
"Register" shall have the meaning given to such term in Section 1O.04(c).
"Regulaon D" shall mean Regulation D of the Board as from time to time in
effect and all offcial rulings and interpretations thereunder or thereof and shall include any
successor or other regulation or offcial interpretation of the Board relating to reserve
requirements applicable to member bans of the Federal Reserve System.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and al official rulings and interpretations thereunder or thereof.
11
402692572v2
"Regulatin X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Reportable Event" shall mean any reportable event as defined in Section
4043(b) of ERISA or the regulations issued thereunder with respect to a Plan (other than a Plan
maintained by an ERISA Affiliate which is considered an ERISA Affliate only pursuant to
subsection (m) or (0) of Section 414 of the Code).
"Required Lenders" shall mean, at any time, Lenders having Revolving Credit
Exposures representing more than 50.0% of the aggregate Revolving Credit Exposures or, if
there shall be no Revolving Credit Exposures, Lenders having Commtments representing more
than 50.0% of the aggregate Commtments; provided, however, that if any Lender is a Defaulting
Lender at such time, then the Commtment of such Lender shall be excluded from the
determnation of Required Lenders at such time.
"Responsible Officer" of any corporation shall mean any executive officer or
Financial Offcer of such corporation and any other offcer or similar offcial thereof responsible
for the admnistration of the obligations of such corporation in respect of this Agreement.
"Revolving Credit Exposure" shall mean, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Loans and its LC Exposure at such
time.
"RTO Transaction" shall mean any sale, transfer or other disposition of
transmission assets entered into in connection with the formation of a regional transmission
organization pursuant to or in a manner consistent with regulatory requirements applicable to the
Borrower.
"Sale-Leaseback" shall mean any arangement whereby any person shall sell or
transfer any property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property which it intends to
use for substantially the same purpose or purposes as the property being sold or transferred.
"Second Lowest Investment Grade" shall mean that the Senior Debt Rating
assigned to the applicable Indebtedness of the Borrower is a rating which, as reasonably
determined by the Administrative Agent, would be the rating granted by the applicable credit-
rating agency which is generally treated as "investment grade" in the ratings regime of that
credit-rating agency and is higher than Lowest Investment Grade but lower than Third Lowest
Investment Grade.
"Senior Debt Ratng" means, as of any date of determination, as of the close of
business on such date, (a) if the obligations of the Borrower under this Agreement are secured by
the First Mortgage and are not rated, the rating assigned to the Borrower's most senior secured
long-term public Indebtedness (without credit enhancement), (b) if such obligations are not
secured by the First Mortgage and are not rated, the rating assigned to the Borrower's most
senior unsecured long-term public Indebtedness (without credit enhancement) and (c) if such
obligations are rated, the rating assigned to such obligations (without credit enhancement), in
each such case by a nationally recognized credit-rating agency designated by the Borrower,
12
402692572v2
reasonably approved by the Administrative Agent and not objected to by the Required Lenders
within five Business Days following notice of such designation. Notwithstanding the foregoing,
(i) if the Senior Debt Rating(s) assigned by any of the other nationally recognzed credit-rating
agencies is or are different from the Senior Debt Rating assigned by the agency designated by the
Borrower and the ratings (including that of the agency designated by the Borrower) are split by
just one level, then the higher rating wil apply, and (ii) if the ratings (including that of the
agency designated by the Borrower) are split by more than one level, then the level that is one
level below the highest rating wil apply.
"Significant Subsidiary" shall mean a Subsidiar meeting 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 total assets of the Borrower and its Subsidiares at such date, computed and
consolidated in accordance with GAAP; or (b) the Borrower's and the other Subsidiares'
proportionate share of the total assets (afer intercompany eliminations) of such Subsidiar as at
the end of the Borrower's latest fiscal quarer exceeded 10% of the total assets of the Borrower
and its Subsidiares at such date, computed and consolidated in accordance with GAAP; or (c)
the equity in the income from continuing operations before income taxes, extraordinar items
and cumulative effect of a change in accounting principles of such Subsidiar (excluding
amounts attributable to any minority interests therein) 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 accordance
with GAAP; 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 (including for any marginal, special,
emergency or supplemental reserves), expressed as a decimal, established by the Board and to
which Union Ban is subject for Eurocurrency funding (currently referred to as "Eurocurrency
liabilties" in Regulation D). Such reserve percentages shall include those imposed pursuant to
Regulation D. Eurodollar Loans shall be deemed to constitute Eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration, exemptions or
offsets that might be available from time to time to any Lender 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
liabilty company, parership or other entity of which securities or other ownership interests
having by the terms thereof ordinar voting power to elect a majority of the board of directors or
other persons performing similar functions of such corporation, limited liabilty company,
parnership or other entity (irrespective of whether or not at the time securities or other
ownership interests of any other class or classes of such corporation, limited liabilty company,
parnership or other entity shall have or might have voting power by reason of the happening of
any contingency) are at the time directly or indirectly owned or controlled by the Parent or one
or more of its subsidiares or by the Parent and one or more of its subsidiares.
13
40292572v2
"Subsidiary" shall mean a subsidiar of the Borrower.
"Supplemental Indenture" shall mean (a) the Fifty-first Supplemental Indenture,
dated as of Februar 1,2011, between the Borrower and Citiban, N.A., as trstee under the First
Mortgage, and/or (b) any supplemental indenture to the First Mortgage, in form and substance
satisfactory to the Admiistrative Agent, pursuant to which a first mortgage bond is issued in
addition to, or in substitution for, a first mortgage bond previously delivered to the
Administrative Agent pursuant to this Agreement, including in connection with an increase in the
total Commitments pursuant to Section 2.1 O( c) or a reduction in the total Commitments pursuant
to Section 2.1O(b), 2.20 or 9.08(a).
"Terminatng Lender" shall have the meaning assigned to such term in Section
2.20(c).
"Third Lowest Investment Grade" shall mean that the Senior Debt Rating
assigned to the applicable Indebtedness of the Borrower is a rating which, as reasonably
determined by the Administrative Agent, would be the rating granted by the applicable credit-
rating agency which is generally treated as "investment grade" in the ratings regime of that
credit-rating agency and is higher than Second Lowest Investment Grade but lower than Fourh
Lowest Investment Grade.
"Transactions" shall have the meaning assigned to such term in Section 3.02.
"Transferee" shall have the meaning assigned to such term in Section 2.18(a).
"2004 Credit Agreement" shall mean the Credit Agreement dated as of December
17,200, as amended to the date hereof, among the Borrower, the bans pary thereto as lenders,
Ban of America, N.A., as managing agent, KeyBan, National Association, as documentation
agent, U.S. Bank, National Association, as documentation agent, Wells Fargo, as documentation
agent and an issuing bank, Union Ban, as syndication agent and an issuing ban, and The Ban
of New York Mellon, as administrative agent and an issuing ban.
"2009 Credit Agreement" shall mean the Credit Agreement dated as of
November 25, 2009 among the Borrower, the financial institutions pary thereto as lenders,
JPMorgan Chase Ban, N.A. and UBS Securities LLC, as co-documentation agents, Wells Fargo
Securities, LLC as syndication agent, and Union Ban, as administrative agent.
"Type," when used in respect of any Loan or Borrowing, shall refer to the Rate by
reference to which interest on such Loan or on the Loans comprising such Borrowing is
determined. For purposes hereof, "Rate" shall mean, in the case of a Loan or Borrowing, the
Eurodollar Rate or the Alternate Base Rate.
"Union Bank" shal mean Union Ban, N.A.
"Wells Fargo Bank" shall mean Wells Fargo Bank, National Association.
Section 1.02 Terms Generally. The definitions in Section 1.01 shal apply equaly to
both the singular and plural forms of the terms defined. Whenever the context may require, any
14
4092572v2
pronoun shall include the corresponding masculine, feminine and neuter forms. The words
"include," "includes" and "including" shall be deemed to be followed by the phrase "without
limitation." All references herein to Aricles, Sections, Exhibits and Schedules shall be deemed
references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the
context shall otherwise require. Except as otherwise expressly provided herein, all accounting
terms not otherwise defined herein shall have the meanings assigned to them in conformty with
GAAP as in effect at that time. Financial statements and other information required to be
delivered by the Borrower to the Admnistrative Agent, the Lenders and the Issuing Bans
pursuant to Section 5.04 shall be prepared in accordance with GAAP as in effect at the time of
such preparation, and calculations in connection with the definitions, covenants and other
provisions hereof shall utilze accounting principles and policies in conformty with GAAP as in
effect at the time of such preparation. If the Borrower notifies the Administrative Agent that the
Borrower requests an amendment to any provision hereof to eliminate the effect of any change
occurrng after the date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, such provision
shall be interpreted on the basis of GAAP as in effect at that time until such provision is
amended in accordance herewith.
ARTICLE II
THE CREDITS
Section 2.01 Commitments. Subject to the terms and conditions and relying upon the
representations and waranties herein set forth, each Lender agrees, severally and not jointly, to
make Loans to the Borrower, at any time and from time to time during the Availabilty Period, in
an aggregate principal amount at any time outstanding that wil not result in (a) the Revolving
Credit Exposure of any Lender exceeding such Lender's Commtment or (b) the total Revolving
Credit Exposures exceeding the total Commtments. Within the limits set forth in the preceding
sentence, the Borrower may borrow, payor prepay, and reborrow Loans during the Availabilty
Period, subject to the terms, conditions and limitations set forth herein.
Section 2.02 Loans.
(a) Each Loan shall be made as par of a Borrowing consisting of Loans made
by the Lenders ratably in accordance with their Commtments. The failure of any Lender to
make any Loan required to be made hereunder shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender shal be responsible
for the failure of any other Lender to make any Loan required to be made by such other Lender).
The Loans comprising each Borrowing shall be in the aggregate principal amount of $1,000,00
or a whole-integer multiple of $100,00 in excess thereof.
(b) Subject to Section 2.09, each Borrowing shall be comprised entirely of
ABR Loans or Eurodollar Loans, as the Borrower may request pursuant to Section 2.03. Each
Lender may at its option fulfill its Commitment with respect to any Eurodollar Loan by causing
any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to repay such Loan in
15
402692572v2
accordance with the terms of this Agreement or any applicable Note. Borrowings of more than
one Type may be outstading at the same time; provided, however, that the Borrower shall not
be entitled to request any Borrowing which, if made, would result in an aggregate of more than
fifteen separate Eurodollar Loans of any Lender being outstanding hereunder at anyone time.
For purposes of the foregoing, Loans having different Interest Periods, regardless of whether
they commence on the same date, shall be considered separate Loans.
(c) Subject to paragraph (e) below, each Lender shall make a Loan in the
amount of its Pro Rata Share of each Borrowing on the proposed date thereof by wire transfer of
immediately available funds to the Admnistrative Agent in Los Angeles, California, not later
than 11 :00 a.m., Pacific time, and the Administrative Agent shall by 1:00 p.m., Pacific time,
make available to the Borrower in immediately available funds the amounts so received (i) by
wire transfer for credit to the account of the Borrower with Wells Fargo Bank bearng Account
Number 41688 14770, ABA # 121000248, re: Avista Corp. or (ii) as otherwise specified by the
Borrower in its notice of Borrowing or, if a Borrowing shall not occur on such date because any
condition precedent herein specified shall not have been met, return the amounts so received to
the respective Lenders. Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Eurodollar Borrowing or prior to 11:00 a.m., Pacific time, on the
date of any ABR Borrowing that such Lender wil not make available to the Administrative
Agent such Lender's portion of such Borrowing, the Administrative Agent may assume that such
Lender has made such portion available to the Admnistrative Agent on the date of such
Borrowing in accordance with this paragraph (c), and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a corresponding amount. If
and to the extent that such Lender shall not have made such portion available to the
Admnistrative Agent, such Lender and the Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the Borrower until the date
such amount is repaid to the Administrative Agent, at (i) in the case of the Borrower, the interest
rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Effective Rate. If such Lender shal repay to the Admnistrative
Agent such corresponding amount, such amount shall constitute such Lender's Loan as par of
such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Borrowing if the Interest Period requested with respect thereto
would end afer the Expiration Date.
(e) The Borrower may refinance 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 forth in
this Agreement. Any Borrowing or par thereof so refinanced shall be deemed to be repaid or
prepaid in accordance with Section 2.04 or 2.11, as applicable, with the proceeds of the new
Borrowing, and the proceeds of the new Borrowing, to the extent they do not exceed the
principal amount of the Borrowing being refinanced, shall not be paid by the Lenders to the
Admnistrative Agent or by the Administrative Agent to the Borrower pursuant to paragraph (c)
above.
16
40692572v2
Section 2.03 Notice of Borrowings. To request a Borrowing, the Borrower shall give
the Administrative Agent notice thereof (a) in the case of a Eurodollar Borrowing, not later than
9:00 a.m., Pacific time, three Business Days before a proposed borrowing and (b) in the case of
an ABR Borrowing, not later than 9:00 a.m., Pacific time, the day of a proposed borrowing.
Such notice shal be irrevocable and shall in each case refer to this Agreement and specify (i)
whether the Borrowing then being requested is to be a Eurodollar Borrowing or an ABR
Borrowing; (ii) the date of such Borrowing (which shall be a Business Day) and the amount
thereof; and (iii) if such Borrowing is to be a Eurodollar Borrowing, the Interest Period with
respect thereto. If no election as to the Type of Borrowing is specified in any such notice, then
the requested Borrowing shal be an ABR Borrowing. If no Interest Period with respect to any
Eurodollar Borrowing is specified in any such notice, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration. If the Borrower shall not have given notice
in accordance with this Section 2.03 of its election to refinance a Borrowing or given notice to
the Administrative Agent not later than 9:00 a.m., Pacific time, on the last day of the Interest
Period applicable to such Borrowing that it wil not refinance such Borrowing, then the Borrower
shall be deemed to have given notice of an election to refinance such Borrowing with an ABR
Borrowing. The Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.03 and of each Lender's portion of the requested Borrowing.
Section 2.04 Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay each Lender the
then unpaid principal amount of each Loan of such Lender 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 principal balance thereof as set forth in Section 2.07.
(b) Each Lender shall maintan in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from
each Loan made by such Lender, including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record
(i) the amount and date of each Loan made hereunder, the Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal, interest or fees due and payable or to become
due and payable from the Borrower to each Lender hereunder and (iii) the amount of any
principal, interest or fees received by the Administrative Agent hereunder for the account of the
Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or
(c) of this Section shall be prima facie evidence of the existence and amounts of the obligations
recorded therein; provided that the failure of any Lender or the Administrative Agent to maintan
such accounts or any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a Note.
In such event, the Borrower shall prepare, execute and deliver to such Lender a Note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its registered
17
40692572v2
assigns). Thereafter, the Loans evidenced by such Note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one or more Notes in
such form payable to the order of the payee named therein (or, if such Note is a registered Note,
to such payee and its registered assigns).
Section 2.05 Letters of Credit.
(a) Subject to the terms and conditions set forth herein, the Borrower may
request the issuance of Letters of Credit for its own account, in a form reasonably acceptable to
the Administrative Agent and the applicable Issuing Ban, at any time and from time to time
during the Availability Period. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by the Borrower
with, an Issuing Ban relating to any Letter of Credit, the terms and conditions of this Agreement
shall control; provided, however, that any letter agreement entered into by the Borrower with an
Issuing Bank from time to time with respect to the maximum Issuing Ban Exposure of such
Issuing Bank shall control with respect thereto.
(b) To request the issuance of a Letter of Credit (or the renewal, extension or
other amendment of an outstanding Letter of Credit), the Borrower shall hand-deliver or telecopy
(or transmit by electronic communication, if arangements for doing so have been approved by
the applicable Issuing Bank) to the applicable Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, renewal, extension or other
amendment) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be renewed, extended or otherwise amended, and specifying the date of issuance,
renewal, extension or other amendment (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount
of such Letter of Credit, the name and address of the beneficiar thereof and such other
information as shall be necessar to prepare, renew, extend or otherwise amend such .Letter of
Credit. If requested by such Issuing Bank, the Borrower shall also submit a letter of credit
application on such Issuing Bank's standard form in connection with any request for a Letter of
Credit. A Letter of Credit shal be issued, renewed, extended or otherwise amended only if (and
upon the issuance, renewal, extension or other amendment of each Letter of Credit the Borrower
shall be deemed to represent and warant that), after giving effect to such issuance, renewal,
extension or other amendment, (i) the total LC Exposure would not exceed $300,000,000 and (ii)
the total Revolving Credit Exposures would not exceed the total Commitments.
(c) Each Letter of Credit shall expire (or, in the case of an Evergreen Letter of
Credit, shall expire if the applicable Issuing Bank gives the required notice of nonrenewal or
nonextension) not later than the close of business on the date that is five Business Days prior to
the first anniversar of the Expiration Date. Each Issuing Bank agrees to notify the Borrower,
substantially simultaneously with its notice to the beneficiar of an Evergreen Letter of Credit, if
such Issuing Ban decides not to renew or extend such Evergreen Letter of Credit; provided,
however, that such Issuing Ban's failure to so notify the Borrower shall not affect the
nonrenewal or nonextension of such Evergreen Letter of Credit.
18
402692572v2
(d) By the issuance of a Letter of Credit (or an amendment to a Letter of
Credit increasing the amount thereof) and without any further action on the par of the applicable
Issuing Bank or any Lender, such Issuing Ban hereby grants to each Lender, and each Lender
hereby acquires from such Issuing Bank, a paricipation in such Letter of Credit equal to such
Lender's Pro Rata Share of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing Ban,
such Lender's Pro Rata Share of (i) each LC Disbursement made by such Issuing Ban and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section and (ii)
any reimbursement payment required to be refunded to the Borrower for any reason, to the extent
received by such Lender. Each Lender acknowledges and agrees that its obligation to acquire
paricipations in respect of Letters of Credit pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any renewal,
extension or other amendment of any Letter of Credit or the occurrence and continuance of a
Default or Event of Default or a reduction or termination of the Commitments, and that each
such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(e) If the Issuing Ban of a Letter of Credit shal make an LC Disbursement in
respect of such Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying
to the Administrative Agent an amount equal to such LC Disbursement not later than 12:00
noon, Pacific time, on (i) the Business Day on which the Borrower receives notice of such LC
Disbursement, if such notice is received prior to 10:00 a.m., Pacific time, on the day of receipt,
or (ii) the Business Day immediately following the day on which the Borrower receives such
notice, if such notice is not received prior to such time on the day of receipt; provided, however,
that, if such LC Disbursement is in the amount of $1,000,000 or more, the Borrower may,
subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03
that such payment be financed with an ABR Borrowing in an equivalent amount and, to the
extent so financed, the Borrower's obligation to make such payment shal be discharged and
replaced by the resulting ABR Borrowing. If the Borrower fails to make such payment when
due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the
payment then due from the Borrower in respect thereof and such Lender's Pro Rata Share
thereof. Promptly following receipt of such notice, each Lender shall pay to the Administrative
Agent its Pro Rata Share of the payment then due from the Borrower, in the same manner as
provided in Section 2.02 with respect to Loans made by such Lender (and Section 2.02 shall
apply, mutatis mutandis, to the payment obligations of the Lenders), and the Admnistrative
Agent shal promptly pay to such Issuing Bank the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such payment to the relevant
Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to
reimburse such Issuing Bank, to such Lenders and such Issuing Ban as their interests may
appear. Any payment made by a Lender pursuant to this paragraph to reimburse the Issuing
Bank of a Letter of Credit for any LC Disbursement (other than the funding of ABR Loans as
contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its
obligation to reimburse such LC Disbursement.
(f) The Borrower's obligation to reimburse LC Disbursements as provided in
paragraph (e) of this Section shall be absolute, unconditional and irrevocable and shall be
19
40692572v2
performed strctly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (ì) any lack of valdity or enforceabilty of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect, or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Ban under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. Neither the Administrative Agent nor any Lender or Issuing
Ban, nor any of their respective directors, officers, employees or agents, shall have any liabilty
or responsibilty by reason of or in connection with the issuance or transfer of any Letter of
Credit, any payment or failure to make payment thereunder (irrespective of any of the
circumstances referred to in the precedìng sentence), any error, omission, interrption, loss or
delay in transmission or delivery of any draft, notice or other communication under or relating to
any Letter of Credit (including any document required to make a drawing thereunder), any error
in interpretation of any technical term or any consequence arsing from any cause beyond the
control of the applicable Issuing Ban; provided, however, that the foregoing shall not excuse the
Issuing Ban of a Letter of Credit from liabilty to the Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are hereby waived by
the Borrower to the extent permtted by applicable law) suffered by the Borrower that are caused
by such Issuing Bank's gross negligence or wilful misconduct. The paries hereto agree that, in
the absence of gross negligence or wilful misconduct on the par of the Issuing Ban of a Letter
of Credit (as finaly determined by a court of competent jurisdiction), such Issuing Ban shall be
deemed to have exercised reasonable care in each action taken or not taken thereby in respect of
such Letter of Credit. In furtherance of the foregoing and without limiting the generality thereof,
the paries agree that, with respect to each document presented that appears on its face to be in
substantial compliance with the terms of a Letter of Credit, the applicable Issuing Ban may, in
its sole discretion, either accept and make payment upon such document without responsibilty
for further investigation, regardless of any notice or information to the contrar, or refuse to
accept and make payment upon such document if such document is not in strict compliance with
the terms of such Letter of Credit.
(g) The Issuing Ban of a Letter of Credit shal, promptly following its receipt
of documents purporting to represent a demand for payment under such Letter of Credit,
examne all such documents. Such Issuing Ban shall promptly notify the Administrative Agent
and the Borrower by telephone (confirmed by telecopier) of such demand for payment and
whether such Issuing Bank has made or wil make an LC Disbursement in respect thereof;
provided, however, that any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse such Issuing Bank and the Lenders with respect to any
such LC Disbursement.
(h) If the Issuing Bank of a Letter of Credit shall make an LC Disbursement
under such Letter of Credit, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date on which such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date on which such LC Disbursement is made to but
excluding the date on which the Borrower reimburses such LC Disbursement, at the rate per
20
40692572v2
annum then applicable to ABR Loans; provided, however, that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then
Section 2.08 shall apply. Interest accrued pursuant to this paragraph shall be for the account of
such Issuing Ban, except that interest accrued on or after the date of payment by any Lender
pursuant to paragraph (e) of this Section to reimburse such Issuing Bank shall be for the account
of such Lender to the extent of such payment.
(i) If any Event of Default shall occur and be continuing, then, on the
Business Day on which the Borrower receives notice from the Admnistrative Agent, at the
request of any Issuing Ban of an outstading Letter of Credit or the Required Lenders,
demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit
into an account with the Administrative Agent, in the name of the Admnistrative Agent and for
the benefit of the Issuing Bans and the Lenders, an amount in cash equal to the total LC
Exposure as of such date plus any accrued and unpaid interest thereon; provided, however, that
the obligation to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Borrower described in clause (g)
or (h) of Aricle VII. Such deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the obligations of the Borrower under the Loan Documents,
pursuant to documentation executed by the Borrower in form and substance reasonably
satisfactory to the Administrative Agent. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account. Such
deposits may, at the option and sole discretion of the Administrative Agent, be invested in one or
more money-market accounts, but such deposits shall not otherwise be invested or bear interest.
Interest or other profits, if any, on such investments shal accumulate in such account. Moneys
in such account shall be applied by the Administrative Agent to reimburse the Issuing Bans for
LC Disbursements for which they have not been reimbursed and, to the extent not so applied,
shall be held for the satisfaction of the reimbursement obligations of the Borrower for the tota
LC Exposure at such time or be applied to satisfy other obligations of the Borrower under the
Loan Documents. If the Borrower is required to provide cash collateral hereunder as a result of
the occurrence of an Event of Default, the full amount of such cash collateral (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business Days after all
Events of Default have been cured or waived. The Borrower hereby grants to the Admnistrative
Agent a security interest in all such accounts in the name of the Administrative Agent and the
cash collateral and investments held therein or pursuant thereto from time to time, including any
interest or other profits on any such investments, to secure the obligations of the Borrower to the
Admnistrative Agent, the Issuing Bans and the Lenders under this Agreement and the other
Loan Documents.
G) In the event that any Letter of Credit remains outstanding on the
Expiration Date and has an expiration date thereafter, the Borrower shall either (i) deposit into an
account with the Administrative Agent an amount in cash equal to the total LC Exposure as of
such date with respect to such Letter of Credit, to be held and applied as provided in Section
2.05(i), or (ii) enter into an agreement with the Issuing Ban of such Letter of Credit (which such
Issuing Ban may do or not do in its sole and absolute discretion), effective as of the Expiration
Date, whereby such Letter of Credit shall thereafter be governed by such agreement and shall
cease to be governed by this Agreement, whereupon all paricipations of the Lenders in such
21
402692572v2
Letter of Credit shall automatically termnate; provided, however, that such agreement, cessation
and termination shall not affect the obligation of the Borrower with respect to amounts accrued
or owing at such time under the Loan Documents with respect to such Letter of Credit. The
provisions of this paragraph shall apply to each Letter of Credit outstanding on the Expiration
Date and having an expiration date thereafter.
(k) Any Issuing Bank may be replaced at any time, or a Lender or other
financial institution may be added as an Issuing Bank, by written agreement between the
Borrower and the Administrative Agent; provided, however, that (i) each Issuing Ban shal be
either a Lender or another financial institution satisfactory to the Administrative Agent, and (ii)
without limiting the effect of the foregoing clause (i), the Admnistrative Agent shall review any
such proposed agreement for form only and not with respect to the identity of any successor or
additional Issuing Ban or, if applicable, the identity of the Issuing Bank to be replaced. The
Admnistrative Agent shall notify the Lenders of any such replacement or addition of an Issuing
Ban. At the time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Ban pursuant to Section 2.06(b )(ii)
and shall return to such Issuing Ban each Letter of Credit issued by such Issuing Bank. From
and after the effective date of any such replacement or addition of an Issuing Ban, (A) the
successor or additional Issuing Bank shall have all of the rights and obligations of an Issuing
Bank under this Agreement with respect to Letters of Credit to be issued by it on such effective
date or thereafter, and (B) references herein to "Issuing Ban" shall be deemed to refer to such
successor or additional Issuing Bank and/or to any previous Issuing Bank, as the context shall
require. After the replacement of an Issuing Ban hereunder, the replaced Issuing Ban shall
continue to have all of the rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit issued by it before such replacement, but such replaced Issuing Ban
shall not be required to issue additional Letters of Credit.
(1) Each "Letter of Credit" outstanding under the 2004 Credit Agreement on
the Closing Date shall automatically, without further action on the par of the Borrower, the
applicable Issuing Bank or any other person, be deemed to have been issued under this Section
2.05 and shall be a Letter of Credit under this Agreement for all purposes.
Section 2.06 Fees.
(a) The Borrower agrees to pay to each Lender, through the Administrative
Agent, on the first Business Day of Januar, April, July and October of each year and on the date
on which the Commtment of such Lender shall be reduced or terminated as provided herein, a
facilty fee at the Applicable Rate (a "Facilit Fee") on the daily amount of the Commitment of
such Lender during the preceding quarer (or shorter period commencing with the date hereof or
ending with the Expiration Date or the date on which the Commitment of such Lender shall be
reduced or termnated); provided, however, that no Lender shall be entitled to receive any
Facility Fee with respect to the unused portion of its Commitment (Le., its Commitment minus
its Revolving Credit Exposure) for any period during which that Lender is a Defaulting Lender
(and the Borrower shall not be required to pay any Facility Fee that it otherwise would have been
required to pay to that Lender with respect to the unused portion of its Commtment). The
Facilty Fees shall accrue on each day at a rate per anum equal to the Applicable Rate in effect
on such day. All Facilty Fees shall be computed on the basis of a year of 365 or 366 days, as the
22
402692572v2
case may be, and shall be payable for the actual number of days elapsed (including the first day
but excluding the last day). The Facilty Fee due to each Lender shall commence to accrue on
the date of this Agreement and shall cease to accrue on the date on which the Commtment of
such Lender shall be terminated as provided herein.
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Lender, a paricipation fee with respect to its paricipations in Letters of Credit,
which fee shall accrue at the Applicable Rate (an "LC Partcipatin Fee") on the average daily
amount of such Lender's LC Exposure (excluding any portion thereof attrbutable to
unreimbursed LC Disbursements) during the period from and including the date of this
Agreement to but excluding the later of the date on which such Lender's Commitment terminates
and the date on which such Lender ceases to have any LC Exposure, and (ii) to each Issuing
Ban, a fronting fee for Letters of Credit issued by such Issuing Ban, which fee shall accrue at
the rate of 0.20% per annum on the average daily amount of such Issuing Ban's Issuing Bank
Exposure (excluding any porton thereof attrbutable to unreimbursed LC Disbursements of such
Issuing Bank) during the period from and including the date of this Agreement to but excluding
the later of the date of termnation of the Commtments and the date on which there ceases to be
any Issuing Ban Exposure (with the calculation and payment of such fee to be determned by
such Issuing Ban and the Borrower). LC Paricipation Fees and Letter of Credit fronting fees
shall be payable quarerly in arrears on the first Business Day of Januar, April, July and October
of each year and on the date on which the Commtments terminate as provided herein; provided,
however, that all such fees accruing after the date on which the Commitments terminate shall be
payable on demand. All LC Paricipation Fees and Letter of Credit fronting fees shal be
computed on the basis of a year of 365 or 366 days, as the case may be, and shall be payable for
the actual number of days elapsed (including the first day but excluding the last day) during the
period in question.
(c) The Borrower agrees to pay to the Administrative Agent, for its own
account, the fees separately agreed between the Administrative Agent and the Borrower.
(d) Once paid, none of the Fees shall be refundable under any circumstaces.
Section 2.07 Interest on Loans.
(a) Subject to the provisions of Section 2.08, the Loans comprising each ABR
Borrowing shal bear interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Rate.
(b) Subject to the provisions of Section 2.08, the Loans comprising each
Eurodollar Borrowing shall bear interest at a rate per annum equal to the Eurodollar Rate for the
Interest Period in effect for such Borrowing plus the Applicable Rate.
(c) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan except as otherwise provided in this Agreement.
(d) Interest computed on the basis of the Alternate Base Rate (including
interest payable on overdue amounts under Section 2.08) shall be computed on the basis of a
year of 365 or 366 days, as the case may be, for the actual number of days elapsed so long as the
23
402692572v2
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 Alternate Base Rate. Interest
computed on the basis of the Eurodollar Rate (including interest payable on overdue amounts
under Section 2.08) shall be computed on the basis of a year of 360 days for the actual number of
days elapsed.
(e) The applicable Alternate Base Rate or Eurodollar Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be determned by the
Administrative Agent, and such determnation shall be conclusive absent manifest error.
Section 2.08 Default Interest. If the Borrower shall default in the payment of the
principal of or interest on any Loan or any other amount becoming due under the Loan
Documents, by acceleration or otherwise, the Borrower shall on demand from time to time pay
interest, to the extent permtted by law, on such defaulted amount up to (but not including) the
date of actual payment (after as well as before judgment) at a rate per annum equal to the
Alternate Base Rate plus the Applicable Rate plus 2% (except that the interest rate applicable to
an overdue amount of principal of a Eurodollar Borrowing that became due on a day other than
on the last day of the Interest Period applicable thereto shall, for the period until the last day of
such Interest Period, be equal to 2% above the rate that would otherwise be applicable thereto
during such Interest Period).
Section 2.09 Alternate Rate of Interest. In the event, and on each occasion, that on the
day two Business Days prior to the commencement of any Interest Period for a Eurodollar
Borrowing the Administrative Agent shall have in good faith determned that dollar deposits in
the principal amounts of the Loans comprising such Borrowing are not generaly available in the
London interban market, or that the rates at which such dollar deposits are being offered wil
not adequately and faily reflect the cost to the majority in interest of the Lenders of makng or
maintaning their Eurodollar Loans during such Interest Period, or that reasonable means do not
exist for ascertaining the Eurodollar Rate, the Administrative Agent shall, as soon as practicable
thereafter, give notice of such determnation to the Borrower and the Lenders. In the event of
any such determnation, any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 shall, until the Administrative Agent shall have advised the Borrower and the
Lenders that the circumstances giving rise to such notice no longer exist, be deemed to be a
request for an ABR Borrowing. Each determnation by the Administrative Agent hereunder shall
be conclusive absent manifest error.
Section 2.10 Termnation. Reduction and Increase in Commitments.
(a) The Commtments shall automatically terminate on the Expiration Date.
(b) Upon at least three Business Days' prior irevocable notice to the
Administrative Agent, the Borrower may at any time in whole permanently termnate, or from
time to time in par permanently reduce, the unused portion of the Commtments; provided,
however, that (i) each paral reduction of the Commtments shall be in the aggregate amount of
$5,00,000 or a higher whole-integer multiple thereof, and (ii) the Borrower shall not termnate
or reduce the Commitments if, afer giving effect to any concurrent prepayment of the Loans in
24
402692572v2
accordance with Section 2.11, the sum of the Revolving Credit Exposures would exceed the tota
Commtments.
(c) At any time following the date of this Agreement and prior to the
Expiration Date, the total Commtments may, at the option of the Borrower, be increased by an
aggregate amount not in excess of $100,000,000, either by newly establishing or increasing
Commtments of one or more persons that become Additional Commtment Lenders pursuant to
ths Section 2.10(c); provided that (i) each such Additional Commitment Lender shall be selected
or approved by the Borrower and shall be reasonably acceptable to the Administrative Agent and
the Issuing Bans, (ii) no Lender shall have an obligation to become such an Additional
Commtment Lender, (iii) no Default or Event of Default shall exist immediately prior to or after
the effective date of each such increase in the total Commtments, (iv) the representations and
waranties set forth in Aricle il shall be tre and correct in all material respects on and as of the
effective date of each such increase in the total 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 such newly established Commtment shall be in an amount equal to or
greater than $5,00,000, (vi) each increase in the total Commtments pursuant to this Section
2.1O(c) shall be in the aggregate amount of $10,00,000 or a whole-integer multiple of
$5,00,00 in excess thereof, (vii) the aggregate amount of increases in the total Commitments
pursuant to this Section 2.1O(c) shall not exceed $100,00,000, and (viii) no such newly
established Commtment or increase in a Commitment shall become effective unless and until
(A) the Borrower, the Administrative Agent, the Issuing Bans and the relevant Additional
Commitment Lender shall have executed and delivered an agreement substantialy in the form of
Exhibit D (a "Commitment Increase Supplement'') with respect thereto, (B) such Additional
Commitment Lender, if not aleady a Lender, shal have delivered an Administrative
Questionnaire to the Administrative Agent, and (C) if the obligations of the Borrower under this
Agreement are then secured by the First Mortgage, the Administrative Agent shall have received
a substitute First Mortgage Bond in an amount equal to the total Commtments after giving effect
to the increase in the total Commtments, together with a supplemental indenture, a bond
delivery agreement, mortgage title insurance, legal opinions and other certificates and documents
with respet thereto comparable to those delivered pursuant to Section 4.02(a) with respect to the
First Mortgage Bond issued under the First Mortgage and delivered to the Administrative Agent
on the Closing Date, in each case in form and substance satisfactory to the Administrative Agent.
Upon compliance with the provisions of this Section 2.1O(c), each Additional Commtment
Lender hereunder shall have the Commtment specified in its Commtment Increase Supplement
and, if not aleady a Lender, shall constitute a "Lender" hereunder.
(d) On the effective date of each increase in the total Commitments pursuant
to Section 2.1 O( c), each relevant Additional Commtment Lender shall purchase, as an
assignment from each other Lender, the portion of such other Lender's Loans, unreimbursed LC
Disbursements and paricipations in Letters of Credit outstanding at such time such that, after
giving effect to such assignments, the respective aggregate amount of Loans, unreimbursed LC
Disbursements and parcipations in Letters of Credit of each Lender shal be equal to such
Lender's Pro Rata Share of the aggregate Loans, unreimbursed LC Disbursements and
paricipations in Letters of Credit outstanding. The purchase price for the Loans, unreimbursed
LC Disbursements and paricipations in Letters of Credit so assigned shall be the sum of (i) the
principal amount of the Loans and unreimbursed LC Disbursements so assigned plus the amount
25
40692572v2
of accrued and unpaid interest thereon as of the date of assignent and (ii) the amount of
accrued and unpaid LC Parcipation Fees as of the date of assignment on the paricipations in
Letters of Credit so assigned. Each such Additional Commtment Lender shall pay the aggregate
purchase price payable by it to the Admnistrative Agent on the effective date of the
corresponding increase in the total Commtments, and the Administrative Agent shall promptly
forward to each other Lender the portion thereof payable to it. Upon payment of such purchase
price, each other Lender shall be automaticaly deemed to have sold and made such an
assignment to each such Additional Commtment Lender and shall, to the extent of the interest
assigned, be released from its obligations under the Loan Documents, and each such Additional
Commtment Lender shall be automatically deemed to have purchased and assumed such an
assignment from each other Lender and, if not aleady a Lender hereunder, shall be a pary
hereto and, to the extent of the interest assigned, have the rights and obligations of a Lender
under the Loan Documents.
Section 2.11 Prepayment. The Borrower shall have the right at any time and from time
to time to prepay any Borrowing, in whole or in par, upon at least three Business Days' prior
notice to the Administrative Agent, in the case of a prepayment of a Eurodollar Borrowing, and
upon at least one Business Day's prior notice, in the case of a prepayment of an ABR Borrowing;
provided, however, that each parial prepayment shall be in the amount of $1,00,000 or a higher
whole-integer multiple thereof. Each notice of prepayment shall specify the prepayment date
and the principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commt the Borrower to prepay such Borrowing by the amount stated
therein on the date stated therein. All prepayments under this Section 2.11 shall be subject to
Section 2.14 but otherwise without premium or penalty. All prepayments under this Section 2.11
shall be accompanied by accrued interest on the principal amount being prepaid to (but
excluding) the date of payment.
Section 2.12 Reserve Requirements; Change in Circumstances.
(a) Notwithstading any other provision herein, if after the date of this
Agreement there is adopted any new law, rule or regulation or any change in applicable law or
regulation or in the interpretation, promulgation, implementation or administration thereof by
any Governmental Authority charged with the interpretation or administration thereof (whether
or not having the force of law) which shall impose, modify or deem applicable any reserve,
special-deposit or similar requirement against assets of, deposits with or for the account of or
credit extended by any Lender or Issuing Ban (except any such reserve requirement which is
reflected in the Eurodollar Rate) or shall impose on any Lender or Issuing Ban or on the
London interbank market any other condition affecting this Agreement, any Eurodollar Loan or
any Letter of Credit or paricipation therein, and the result of any of the foregoing shall be to
increase the cost to such Lender of makng or maintaining any Eurodollar Loan, to increase the
cost to such Lender or Issuing Bank of paricipating in, issuing or maintaining any Letter of
Credit or to reduce the amount of any sum received or receivable by such Lender or Issuing
Bank hereunder or under any Notes (whether of principal, interest or otherwise) by an amount
deemed by such Lender or Issuing Bank to be material, then the Borrower wil pay to such
Lender or Issuing Ban upon demand such additional amount or amounts as wil compensate
such Lender or Issuing Bank for such additional costs incurred or reduction suffered.
26
402692572v2
(b) If any Lender or Issuing Bank shall have determined that the applicabilty
of any law, rule, regulation, agreement or guideline adopted afer the date hereof regarding
capital adequacy, or any change in any of the foregoing or the adoption after the date hereof of
any change in any law, rule, regulation, agreement or guideline existing on the date hereof or in
the interpretation or administration of any of the foregoing by any Governmental Authority
charged with the interpretation or administration thereof, or compliance by any Lender or Issuing
Ban (or any lending office thereof) or any Lender's or Issuing Ban's holding company with
any request or directive 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 return on such Lender's or Issuing Bank's capital or on the capital of such Lender's or
Issuing Ban's holding company, if any, with respect to this Agreement, any Loan or any Letter
of Credit or paricipation therein to a level below that which such Lender or Issuing Ban or such
Lender's or Issuing Bank's holding company could have achieved but for such applicabilty,
adoption, change or compliance (takng into consideration such Lender's or Issuing Bank's
policies and the policies of such Lender's or Issuing Ban's holding company with respect to
capital adequacy) by an amount deemed by such Lender or Issuing Ban to be material, then
from time to time the Borrower shal pay to such Lender or Issuing Bank, as the case may be,
such additional amount or amounts as wil compensate such Lender or Issuing Ban or such
Lender's or Issuing Ban's holding company for any such reduction suffered. It is
acknowledged that this Agreement is being entered into by the Lenders and the Issuing Banks on
the understanding that the Lenders and the Issuing Bans wil not be required to maintain capital
against their obligations to make Loans or issue Letters of Credit or purchase paricipations
therein under currently applicable laws, regulations and regulatory guidelines. In the event that
any Lender or Issuing Bank shall be advised by any Governmental Authority, or shall otherwise
determne on the basis of pronouncements of any Governmenta Authority, that such
understanding is incorrect, it is agreed that each such Lender or Issuing Ban wil be entitled to
make claims under this paragraph based upon market requirements prevailing on the date hereof
for commtments under comparable credit facilties against which capital is required to be
maintained.
(c) A certificate of a Lender or Issuing Ban setting forth in reasonable detail
such amount or amounts as shall be necessar to compensate such Lender or Issuing Ban or
such Lender's or Issuing Ban's holding company as specified in paragraph (a) or (b) above, as
the case may be, and the manner in which such Lender or Issuing Ban has determned the same,
shall be delivered to the Borrower and shal be conclusive absent manifest error. The Borrower
shall pay such Lender or Issuing Bank, as the case may be, the amount shown as due on any such
certificate delivered by it within 10 days after its receipt of the same.
(d) Failure on the par of any Lender or Issuing Ban to demand
compensation for any increased costs or reduction in amounts received or receivable or reduction
in return on capital with respect to any period shall not constitute a waiver of such Lender's or
Issuing 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 Lender and Issuing Ban regardless of
any possible contention of the invalidity or inapplicabilty of the law, rule, regulation, guideline
or other change or condition which shall have occurred or been imposed.
27
402692572v2
(e) For purposes of this Agreement, notwithstanding anyting in ths
Agreement to the contrar, the Dodd-Frank Wall Street Reform and Consumer Protection Act
and all rules, regulations, interpretations, agreements, guidelines, directives and requests in
connection therewith are deemed to have been adopted, and to have gone into effect, after the
date of this Agreement, regardless of the date on which the same were actually adopted or went
into effect.
Section 2.13 Change in Legality.
(a) Notwithstanding any other provision herein, if any change in, or adoption
of, any law or regulation or in the interpretation thereof by any Governmenta Authority charged
with the administration or interpretation thereof shall make it unlawful for any Lender to make or
maintain any Eurodollar Loan or to give effect to its obligations as contemplated hereby with
respect to any Eurodollar Loan, then, by notice to the Borrower and to the Administrative Agent,
such Lender may:
(i) declare that Eurodollar Loans wil not thereafter be made by such
Lender hereunder, whereupon any request by the Borrower for a Eurodollar Borrowing shall, as
to such Lender only, be deemed a request for an ABR Loan unless such declaration shall be
subsequently withdrawn; and
(ii) require that al outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically
converted to ABR Loans as of the effective date of such notice as provided in paragraph (b)
below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all payments and
prepayments of principal which would otherwise have been applied to repay the Eurodollar
Loans that would have been made by such Lender or the converted Eurodollar Loans of such
Lender shall instead be applied to repay the ABR Loans made by such Lender in lieu of, or
resulting from the conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.13, a notice to the Borrower by any Lender
shall be effective as to each Eurodollar Loan, if lawful, on the last day of the Interest Period
currently applicable to such Eurodollar Loan.
Section 2.14 Indemnity. The Borrower shall indemnify each Lender against any loss or
expense which such Lender may sustain or incur as a consequence of (a) any failure by the
Borrower to fulfill on the date of any Eurodollar Borrowing hereunder the applicable conditions
set forth in Article IV, (b) any failure by the Borrower to borrow any Eurodollar Loan hereunder
after irrevocable notice of such borrowing has been given or deemed given pursuant to Section
2.03, (c) any payment or prepayment of a Eurodollar Loan required by any provision of 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 pursuant to Section 2.19(b)
made or deemed made on a date other than the last day of the Interest Period applicable thereto,
or (e) any default in payment or prepayment of the principal amount of any Eurodollar Loan or
any par thereof or interest accrued thereon, as and when due and payable (at the due date
28
402692572v2
thereof, whether by scheduled maturity, acceleration, irrevocable notice of prepayment or
otherwise) including, in each such case, any loss or reasonable expense sustained or incurred or
to be sustained or incurred in liquidating or employing deposits from third paries acquired to
effect or maintain such Loan or any par thereof as a Eurodollar Loan. Such loss or reasonable
expense shal include an amount equal to the excess, if any, as reasonably determned by such
Lender, of (i) its cost of obtaining the funds for the Eurodollar Loan being paid, prepaid,
assigned or not borrowed (assumed to be the Eurodollar Rate applicable thereto) for the period
from the date of such payment, prepayment, assignment or failure to borrow to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow, the Interest Period for such
Eurodollar Loan which would have commenced on the date of such failure) over (ii) the amount
of interest (as reasonably determned by such Lender) that would be realized by such Lender in
reemploying the funds so paid, prepaid, assigned or not borrowed for such period or Interest
Period, as the case may be. A certificate of any Lender setting forth any amount or amounts
which such Lender is entitled to receive pursuant to this Section, and the manner in which such
Lender has determned the same, shall be delivered to the Borrower and shall be conclusive
absent manfest error.
Section 2.15 Pro Rata Treatment. Except as required under Sections 2.12, 2.14 and
2.18, each Borrowing, each payment or prepayment of principal of any Borrowing or LC
Disbursement, each payment of interest on the Loans or LC Disbursements, each payment of the
Fees, and each reduction of the Commtments shall be allocated among the Lenders in
accordance with their respective Pro Rata Shares. Each Lender agrees that, in computing such
Lender's portion of any Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round each Lender's Pro Rata Share of such Borrowing to the next higher or lower
whole-dollar amount.
Section 2.16 Sharng of Setoffs. Each Lender agrees that if it shall, through the
exercise of a right of banker's lien, setoff or counterclaim against the Borrower, or pursuant to a
secured claim under Section 506 of Title 11 of the United States Code or other security or
interest arsing from, or in lieu of, such secured claim, received by such Lender under any
applicable banptcy, insolvency or other similar law or otherwise, or by any other means,
obtain payment (voluntar or involunta) in respect of its Loans or paricipations in LC
Disbursements as a result of which the unpaid principal porton of its Loans or paricipations in
LC Disbursements shall be proportionately less than the unpaid principal portion of the Loans or
paricipations in LC Disbursements of any other Lender, it shall be deemed simultaneously to
have purchased from such other Lender at face value, and shall promptly pay to such other
Lender the purchase price for, a paricipation in the Loans or parcipations in LC Disbursements
of such other Lender ("Sharing Partiipatons'ry, so that (a) the aggregate unpaid principal
amount of the Loans, paricipations in LC Disbursements and Sharng Paricipations held by
each Lender shall be in the same proportion to the aggregate unpaid principal amount of al
Loans and LC Disbursements then outstanding as (b) the principal amount of its Loans,
paricipations in LC Disbursements and Sharng Paricipations prior to such exercise of baner's
lien, setoff or counterclaim or other event was to the principal amount of al Loans and LC
Disbursements outstanding prior to such exercise of baner's lien, setoff or counterclaim or other
event; provided, however, that, if any such purchase or purchases or adjustments shal be made
pursuant to this Section and the payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the extent of such recovery and the
29
402692572v2
purchase price or prices or adjustment restored without interest. The Borrower expressly
consents to the foregoing arangements and agrees that any Lender holding a paricipation in a
Loan or in a paricipation in an LC Disbursement deemed to have been so purchased may
exercise any and al rights of baner's lien, setoff or counterclaim with respect to any and al
moneys owing by the Borrower to such Lender by reason thereof as fully as if such Lender had
made a Loan directly to the Borrower or had acquired a parcipation in an LC Disbursement
directly from the applicable Issuing Ban, as the case may be, in the amount of such
paricipation.
Section 2.17 Payments.
(a) The Borrower shall make each payment (including for principal of or
interest on any Borrowing, reimbursements of LC Disbursements, Fees and other amounts)
hereunder and under any other Loan Document not later than 9:00 a.m., Pacific time, on the date
when due in dollars to the Administrative Agent at its offces at 445 South Figueroa Street, Los
Angeles, California 90071, in immediately available funds.
(b) Whenever any payment (including for principal of or interest on any
Borrowing, reimbursements of LC Disbursements, Fees and other amounts) hereunder or under
any other Loan Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of interest or Fees, if
applicable.
Section 2.18 Taxes.
(a) Any and all payments by the Borrower hereunder and under any other
Loan Document shall be made, in accordance with Section 2.17, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilties with respect thereto, excluding taxes imposed on the net income
of the Administrative Agent, any Lender or any Issuing Ban (or any transferee or assignee
thereof, including a paricipation holder (any such entity being called a "Transferee")) and
franchise taxes imposed on the Administrative Agent, any Lender or any Issuing Bank (or any
Transferee) by the United States or any jurisdiction under the laws of which the Administrative
Agent or any such Lender or Issuing Ban (or Transferee) or the applicable lending office, is
organized or any political subdivision thereof (all such nonexcluded taes, levies, imposts,
deductions, charges, withholdings and liabilties being hereinafter referred to as "Taxes''). If the
Borrower shal be required by law to deduct any Taxes from or in respect of any sum payable
under any Loan Document to any Lender or Issuing Ban (or Transferee) or the Administrative
Agent, (i) the sum payable shall be increased by the amount necessar so that after makng all
required deductions of Taxes (including deductions applicable to additional sums payable under
this Section 2.18) such Lender or Issuing Ban (or Transferee) or the Administrative Agent (as
the case may be) shall receive an amount equal to the sum it would have received had no such
deductions of Taxes been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxing authority or other
Governmental Authority in accordance with applicable law; provided, however, that no
Transferee of any Lender shall be entitled to receive any greater payment under this paragraph
30
402692572v2
(a) than such Lender would have been entitled to receive with respect to the rights assigned,
parcipated or other wise transferred except to the extent that such greater payment arses from
circumstances not in existence at the time such assignment, paricipation or transfer shall have
been made.
(b) In addition, the Borrower agrees to pay any present or future stamp or
documentar taxes or any other excise or property taxes, 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, this Agreement or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) The Borrower wil indemnify each Lender (or Transferee), each Issuing
Ban (or Transferee) and the Administrative Agent for the full amount of any Taxes and Other
Taxes paid by such Lender or Issuing Ban (or Transferee) or the Administrative Agent, as the
case may be, and any liabilty (including penalties, interest and reasonable expenses) arsing
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted by the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days afer the date any Lender or Issuing Ban (or
Transferee) or the Administrative Agent, as the case may be, makes written demand therefor. If
a Lender or Issuing Ban (or Transferee) or the Administrative Agent shall become aware that it
is entitled to receive a refund in respect of Taxes or Other Taxes as to which it has been
indemnified by the Borrower pursuant to this Section 2.18, it shall promptly notify the Borrower
of the availabilty of such refund and shall, within 30 days after receipt of a request by the
Borrower, apply for such refund at the Borrower's expense.
(d) If any Lender or Issuing Bank (or Transferee) or the Administrative Agent
receives a refund in respect of any Taxes or Other Taxes as to which it has been indemnified by
the Borrower pursuant to this Section 2.18, it shall promptly notify the Borrower of such refund
and shall repay such refund to the Borrower (to the extent of amounts that have been paid by the
Borrower under this Section 2.18 with respect to such refund) within 30 days (or promptly upon
receipt, if the Borrower has requested application for such refund pursuant hereto), net of all
reasonable out-of-pocket expenses of such Lender or Issuing Ban (or Transferee) and without
interest (other than interest included in such refund); provided that the Borrower, upon the
request of such Lender or Issuing Ban (or Transferee) or the Administrative Agent, agrees to
return such refund (plus penalties, interest or other charges) to such Lender or Issuing Ban (or
Transferee) or the Administrative Agent in the event such Lender or Issuing Ban (or
Transferee) or the Administrative Agent is required to repay such refund. Nothing contained in
this paragraph (d) shall require any Lender or Issuing Ban (or Transferee) or the Administrative
Agent to make available any of its tax returns (or any other information relating to its taxes
which it deems to be confidential); provided that Borrower, at its expense, shall have the right to
receive an opinion from a firm of independent public accountants of recognized national
standing acceptable to the Borrower that the amount due hereunder is correctly calculated.
(e) Within 30 days after the date of any payment of Taxes or Other Taxes
withheld by the Borrower in respect of any payment to any Lender or Issuing Ban (or
Transferee) or the Admnistrative Agent, the Borrower wil furnish to the Administrative Agent,
31
402692572v2
at its address referred to in Section 10.01, the original or a certified copy of a receipt received by
the Borrower evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement contained herein,
the agreements and obligations contained in this Section 2.18 shal survive the payment in full of
the principal of and interest on all Loans made hereunder.
(g) On or prior to the execution of this Agreement and on or before the
transfer to a Transferee, the Administrative Agent shall notify the Borrower of each Lender's or
Issuing Ban's (or Transferee's) address. On or prior to each Lender's or Issuing Ban's (or
Transferee's) first Interest Payment Date, and from time to time as required by law, each Lender
or Issuing Ban (or Transferee) that is not a United States person within the meaning of Section
7701(a)(30) of the Code (a "Non-U.S. Person'') shal, if legally able to do so, deliver to the
Borrower and the Administrative Agent (i) one duly completed and executed copy of United
States Internal Revenue Service Form W -8BEN or W -8ECI, (ii) if claiming exemption from
United States Federal withholding tax pursuant to Section 871(h) or 881(c) of the Code, one duly
completed and executed copy of a United States Internal Revenue Service Form W -8BEN and a
certificate representing that such Non-U.S. Person is not a bank for purposes of Section 881(c) of
the Code, is not a 10 percent shareholder (within the meaning of Section 871(h)(3)(b) of the
Code) of the Borrower and is not a controlled foreign corporation related to the Borrower (within
the meanng of Section 864(d)(4) of the Code) or (ii) any successor applicable form of any
thereof, establishing in each case that such Lender or Issuing Bank (or Transferee) is entitled to
receive payments under the Loan Documents payable to it without deduction or withholding of
any United States Federal income taxes, or is subject to a reduced rate thereof. Unless the
Borrower and the Administrative Agent have received forms or other documents satisfactory to
them indicating that such payments under the Loan Documents are not subject to United States
Federal withholding tax or are subject to such tax at a rate reduced by an applicable tax treaty,
the Borrower shall withhold taxes from such payments at the applicable statutory rate.
(h) The Borrower shall not be required to pay any additional amounts to any
Lender or Issuing Ban (or Transferee) in respect of United States Federal withholding tax
pursuant to paragraph (a) above if the obligation to pay such additional amounts would not have
arsen but for a failure by such Lender or Issuing Ban (or Transferee) to comply with the
provisions of paragraph (g) above; provided, however, that the Borrower shall be required to pay
those amounts to any Lender or Issuing Ban (or Transferee) that it was required to pay
hereunder prior to the failure of such Lender or Issuing Ban (or Transferee) to comply with the
provisions of such paragraph (g).
Section 2.19 Termnation or Assignment of Commitments under Certain
Circumstances.
(a) Any Lender or Issuing Bank (or Transferee) claiming any additional
amounts payable pursuant to Section 2.12 or 2.18 or exercising its rights under Section 2.13 shall
use reasonable efforts (consistent with legal and regulatory restrctions) to file any certificate or
document requested by the Borrower or to change the jurisdiction of its applicable lending offce
if the makng of such a filing or change would avoid the need for or reduce the amount of any
such additional amounts which may thereafer accrue or avoid the circumstances giving rise to
32
402692572v2
such exercise and would not, in the sole determnation of such Lender or Issuing Ban (or
Transferee), be otherwise disadvantageous to such Lender or Issuing Ban (or Transferee).
(b) In the event that any Lender shall have delivered a notice or certficate
pursuant to Section 2.13, or the Borrower shall be required to make additional payments under
Section 2.12 or 2.18 to any Lender or Issuing Ban (or Transferee) or to the Administrative
Agent with respect to any Lender or Issuing Bank (or Transferee), the Borrower shall have the
right, at its own expense, upon notice to such Lender or Issuing Ban (or Transferee) and the
Administrative Agent (and, if a Commtment is being termnated or assigned, the Issuing Bans),
(i) to termate the Commitment of such Lender or Issuing Ban (or Transferee) or (ii) to require
such Lender or Issuing Ban (or Transferee) to transfer and assign without recourse (in
accordance with and subject to the restrctions contained in Section 10.04) all its interests, rights
and obligations under the Loan Documents to another financial institution which shal assume
such obligations; provided that (A) no such termnation or assignment shal conflct with any
law, rule or regulation or order of any Governmenta Authority and (B) the Borrower or the
assignee, as the case may be, shall pay to the affected Lender or Issuing Ban (or Transferee) in
immediately available funds on the date of such termination or assignment the principal of and
interest accrued to the date of payment on the Loans made by it hereunder and all other amounts
accrued for its account and owed to it under the Loan Documents and, in the case of a
termnation or assignment by an Issuing Ban, shall cause all Letters of Credit issued by such
Issuing Ban to be surrendered for cancellation on or prior to the date of such termnation or
assignment.
Section 2.20 Extension of Expiration Date.
(a) If no Event of Default has occurred and is continuing, the Borrower may
request, by simultaneous notice to the Administrative Agent and each Lender given no later than
60 days before the Expiration Date applicable on the date of such notice (the "Current
Expiration Date"), that the Lenders extend their respective Commitments for an additional
period of one year or two years (the "Requested Extension Period"). If a Lender agrees, in its
sole and absolute discretion, to so extend its Commitment, it wil give notice to the
Administrative Agent of its decision to do so within 30 days after the Borrower's delivery of
notice to the Administrative Agent and the Lenders requesting extension of the Current
Expiration Date. Promptly after expiration of such 30-day period, the Administrative Agent wil
notify the Borrower and each Lender as to the Lenders (each an "Extending Lender") from
which it has received such a notice agreeing to so extend. Any failure by a Lender to so notify
the Administrative Agent shall be deemed to be a decision by such Lender not to so extend its
Commtment.
(b) If all Lenders elect to so extend their respective Commitments, and
provided that the additional conditions specified in Section 4.03 shall have been satisfied, then
on the Current Expiration Date the Expiration Date shall automatically be extended by a period
equal to the Requested Extension Period.
(c) If, at the time the Administrative Agent gives the notice contemplated by
Section 2.20(a) to the Borrower and the Lenders, the Commtments of the Extending Lenders
aggregate at least 66-2/3%, but less than 100%, of the Commitments of all of the Lenders at such
33
40692572v2
time (the "Existing Commitents''), then, notwithstanding anything in Section 1O.08(b) to the
contrar, (i) as to each Extending Lender, on the Current Expiration Date the Expiration Date
shall automaticaly be extended by a period equal to the Requested Extension Period, provided
that the additional conditions specified in Section 4.03 shall have been satisfied, (ii) the
Expiration Date shal remain unchanged as to each Lender that is not an Extending Lender (each
a "Terminatng Lender''), (ii) each Termnating Lender's Commitment shall terminate on the
Current Expiration Date, and (iv) on the Currnt Expiration Date the Borrower shall (A) pay the
outstanding Loans owed to each Termnating Lender and all other amounts owed to each
Terminating Lender and (B) deposit into an account with the Administrative Agent an amount in
cash equal to the aggregate LC Exposure of the Termnating Lenders plus any accrued and
unpaid interest thereon, to be held and applied as provided in Section 2.05(i). If, at the time the
Administrative Agent gives the notice contemplated by Section 2.20(a) to the Borrower and the
Lenders, the Commtments of the Extending Lenders aggregate less than 66-2/3% of the Existing
Commtments, then none of the Commitments (including the Commtment of any Extending
Lender) shall be extended, and the Expiration Date shall remain unchanged.
(d) The Borrower may undertake the process contemplated by this Section
2.20 only once for a Requested Extension Period of two years or up to twice for Requested
Extension Periods of one year each.
(e) If, at any time that the Administrative Agent gives a notice contemplated
by Section 2.20(a) to the Borrower and the Lenders, the Commtments of the Extending Lenders
aggregate at least 66-2/3% but less than 100% of the then Existing Commtments, the Borrower
shall have the right to replace the Commtments of the Termnating Lenders by either newly
establishing or increasing Commtments of one or more persons that become Additional
Commitment Lenders pursuant to this Section 2.20(e); provided that (i) each such Additional
Commtment Lender shall be selected or approved by the Borrower and shall be reasonably
acceptable to the Admnistrative Agent and the Issuing Bans, (ii) no Extending Lender shall
have an obligation to become such an Additional Commtment Lender, (iii) the additional
conditions specified in Section 4.03 shall have been satisfied, (iv) each such newly established
Commtment shall be in an amount equal to or greater than $5,000,000, (v) the aggregate of such
newly established Commtments and increases in Commitments shall not exceed the aggregate
Commitments of the Termnating Lenders, and (vi) no such newly established Commtment or
increase in a Commitment shall become effective unless and until (A) the Borrower, the
Administrative Agent, the Issuing Banks and the relevant Additional Commtment Lender shall
have executed and delivered an agreement substantially in the form of Exhibit E (a
"Commitment Extension Supplement") with respect thereto, in each case in form and substance
satisfactory to the Administrative Agent, and (B) such Additional Commtment Lender, if not
aleady a Lender, shall have delivered an Administrative Questionnaire to the Administrative
Agent. Upon compliance with the provisions of this Section 2.20(e), each Additional
Commitment Lender hereunder shall have the Commitment specified in its Commitment
Extension Supplement and, if not already a Lender, shall constitute a "Lender" hereunder.
(f) On the effective date of each replacement of all or a porton of one or
more Commtments of Terminating Lenders pursuant to Section 2.20(e), each relevant
Additional Commtment Lender shal purchase, as an assignent from each other Lender, the
portion of such other Lender's Loans, unreimbursed LC Disbursements and parcipations in
34
402692572v2
Letters of Credit outstanding at such time such that, afer giving effect to such assignments, the
respective aggregate amount of Loans, unreimbursed LC Disbursements and paricipations in
Letters of Credit of each Lender shall be equal to such Lender's Pro Rata Shar of the aggregate
Loans, unreimbursed LC Disbursements and paricipations in Letters of Credit outstanding. The
purchase price for the Loans, unreimbursed LC Disbursements and paricipations in Letters of
Credit so assigned shall be the sum of (i) the principal amount of the Loans and unreimbursed
LC Disbursements so assigned plus the amount of accrued and unpaid interest thereon as of the
date of assignment and (ii) the amount of accrued and unpaid LC Paricipation Fees as of the
date of assignment on the paricipations in Letters of Credit so assigned. Each such Additional
Commtment Lender shall pay the aggregate purchase price payable by it to the Admnistrative
Agent on the effective date of the corresponding replacement of all or a portion of one or more
Commtments of Terminating Lenders, and the Admnistrative Agent shall promptly forward to
each other Lender the portion thereof payable to it. Upon payment of such purchase price, each
other Lender shall be automatically deemed to have sold and made such an assignment to each
such Additional Commtment Lender and shall, to the extent of the interest assigned, be released
from its obligations under the Loan Documents, and each such Additional Commitment Lender
shal be automatically deemed to have purchased and assumed such an assignment from each
other Lender and, if not aleady a Lender hereunder, shal be a pary hereto and, to the extent of
the interest assigned, have the rights and obligations of a Lender under the Loan Documents.
Section 2.21 Defaulting Lenders.
(a) If any Letters of Credit are outstading at the time a Lender becomes a
Defaulting Lender, and the Commtments have not been termnated in accordance with Article
VII, then:
(i) so long as no Default or Event of Default has occurred and is
continuing, all or any par of the LC Exposure of such Defaulting Lender shall be realocated
among the Lenders that are not Defaulting Lenders ("non-Defaulting Lenders'') in accordance
with their respective Pro Rata Shars (disregarding any Defaulting Lender's Commitment), but
only to the extent that the sum of (A) the aggregate principal amount of all Loans made by such
non-Defaulting Lenders and outstanding at such time, plus (B) the aggregate amount of such
non-Defaulting Lenders' LC Exposures (before giving effect to the reallocation contemplated
herein), plus (C) such Defaulting Lender's LC Exposure does not exceed the total of all non-
Defaulting Lenders' Commitments, and in no event shall the sum of the aggregate principal
amount of all Loans made by a non-Defaulting Lender plus its LC Exposure after giving effect to
the reallocation described in this clause (i) exceed such non-Defaulting Lender's Commtment;
(ii) if the reallocation described in clause (i) above cannot, or can only
parially, be effected, the Borrower shall, within one Business Day following notice by any
Issuing Ban, cash-collateralze such Defaulting Lender's LC Exposure (afer giving effect to
any parial reallocation pursuant to clause (i) above) by providing cash collateral to such Issuing
Ban in accordance with Section 2.05(i); provided, however, that, so long as no Default or Event
of Default has occurred and is continuing, such cash collateral shal be released promptly upon
the earliest of (A) the full reallocation of the LC Exposure among non-Defaulting Lenders in
accordance with clause (i) above, (B) the termnation of the Defaulting Lender status of the
35
402692572v2
applicable Lender and (C) such Issuing Ban's good-faith determnation that there exists excess
cash collateral (in which case, the amount equal to such excess cash collateral shall be released);
(iii) if and to the extent that the LC Exposures of the non-Defaulting
Lenders are reallocated pursuant to this Section 2.21(a), then the LC Paricipation Fees payable
to the Lenders pursuant to Section 2.06(b) shall be adjusted in accordance with such non-
Defaulting Lenders' reallocated percentage of the tota LC Exposure; or
(iv) if and to the extent that any Defaulting Lender's LC Exposure is
neither reallocated nor cash-collateralized pursuant to this Section 2.21(a), then, without
prejudice to any other rights or remedies of any Issuing Ban or any Lender hereunder, all LC
Paricipation Fees payable under Section 2.06(b) with respect to such Defaulting Lender's LC
Exposure shall be payable to the applicable Issuing Bank until such Defaulting Lender's LC
Exposure is fully reallocated and/or cash-collateralzed.
(b) So long as any Lender is a Defaulting Lender, no Issuing Ban shall be
required to issue, renew, extend or otherwise amend any Letter of Credit unless it is satisfied that
(i) its exposure in respect of al outstanding Letters of Credit is fully covered by the
Commitments of non-Defaulting Lenders and/or cash collateral provided by the Borrower in
accordance with Section 2.21(a), and (ii) paricipating interests in any such newly issued or
increased Letter of Credit wil be allocated among non-Defaulting Lenders and/or cash-
collateralized in a manner consistent with Section 2.21(a) (and Defaulting Lenders shall not
paricipate therein).
(c) No Commitment of any Lender shall be increased or otherwise affected,
and, except as otherwise expressly provided in ths Section 2.21, the performance by the
Borrower of its obligations under this Agreement shall not be excused or otherwise modfied, as
a result of the operation of this Section 2.21. The rights and remedies against a Defaulting
Lender under this Section 2.21 are in addition to any other rights and remedies that the Borrower,
the Administrative Agent, any Issuing Ban or any Lender might have against such Defaulting
Lender. The failure of any Lender to perform its obligations under this Agreement shall not
excuse or relieve any other Lender or any Issuing Bank of its obligations under this Agreement,
and no Lender or Issuing Ban shall be responsible for the default of any other Lender or Issuing
Ban except to the extent expressly provided herein.
(d) If the Borrower, the Administrative Agent and each Issuing Bank agree in
writing, in their reasonable determination, that a Lender should no longer be deemed to be a
Defaulting Lender, the Administrative Agent wil so notify the other paries hereto, whereupon
as of the effective date specified in such notice and subject to any conditions set forth therein
(which may include arangements with respect to cash collateral), that Lender wil purchase such
portion of outstanding Loans of the other Lenders and/or parcipations of the other Lenders in
outstanding Letters of Credit, and take such other actions, as the Administrative Agent may
determine to be necessar to cause the Loans and funded and unfunded paricipations in Letters
of Credit to be held on a pro rata basis by the Lenders in accordance with their Pro Rata Shares
(without giving effect to Section 2.21(a)), whereupon such Lender wil cease to be a Defaulting
Lender; provided, however, that (i) no adjustments wil be made retroactively with respect to
fees accrued or payments made by or on behalf of the Borrower while that Lender was a
36
402692572v2
Defaulting Lender, and (ii) except to the extent expressly agreed otherwise by the affected
paries, no change hereunder from Defaulting Lender to Lender wil constitute a waiver or
release of any claim of any pary hereunder arsing from such Lender's having been a Defaulting
Lender.
(e) Notwithstanding anyting to the contrar contained in ths Agreement, any
payment of principal, interest, Facilty Fees (with respect to the used portion of a Defaulting
Lender's Commtment), LC Paricipation Fees or other amounts received by the Administrative
Agent for the account of any Defaulting Lender under this Agreement (whether voluntar or
mandatory, at maturity, pursuant to Article VII or otherwise) shall be applied at such time or
times as may be determined by the Administrative Agent as follows: first, to the payment of any
amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the
payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing
Banks hereunder; third, if so determned by the Administrative Agent or requested by any
Issuing Ban, to be held as cash collateral for future funding obligations of such Defaulting
Lender in respect of any paricipation in any Letter of Credit; fourth, as the Borrower may
request (so long as no Default or Event of Default exists), to the funding of any Loan in respect
of which that Defaulting Lender has failed to fund its portion as required by this Agreement, as
determned by the Admnistrative Agent; fift, if so determned by the Administrative Agent and
the Borrower, to be held as cash collateral and released in order to satisfy obligations of such
Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amount
owing to any Lender or Issuing Bank as a result of any judgment of a court of competent
jurisdiction obtained by such Lender or Issuing Bank against such Defaulting Lender as a result
of such Defaulting Lender's breach of its obligations under this Agreement; seventh, so long as
no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a
result of any judgment of a court of competent jurisdiction obtained by the Borrower against
such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under
this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of
competent jurisdiction; provided, however, that if (i) any such payment is a payment of the
principal amount of any Loan in respect of which such Defaulting Lender has not fully funded its
appropriate share, and (ii) such Loan was made or the related Letter of Credit was issued at a
time when the applicable conditions set forth in Article N were satisfied or waived, then such
payment shall be applied solely to repay the Loans of all non-Defaulting Lenders on a pro rata
basis prior to being applied to the repayment of any Loan or porton thereof of such Defaulting
Lender; and further provided, however, that any amounts held as cash collateral for funding
obligations of a Defaulting Lender shall be returned to such Defaulting Lender upon the
termnation of this Agreement and the satisfaction of such Defaulting Lender's obligations
hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender
that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral
pursuant to this Section 2.21 shall be deemed to have been paid to and redirected by such
Defaulting Lender, and each Lender irrevocably consents thereto.
(f) Upon any Lender becoming a Defaulting Lender, the Borrower may
remove and replace such Lender in accordance with Section 9.08.
37
402692572v2
ARTICLE il
REPRESENTATIONS AN WARRNTIES
The Borrower represents and warants to each of the Lenders and Issuing Banks that:
Section 3.01 Organization; Powers. Each of the Borrower and the Significant
Subsidiares (a) is a corporation duly organzed, validly existing and in good standing under the
laws of the jurisdiction of its organization, (b) has all requisite power and authority to own its
property and assets and to car on its business as now conducted and as proposed to be
conducted, (c) is qualified to do business in every jurisdiction where such qualfication is
required, except where the failure so to qualify would not result in a Material Adverse Effect,
and (d) in the case of the Borrower, has the corporate power and authority to execute, deliver and
perform its obligations under each of the Loan Documents and each other agreement or
instrument contemplated thereby to which it is or wil be a pary and to borrow hereunder.
Section 3.02 Authorization. The execution, delivery and performance by the Borrower
of each of the Loan Documents, and the Borrowings and procurement of Letters of Credit
hereunder (collectively, the "Transactions'ri, (a) have been duly authorized by all requisite
corporate and, if required, stockholder action and (b) wil not (i) violate (A) any provision of
law, statute, rule or regulation the violation of which could reasonably be expected to impair the
validity and enforceability of this Agreement or any other Loan Document or materially impair
the rights of or benefits available to the Lenders or the Issuing Bans under the Loan Documents,
or of the certificate or aricles of incorporation or other constitutive documents or bylaws of the
Borrower or any Significant Subsidiar, (B) any order of any Governmental Authority the
violation of which could reasonably be expected to impair the valdity or enforceabilty of this
Agreement or any other Loan Document, or materially impair the rights of or benefits available
to the Lenders or the Issuing Banks under the Loan Documents, or (C) any provision of any
indenture or other material agreement or instrment evidencing or relating to borrowed money to
which the Borrower or any Significant Subsidiar is a pary or by which any of them or any of
their property is or may be bound in a manner which could reasonably be expected to impair the
validity and enforceabilty of this Agreement or any other Loan Document or materially impair
the rights of or benefits available to the Lenders or the Issuing Banks under the Loan Documents,
(ii) be in conflct with, result in a breach of or constitute (alone or with notice or lapse of time or
both) a default under any such indenture, agreement or other instrment in a manner which could
reasonably be expected to impair the validity and enforceabilty of this Agreement or any other
Loan Document or materially impair the rights of or benefits available to the Lenders or the
Issuing Banks under the Loan Documents or (ii) result in the creation or imposition under any
such indenture, agreement or other instrment of any Lien upon or with respect to any property
or assets now owned or hereafter acquired by the Borrower.
Section 3.03 Enforceability. This Agreement has been duly executed and delivered by
the Borrower and constitutes, and each other Loan Document when executed and delivered by
the Borrower wil constitute, a legal, vald and binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms.
Section 3.04 Governmental Approvals. No action, consent or approval of, registration
or filing with or any other action by any Governmental Authority is or wil be required in
38
402692572v2
connection with the Transactions, except such as have been made or obtained and are in full
force and effect.
Section 3.05 Financial Statements. The Borrower has heretofore furnished to the
Lenders and the Issuing Banks its (a) consolidated balance sheets and statements of income and
statements of cash flow as of and for the fiscal year ended December 31, 200, audited by and
accompanied by the opinion of Deloitte & Touche LLP, independent public accountants, and (b)
unaudited consolidated balance sheets and statements of income and statements of cash flow as
of and for the fiscal quarer ended September 30, 2010, certified by a Financial Offcer of the
Borrower. All such financial statements present fairly the financial 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 thereto, together with the Borrower's Annual Report
on Form 10- K for the fiscal year ended December 31, 2009, reflect all liabilties, direct or
contingent, of the Borrower and its consolidated Subsidiares as of the dates thereof which are
material on a consolidated basis. Such financial statements were prepared in accordance with
GAAP applied (except as noted therein) on a consistent basis.
Section 3.06 No Material Adverse Change. Except as disclosed in the Borrower's
Annual Report on Form 10- K for the fiscal year ended December 31, 2009 and in any document
fied after December 31,2009, but prior to the date of this Agreement, pursuant to Section 13(a),
14 or 15(d) of the Securities Exchange Act of 1934, there has been no change in the business,
assets, operations or financial condition of the Borrower and the Subsidiares, taken as a whole,
since December 31, 2009, which could reasonably be expected to have a Material Adverse
Effect. For the avoidance of doubt, the representation set forth in this Section 3.06 is and wil 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 2.1 O( c) and at and as of the effective date of any extension of
the Expiration Date pursuant to Section 2.20.
Section 3.07 Litigation; Compliance with Laws.
(a) Except as set forth in the Annual Report of the Borrower on Form 1O-K
for the year ended December 31, 2009, or in any document filed after December 31, 2009, but
prior to the date of this Agreement pursuant to Section 13(a), 14 or 15(d) of the Securities
Exchange Act of 1934, there are not any actions, suits or proceedings at law or in equity or by or
before any Governmental Authority now pending or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any Subsidiary or any business, property or rights
of any such person (i) which involve any Loan Document or the Transactions or (ii) which could
reasonably be anticipated, individually or in the aggregate, to result in a Material Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiares is in violation of any law,
rule or regulation, or in default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default would be reasonably likely to result in
a Material Adverse Effect.
39
4092572v2
Section 3.08 Federal Reserve Regulations.
(a) Neither the Borrower nor any of the Subsidiares is engaged principally, or
as one of its important activities, in the business of extending credit for the purpose of
purchasing or carng Margin Stock.
(b) No par of the proceeds of any Loan or Letter of Credit wil be used,
whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to
purchase or cary Margin Stock or to extend credit to others for the purpose of purchasing or
carng Margin Stock or to refund indebtedness originally incurred for such purpose, or (ii) for
any purpose which entails a violation of, or which is inconsistent with, the provisions of the
Regulations of the Board, including Regulation U or X.
Section 3.09 Investment Company Act. The Borrower is not an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of 1940.
Section 3.10 No Material Misstatements. No information, report, financial statement,
exhibit or schedule furnished by or on behalf of the Borrower to the Administrative Agent, any
Lender or any Issuing Ban in connection with the negotiation of any Loan Document or
included therein or delivered pursuant thereto contained, contains or wil contain any material
misstatement of fact or, when considered together with all reports theretofore filed with the
Securities 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 misleading.
Section 3.11 Employee Benefit Plans. Each of the Borrower and its ERISA Affiliates
is in compliance in all material respects with the applicable provisions of ERISA and the
regulations and published interpretations thereunder. No Reportble Event has occurred as to
which the Borrower or any ERISA Affiiate was required to file a report with the PBGC. The
value of the assets of each Plan is at least 80% of the "funding target" (as defined in Code
Section 430(d)(1)) of such Plan as of the last annual valuation date applicable thereto.
Section 3.12 Environmental and Safety Matters. Each of the Borrower and the
Subsidiares has complied with all Federal, state, local and other statutes, ordinances, orders,
judgments, rulings and regulations relating to environmental pollution or to environmental or
nuclear regulation or control or to employee health or safety, except where noncompliance would
not be reasonably likely to result in a Material Adverse Effect. Neither the Borrower nor any
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 manage any hazardous wastes, hazardous substaces, hazardous
materials, toxic substances, toxic pollutants or substaces similarly denominated, as those terms
or similar terms are used in the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response Compensation and Liabilty Act, the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Clean Air Act, the Clean Water Act or
any other applicable law relating to environmental pollution or employee health and safety, or
any nuclear fuel or other radioactive materials, in all cases in violation of any law or any
regulations promulgated pursuant thereto, where such violation would be reasonably likely to
40
402692572v2
result in a Material Adverse Effect. The Borrower is aware of no events, conditions or
circumstances involving environmental pollution or contamnation or employee health or safety
that could reasonably be expected to result in a Material Adverse Effect. The representations and
waranties set forth in this 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 31,2009 and in any document fied afer December 31,2009, but prior to the date of
this Agreement pursuant to Section 13(a), 14 or 15(d) of the Securities Exchange Act of 1934;
provided, however, that the inclusion of such matters, circumstances or events as exceptions (or
any other exceptions contained in the representations and waranties which refer to the
Borrower's Annual Report on Form 10- K for the fiscal year ended December 31, 2009 or in any
document fied after December 31, 2009, but prior to the date of this Agreement pursuant to
Section 13(a), 14 or 15(d) of the Securities Exchange Act of 1934) shall not be construed to
mean that the Borrower has concluded that any such matter, circumstance or effect is likely to
result in a Material Adverse Effect.
Section 3.13 Significant Subsidiares. Schedule 3.13 sets forth as of the date hereof a
list of all Significant Subsidiares of the Borrower and the percentage ownership interest of the
Borrower therein.
ARTICLE IV
CONDITIONS TO BORROWINGS, LETTRS OF CREDIT AND EXTENSIONS
Section 4.01 All Borrowings and Letters of Credit. The obligations of the Lenders to
make Loans on the date of each Borrowing (including the first Borrowing under this Agreement
and each Borrowing in which Loans are refinanced with new Loans as contemplated by Section
2.02(e) or LC Disbursements are refinanced with Loans as contemplated by Section 2.05(e)), and
the obligations of the Issuing Banks to issue, renew, extend or otherwise amend Letters of Credit
(including the first issuance of a Letter of Credit under this Agreement (including pursuant to
Section 2.05(1)), are subject to the satisfaction of the following conditions:
(a) The Administrative Agent shall have received (i) in the case of a
Borrowing, a notice of such Borrowing as required by Section 2.03 and (ii) in the case of the
issuance, renewal, extension or other amendment of a Letter of Credit, a notice requesting the
same and any letter of credit application as required by Section 2.05; provided, however, that no
such notice shall be required in respect of a Letter of Credit deemed to be issued pursuant to
Section 2.05(1).
(b) The representations and waranties set forth in Article il hereof
(excluding (i) in the case of each Borrowing (including each Borrowing in which Loans or LC
Disbursements are refinanced with new Loans) after the Closing Date and each issuance,
renewal, extension or other amendment of a Letter of Credit after the Closing Date, the
representation set forth in Section 3.06 and (ii) in the case of each refinancing of Loans or LC
Disbursements and each issuance, renewal, extension or other amendment of a Letter of Credit,
in each case if the same does not increase the Revolving Credit Exposure of any Lender, the
representations set forth in Section 3.07) shall be true and correct in all material respects on and
as of the date of such Borrowing or the date of such issuance, renewal, extension or other
41
402692572v2
amendment of a Letter of Credit, 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
forth herein and in each other Loan Document on its par to be observed or performed, and no
Event of Default or Default shall have occurred and be continuing at the time of and immediately
afer such Borrowing or such issuance, renewal, extension or other amendment of a Letter of
Credit.
Each Borrowing and each issuance, renewal, extension or other amendment of a Letter of Credit
shall be deemed to constitute a representation and waranty by the Borrower on the date thereof
as to the matters specified in paragraphs (b) and (c) of this Section 4.01.
Section 4.02 First Borrowing or Letter of Credit. The obligations of the Lenders to
make Loans on the date of the first Borrowing under this Agreement, and the obligation of each
Issuing Bank to issue its first Letter of Credit under this Agreement (including pursuant to
Section 2.05(1)), are subject to the satisfaction ofthe following conditions:
(a) The Administrative Agent shall have received each of the following, in
form and substance satisfactory to it:
(i) Opinions of Davis Wright Tremaine LLP, counsel to the Borrower,
Hawley Troxell Ennis & Hawley LLP, Idaho counsel to the Borrower, and Crowley Fleck PLLP,
Montana counsel to the Borrower (or such other firm or firms approved by the Admnistrative
Agent), each dated the date of this Agreement and addressed to the Administrative Agent, the
Lenders and the Issuing Bans (or, in the case of the latter two opinions, addressed to Davis
Wright Tremaine LLP), with respect to such matters relating to the Borrower and the Loan
Documents as the Administrative Agent or any Lender or Issuing Ban may reasonably request.
The Borrower hereby instrcts such counsel to deliver such opinion to the Admnistrative Agent.
(ii) Evidence satisfactory to the Administrative Agent and set forth on
Schedule 4.02(a)(ii) that the Borrower shall have obtained all consents and approvals of, and
shall have made all filings and registrations with, any Governmental Authority required in order
to consummate the Transactions, in each case without the imposition of any condition which, in
the judgment of the Lenders or the Issuing Bans, could adversely affect their rights or interests
under the Loan Documents.
(iii) A copy of the certificate or aricles of incorporation of the
Borrower (as most recently amended and restated), including all amendments thereto, certified as
of a recent date by the Secretary of State of the State of Washington, and a certificate as to the
good standing of the Borrower as of a recent date, from such Secretar of State.
(iv) A certificate of the Secretar or Assistant Secretar of the
Borrower dated the date of this Agreement and certifying (A) that attached thereto is a tre and
complete copy of the restated aricles of incorporation and the bylaws of the Borrower as in
effect on the date of this Agreement and at all times since a date prior to the date of the
resolutions described in clause (B) below, (B) that attached thereto is a tre and complete copy
of resolutions duly adopted by the board of directors of the Borrower authorizing the execution,
42
402692572v2
delivery and performance of the Loan Documents and borrowings and procurement of Letters of
Credit hereunder, and that such resolutions have not been modified, rescinded or amended and
are in full force and effect, (C) that the certificate or aricles of incorporation of the Borrower
have not been amended since the date of the last amendment thereto shown on the certification
with respect thereto furnished pursuant to clause (iii) above, and (D) as to the incumbency and
specimen signature of each offcer executing any Loan Document or any other document
delivered in connection therewith on behalf of the Borrower.
(v) A certificate of another offcer of the Borrower as to the
incumbency and specimen signature of the Secretar or Assistant Secretar executing the
certificate pursuant to clause (iv) above.
(vi) A certificate, dated the date of this Agreement and signed by a
Financial Officer of the Borrower, confirmng compliance with the conditions precedent set forth
in paragraphs (b) and (c) of Section 4.01.
(vii) This Agreement, the Supplemental Indenture, the Bond Delivery
Agreement, the First Mortgage Bond and any Notes requested by the Lenders for issuance on the
date of this Agreement, duly executed and delivered by al paries thereto, together with a copy
of the bond application (including all attachments thereto) relating to the First Mortgage Bond.
(viii) A copy of the First Mortgage, certified by a Financial Officer of
the Borrower.
(ix) A copy of title insurance policy No. NSL 31426-SEA issued by
First American Title Insurance Company, together with copies of all endorsements thereto
(including an endorsement extending the coverage of such policy to the Supplemental Indenture
and the First Mortgage Bond), namng the trstee under the First Mortgage as the insured,
insuring the Borrower's title to the real property subject to the Lien of the First Mortgage, and
the validity and first priority of the Lien of the First Mortgage (subject to Liens permtted to exist
by the terms of the First Mortgage), in an amount not less than $785,000,000, certified by a
Financial Officer of the Borrower.
(x) A letter agreement between the Borrower and Union Ban
concerning the fees payable pursuant to Section 2.06(c), duly executed and delivered by the
Borrower.
(xi) Letter agreements between the Borrower and each Issuing Ban
concerning such Issuing Bank's maximum Issuing Bank Exposure, duly executed and delivered
by all paries thereto.
(xii) A Funds Transfer Agreement between Union Bank and the
Borrower (including a related Funds Transfer Authorization and Master Repetitive Wir
Instrction referrng to said Agreement), substatially in Union Bank's usual form, duly
executed and delivered by the Borrower.
(xiii) Such other documents as the Administrative Agent, any Lender,
any Issuing Bank or legal counsel to any of the foregoing may reasonably request.
43
402692572v2
(b) All fees payable by the Borrower to the Administrative Agent, the "Co-
Lead Arrangers" identified on the cover page of this Agreement, the Issuing Banks, the Lenders
or any of their respective Affliates on or prior to the date of this Agreement with respect to this
Agreement, and all amounts payable by the Borrower pursuant to Section 10.05 for which
invoices have been delivered to the Borrower on or prior to such date, shall have been paid in
full or arangements satisfactory to the Administrative Agent shall have been made to cause them
to be paid in full concurrently with the disbursement of the proceeds of any Borrowing to be
made on such date.
(c) All legal matters incident to the Loan Documents and the transactions
contemplated thereby shall be reasonably satisfactory to the Administrative Agent, the Lenders
and their respective legal counseL.
(d) The commitments of the lenders under the 200 Credit Agreement and the
lenders under the 2009 Credit Agreement shal have been termnated, and the obligations of the
Borrower under the 200 Credit Agreement and under the 200 Credit Agreement shall have
been paid in fulL.
Section 4.03 Extensions. Each extension of the Expiration Date pursuant to Section
2.20 is subject to the satisfaction of the following additional conditions on the effective date of
such extension:
(a) No Loans shal be outstanding on the date of such extension.
(b) The representations and waranties set forth in Article III shall be tre and
correct 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 earlier date.
(c) The Borrower shall be in compliance with all the terms and provisions set
forth herein and in each other Loan Document on its par to be observed or performed, and at the
time of and immediately after such extension no Event of Default or Default shall have occurred
and be continuing.
(d) The Borrower shall have furnished to the trustee under the First Mortgage
the evidence of extension, executed by the Admnistrative Agent, contemplated by Artcle I,
Section 1, subsection (II)(h) of the initial Supplementa Indenture or any comparable provision of
a subsequent Supplemental Indenture.
An extension of the Expiration Date shall be deemed to constitute a representation and waranty
by the Borrower on the date thereof as to the matters specified in paragraphs (b) and (c) of this
Section 4.03.
ARTICLE V
AFIRATNE COVENANS
The Borrower covenants and agrees with each Lender and each Issuing Ban that, so
long as any Commitment shall remain in effect or the principal of or interest on any Loan or LC
44
402692572v2
Disbursement, any Fees or any other amounts payable under any Loan Document shall be unpaid
or any Letter of Credit shall remain outstading:
Section 5.01 Existence; Businesses and Propertes.
(a) The Borrower shall, and shall cause each Significant Subsidiar to, do or
cause to be done all things necessar to preserve, renew and keep in full force and effect its legal
existence, except as otherwise expressly permtted under Section 6.03.
(b) The Borrower shall, and shall cause each Significant Subsidiar to, (i) do
or cause to be done all things necessar to obtain, preserve, renew, extend and keep in full force
and effect the rights, licenses, permts, franchises, authorizations, patents, copyrghts, trademarks
and trade names utilized in the conduct of its business, except where the failure so to obtain,
preserve, renew, extend or maintain any of the foregoing would not result in a Material Adverse
Effect; (ii) maintain and operate its business in substantially the manner in which it is presently
conducted and operated, except as otherwise expressly permitted under this Agrement; (ii)
comply in all material respects with al 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 maintain and
preserve all property material to the conduct of its business and keep such property in good
repair, working order and condition and from time to time make, or cause to be made, al needful
and proper repairs, renewals, additions, improvements and replacements thereto necessar in
order that the business cared on in connection therewith may be properly conducted at all
times; provided, however, that the Borrower or any Significant Subsidiar may cause the
discontinuance of the operation or a reduction in the capacity of any of its facilities, or any
element or unit thereof, including real and personal properties, facilties, machinery 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
discontinuance 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 accordance
with the terms of this Agreement and within a reasonable time shall endeavor to effectuate the
same.
Section 5.02 Insurance.
(a) The Borrower shall, and shall cause each Significant Subsidiar to,
(i) maintain insurance, to such extent and against such risks, as is customar with companes in
the same or similar businesses and owning similar properties in the same general area in which it
operates and (ii) maintain such other insurance as may be required by law. All insurance
required by this Section 5.02 shall be maintained with financially sound and reputable insurers or
through self-insurance; provided, however, that the portion of such insurance constituting self-
insurance shall be comparable to that usually maintained by companies engaged in the same or
similar businesses and owning similar properties in the same general area in which the Borrower
or such Significant Subsidiar, as applicable, operates and the reserves maintained with respet
to such self-insured amounts are deemed adequate by its offcer or officers responsible for
insurance matters.
45
402692572v2
Section 5.03 Taxes and Obligations. The Borrower shall, and shal cause each
Significant Subsidiar to, pay and discharge promptly when due all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or in respect of its
property, before the same shall become delinquent or in default, as well as all lawful claims for
labor, materials and supplies or otherwise which, if unpaid, might give rise to a Lien upon such
properties or any par thereof; provided, however, that such payment and discharge shal not be
required with respect to any such tax, assessment, charge, levy or claim so long as the validity or
amount thereof shall be contested in good faith by appropriate proceedings and the Borrower
shall, to the extent required by GAAP, have set aside on its books adequate reserves with respect
thereto.
Section 5.04 Financial Statements, Reports, etc. The Borrower shal furnish to the
Admnistrative Agent, each Lender and each Issuing Bank:
(a) within 105 days after the end of each fiscal year of the Borrower,
consolidated and consolidating balance sheets and related statements of income and statements
of cash flow, showing the financial condition of the Borrower and its consolidated Subsidiares
as of the close of such fiscal year and the results of their operations during such year, all audited
by Deloitte & Touche LLP or other independent public accountants of recognzed national
standing acceptable to the Required Lenders and accompanied by an opinion of such accountants
(which shall not be qualified in any material respect) to the effect that such consolidated
financial statements fairly present the financial condition and results of operations of the
Borrower on a consolidated basis (except as noted therein) in accordance with GAAP
consistently applied; provided, however, that the Borrower shall be deemed to have satisfied the
requirement to furnish such financial statements and opinion if and to the extent that the
Borrower has, within the period specified above, (i) filed documents meeting the requirements
set forth above with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or al of the functions of said Commssion, and (ii) posted such documents on
the Borrower's home page on the worldwide web (at the date of this Agreement, located at
httpllwww.avistacorp.com) (such filing and posting being referred to as "Electronic Delivery");
(b) within 50 days after the end of each of the first three fiscal quarers of
each fiscal year of the Borrower, consolidated and, to the extent otherwise available,
consolidating balance sheets and related statements of income and statements of cash flow,
showing the financial condition of the Borrower and its consolidated Subsidiares as of the close
of such fiscal quarer and the results of their operations during such fiscal quarer and the then
elapsed portion of the fiscal year, all certified by a Financial Officer of the Borrower as fairly
presenting the financial condition and results of operations of the Borrower on a consolidated
basis in accordance with GAAP consistently applied, subject to normal year-end audit
adjustments; provided, however, that the Borrower shall be deemed to have satisfied the
requirement to furnish such financial statements and certification if and to the extent that the
Borrower has, within the period specified above, made Electronic Delivery thereof;
(c) concurrently with any delivery of financial statements under (a) or (b)
above, (i) a certificate of the relevant accounting firm opining on or certifying such statements or
of a Financial Officer of the Borrower (which certificate, when furnished by an accounting firm,
may be limited to accounting matters and disclaim responsibilty for legal interpretations)
46
40692572v2
certfying that, to the know ledge of the accounting fi or the Financial Officer, as the case may
be, no Event of Default or Default has occurred or, if an Event of Default or Default has
occurred, specifying the nature and extent thereof and any corrective action taken or proposed to
be taken with respect thereto, and (ii) a certificate of a Financial Offcer of the Borrower setting
forth in reasonable detail such calculations as are required to establish whether the Borrower was
in compliance with Section 6.05 on the date of such financial statements;
(d) promptly after the same become publicly available, copies of al periodic
and other reports, proxy statements and other materials fied by it with the Securities and
Exchange Commssion, or any Governmental Authority succeeding to any of or all the functions
of said Commssion, or with any national securities exchange, or distributed to its shareholders,
as the case may be; provided, however, that the Borrower shall be deemed to have satisfied the
requirement to furnish such reports, statements and other materials if and to the extent that the
Borrower has, within the period specified above, made Electronic Delivery thereof; and
(e) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Borrower or any Significant
Subsidiar, or compliance with the terms of any Loan Document, as the Administrative Agent,
any Lender or any Issuing Ban may reasonably request.
Section 5.05 Litigation and Other Notices. The Borrower shall furnish to the
Administrative Agent, each Lender and each Issuing Ban prompt notice of the following:
(a) any Event of Default or Default, specifying the nature and extent thereof
and the corrective action (if any) proposed to be taen with respect thereto;
(b) the filing or commencement of, or any written threat or notice of intention
of any person to file or commence, any action, suit or proceeding, whether at law or in equity or
by or before any Governmental Authority, against the Borrower or any 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 Adverse Effect.
Section 5.06 ERISA. The Borrower shall, and shal cause each Significant Subsidiar
to, comply in all material respects with the applicable provisions of ERISA, and the Borrower
shall furnish to the Administrative Agent, each Lender and each Issuing Ban (a) as soon as
possible, and in any event within 30 days after any Responsible Offcer of the Borrower or any
ERISA Affiliate either knows or has reason to know that any Reportable Event has occurred that
alone or together with any other Reportable Event could reasonably be expeted to result in
liability of the Borrower to the PBGC in an aggregate amount exceeding $25,00,00, a
statement of a Financial Officer of the Borrower setting forth details as to such Reportable Event
and the action proposed to be taken with respect thereto, together with a copy of the notice, if
any, of such Reportable Event given to the PBGC, (b) as soon as possible, and in any event
within 30 days after any Responsible Officer of the Borrower or any ERISA Affiliate either
knows or has reason to know that the value of the assets of any Plan is less than 80% of the
"funding taget" (as defined in Code Section 430(d)(l)) of such Plan as of the last annual
47
402692572v2
valuation date applicable thereto, a statement of a Financial Offcer of the Borrower setting fort
details as to such event, (c) promptly after receipt thereof, a copy of any notice the Borrower or
any ERISA Affliate may receive from the PBGC relating to the intention of the PBGC to
termnate any Plan or Plans (other than a Plan maintained by an ERISA Affliate which is
considered an ERISA Affiliate only pursuant to subsection (m) or (0) of Section 414 of the
Code) or to appoint a trustee to administer any Plan or Plans and (d) within 10 days afer the due
date for filing with the PBGC pursuant to Section 430(k) of the Code of a notice of failure to
make a required installment or other payment with respect to a Plan, a statement of a Financial
Officer of the Borrower setting forth details as to such failure and the action proposed to be taken
with respect thereto, together with a copy of such notice given to the PBGC.
Section 5.07 Maintaining Records: Access to Properties and Inspections. The Borrower
shall, and shall cause each Significant Subsidiar to, (a) maintain all financial records in
accordance with GAAP and (b) permt any representatives designated by the Administrative
Agent, any Lender or any Issuing Bank to visit and inspect its financial records and properties at
reasonable times and as often as requested and to make extracts from and copies of such
financial records, and permt any representatives designated by the Administrative Agent, any
Lender or any Issuing Bank to discuss its affairs, finances and condition with its chief financial
offcer, or other person designated by the chief financial officer, and independent accountants
therefor.
Section 5.08 Use of Proceeds and Letters of Credit. The Borrower shall use the
proceeds of the Loans and the Letters of Credit only for the purposes set forth in the preamble to
this Agreement.
ARTICLE VI
NEGATIV COVENANTS
The Borrower covenants and agrees with each Lender and each Issuing Ban that, so
long as any Commtment shall remain in effect or the principal of or interest on any Loan or LC
Disbursement, any Fees or any other amounts payable under any Loan Document shall be unpaid
or any Letter of Credit shall remain outstanding:
Section 6.01 Liens. The Borrower shall not create, incur, assume or permt to exist any
Lien on any property or assets (including stock or other securities of any person, including any
Subsidiar) now owned or hereafter acquired by it or on any income or revenues or rights in
respect of any thereof, except:
(a) Liens on property or assets of the Borrower created by the documents,
instrments or agreements existing on the date hereof and which are listed as exhibits to the
Borrower's Annual Report on Form 1O-K for the fiscal year ended December 31, 2009, to the
extent that such Liens secure only obligations arsing under such existing documents, agreements
or instrments and the amount of Indebtedness secured thereby does not exceed the amount
thereof as of the date hereof as set forth on Schedule 6.01;
(b) any Lien existing on any property or asset prior to the acquisition thereof
by the Borrower; provided that (i) such Lien is not created in contemplation of or in connection
48
402692572v2
with such acquisition and (ii) such Lien does not apply to any other property or assets of the
Borrower;
(c) the Lien of the First Mortgage and the Lien of any collateral trst
mortgage or similar instrument which would be intended to eventually replace (in one
transaction or a series of transactions) the First Mortgage (as amended, modified or
supplemented from time to time, "Collaeral Trust Mortgage'~ on properties or assets of the
Borrower to secure bonds, notes and other obligations of the Borrower but only to the extent
such Liens, collectively, secure Indebtedness, whether now existing or hereafter created, in an
aggregate amount no greater than the aggregate amount of first mortgage bonds permtted 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 Trust Mortgage);
(e) Liens for taxes, assessments or governmental charges not yet due or which
are being contested in compliance with Section 5.03;
(f) carers', warehousemen's, mechanic's, materialmen's, repairmen's or
other like Liens arsing in the ordinar course of business and securing obligations that are not
due or which are being contested in compliance with Section 5.03;
(g) pledges and deposits made in the ordinar course of business in
compliance with workmen's compensation, unemployment insurance and other social security
laws or regulations;
(h) Liens incurred or created in connection with or to secure the performance
of bids, tenders, trade contracts (other than for Indebtedness), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(i) zoning restrctions, easements, rights-of-way, restrctions on use of real
property and other similar encumbrances incurred in the ordinar course of business which, in
the aggregate, are not substantial in amount and do not materially detract from the value of the
property subject thereto or interfere with the ordinar conduct of the business of the Borrower or
any of its Subsidiares;
G) Liens (i) which secure obligations not assumed by the Borrower, (ii) on
account of which the Borrower has not and does not expect to pay interest directly or indirectly
and (ii) which exist upon real estate or rights in or relating to real estate in respect of which the
Borrower has a right-of-way or other easement for purposes of substations or transmission or
distrbution facilities;
(k) rights reserved to or vested in any federal, state or local governmental
body or agency by the terms of any right, power, franchise, grant, license, contract or permit, or
by any provision of law, to recapture or to purchase, or designate a purchase of or order the sale
49
402692572v2
of, any property of the Borrower or to termnate any such right, power, franchise, grant, license,
contract or permt before the expiration thereof;
(1) Liens of judgments covered by insurance, or upon appeal and covered by
bond, or to the extent not so covered not exceeding at one time $40,00,000 in aggregate
amount;
(m) any Liens, moneys sufficient for the discharge of which shall have been
deposited in trst with the trustee or mortgagee under the instrument evidencing such Lien, with
irrevocable authority of such trustee or mortgagee to apply such moneys to the discharge of such
Lien to the extent required for such purpose;
(n) rights reserved to or vested in any federal, state or local governmental
body or agency or other public authority to control or regulate the business or property of the
Borrower; ,
(0) any obligations or duties affecting the property of the Borrower to any
federal, state or local governmental body or agency or other public authority with respect to any
authorization, permt, consent or license of such body, agency or authority, given in connection
with the purchase, construction, equipping, testing and operation of the Borrower's utility
property;
(p) with respect to any property which the Borrower may hereafer acquire,
any exceptions or reservations therefrom existing at the time of such acquisition or any terms,
conditions, agreements, covenants, exceptions and reservations expressed or provided in the
deeds or other instruments, respectively, under and by virte of which the Borrower shall
hereafter acquire such property, none of which terms, conditions, agreements, covenants,
exceptions and reservations materially impairs the use of such property for the purposes for
which it is acquired by the Borrower;
(q) leases and subleases entered into in the ordinar course of business;
(r) baner's Liens and other Liens in the nature of a right of setoff;
(s) renewals, replacements, amendments, modifications, supplements,
refinancings or extensions of Liens set fort in clauses (a)-(d) above to the extent that the
principal amount of Indebtedness secured by such Lien immediately prior thereto is not
increased and such Lien is not extended to other property;
(t)
mining properties;
security deposits or amounts paid into trst funds for the reclamation of
(u) restrictions on transfer or use of properties and assets, first rights of
refusal, and rights to acquire propertes and assets granted to others;
(v) non-consensual equitable Liens on the Borrower's tenant-in-common or
other interest in joint projects;
50
402692572v2
(w) Liens on the Borrower's tenant-in-common or other interest in joint
projects incurred by the project sponsor without the express consent of the Borrower to such
incurrence;
(x) cash collateral in favor of the Administrative Agent as contemplated by
this Agreement; and
(y) Liens on receivables and related propertes or interests therein.
Section 6.02 Sale-Leaseback Transactions. The Borrower shall not enter into any Sale-
Leaseback if as a result thereof the aggregate outstanding principal amount of Attrbutable Debt
outstanding in connection with all Sale-Leasebacks entered into after the date hereof would
exceed 5% of the total tangible assets of the Borrower as of the date of the financial statements
most recently delivered under Section 5.04(a) or (b) at such time.
Section 6.03 Mergers. Consolidations and Acquisitions. The Borrower shall not, and
shall not permit any Significant Subsidiar (without the consent of the Required Lenders, not to
be unreasonably withheld) to, merge with or into or consolidate with any other person, or
purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or
substantialy al of the assets of any other person (whether directly by purchase, lease or other
acquisition of all or substantialy all of the assets of such person or indirectly by purchase or
other acquisition of all or substantially all of the capita stock of such other person) other than
acquisitions in the ordinary course of the Borrower's or such Signficant Subsidiar's business,
except that, if at the time thereof and immediately after giving effect thereto no Event of Default
or Default shall have occurred and be continuing, (a) the Borrower or any Significant Subsidiar
may merge with or into or consolidate with the Borrower or any Subsidiar, provided that, in any
transaction involving the Borrower, the Borrower is the surviving person, (b) the Borrower or
any Significant Subsidiar may purchase, lease or otherwise acquire from any Subsidiar all or
substantially all of its assets, (c) the Borrower may merge with or into or consolidate with any
other person so long as (i) in the case where the business of such other person, or an Affiliate of
such other person, entirely or primarly consists of an electrc or gas utilty business, (A) if the
Borrower is the surviving person, then, immediately after such merger or consolidation, the
Senior Debt Rating assigned to the applicable Indebtedness of the Borrower by two nationally
recognized credit-rating agencies shall be equal to or higher than Lowest Investment Grade and
(B) if the Borrower is not the surviving person, (1) the surviving person shall assume in writing
the obligations of the Borrower under this Agreement and any other Loan Documents and (2)
immediately afer such merger or consolidation, the ratings assigned to the most senior secured
public Indebtedness of the surviving person by two nationally recognized credit rating 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 primarly consist of
an electric or gas utilty business, (A) the assets of such person at the time of such consolidation
or merger do not exceed 10% of the total assets of the Borrower and its Subsidiares after giving
effect to such merger or consolidation, computed and consolidated in accordance with GAAP
consistently applied and (B) if the Borrower is not the survving person, the surviving person
shall assume in writing the obligations of the Borrower under this Agreement and the other Loan
Documents, (d) the Borrower may purchase, lease or otherwise acquire all or substantialy al of
the assets of any other person (including by purchase or other acquisition of all or substatially
51
402692572v2
all of the capita stock of such person) so long as (i) the assets being purchased, leased or
acquired (or the assets of the person whose capital stock is being acquired) entirely or primarly
consist of electric or gas utilty assets or (ii) in the case where the assets being purchased, leased
or acquired (or the assets of the person whose capital stock is being acquired) do not entirely or
primarly consist of electrc or gas utility assets, the assets being purchased, leased or acquired
(or the Borrower's proportionate share of the assets of the person whose capital stock is being
acquired) do not exceed 10% of the total assets of the Borrower and its Subsidiares, after giving
effect to such purchase, lease or acquisition, computed and consolidated in accordance with
GAAP consistently applied, (e) any Significant Subsidiar may merge with or into or consolidate
with any other person so long as the assets of such person at the time of such merger or
consolidation do not exceed 10% of the total assets of the Borrower and its Subsidiares after
giving effect to such merger or consolidation, computed and consolidated in accordance with
GAAP consistently applied, and (f) any Significant Subsidiar may purchase, lease or otherwise
acquire all or substantially all of the assets of any other person (including by purchase or other
acquisition of all or substantially all of the capital stock of such person) so long as the assets
being purchased, leased or acquired (or the Significant Subsidiar's proportionate share of the
assets of the person whose capital stock is being acquired) do not exceed 10% of the total assets
of the Borrower and its Subsidiares after giving effect to such purchase, lease or acquisition,
computed and consolidated in accordance with GAAP consistently applied; provided, however,
that notwithstanding anything in this Section 6.03 to the contrar, this 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 consummation of such transaction, such
Significant Subsidiary shal have or be deemed to have a ratio of tota long-term Indebtedness to
total stockholders' equity equal to or less than 1.857 to 1.0.
Section 6.04 Disposition of Assets. The Borrower shall not, and shal not permt any
Significant Subsidiar (without the consent of the Required Lenders, not to be unreasonably
withheld) to, sell, lease, transfer, assign or otherwise dispose of any assets or any interest therein
(whether now owned or hereafter acquired), except (a) dispositions of obsolete or retired
property not used or useful in its business, (b) grants of Liens by the Borrower permtted under
Section 6.01 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 accordance
with the settlement agreement among the Borrower, the Washington Public Power Supply
System and Bonnevile Power Administration, as the same may be amended, modified or
supplemented from time to time, (d) disposition by the Borrower of all or any portion of its
transmission assets in one or more RTO Transactions, (e) disposition by the Borrower of its
interests in the Colstrip Project and related assets, (f) disposition of receivables and related
properties or interests therein, (g) other dispositions of assets (not otherwise permtted by clauses
(a)-(f) of this Section) made in the ordinar course 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 consolidated in accordance with GAAP consistently applied, and (h) other
dispositions of assets (not otherwise permitted by clauses (a)-(f) of this Section) not exceeding in
any fiscal year 10% of the assets of the Borrower and its Subsidiares as of the end of the prior
fiscal year, computed and consolidated in accordance with GAAP consistently applied; provided,
however, that notwithstanding anything in this Section 6.04 to the contrar, ths Section 6.04
shall not be deemed to prohibit any disposition by a Significant Subsidiar if, afer giving effect
to the consummation of such transaction, such Significant Subsidiar shall have or be deemed to
52
402692572v2
have a ratio of total long-term Indebtedness to tota stockholders' equity equal to or less than
1.857 to 1.0.
Section 6.05 Consolidated Tota Debt to Consolidated Tota Capitalization Ratio. The
Borrower shal not permit the ratio of Consolidated Total Debt to Consolidated Total
Capitalzation to be, at any time, greater than 0.65 to 1.00.
Section 6.06 Public Utility Regulatory Borrowing Limits. The Borrower shall not incur
actual borrowings or commitments or issued and outstading debt of the Borrower in excess of
the amount authorized by statute or by orders of public utility commissions, as in effect from
time to time.
ARTICLE VII
EVENTS OF DEFAULT
In case of the happening (and during the continuance) of any of the following events
("Events of Default"):
(a) any representation or warty made or deemed made in or in connection
with any Loan Document, any Borrowing or any Letter of Credit, or any representation or
waranty contaned in any certificate or other document furnished in connection with or pursuant
to any Loan Document, shall prove to have been false or misleading in any material respect
when so made or deemed made;
(b) default shall be made in the payment of any principal of any Loan or LC
Disbursement when and as the same shall become due and payable, whether at the scheduled
maturity date thereof or at a date fixed for prepayment thereof or by acceleration thereof orotherwise; .
(c) default shall be made in the payment of any interest on any Loan or LC
Disbursement or any Fee or other amount (other than an amount referred to in (b) above) due
under any Loan Document, when and as the same shal become due and payable, and such
default shall continue unremedied for a period of five Business Days;
(d) default shal be made in the due observance or performance by the
Borrower of any covenant, condition or agreement contained in Section 5.01(a), 5.05, 5.07(b) or
5.08 or in Aricle VI;
(e) default shall be made in the due observance or performance by the
Borrower of any covenant, condition or agreement (other than those specified in (b), (c) or (d)
above) contained in any Loan Document, and such default shall continue unremedied for a
period of 30 days after notice thereof from the Admnistrative Agent, any Lender or any Issuing
Bank to the Borrower;
(f) the Borrower or any Significant Subsidiar shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any Indebtedness when the
aggregate unpaid principal amount is in excess of $40,000,00, when and as the same shall
become due and payable (after expiration of any applicable grace period), or (ii) fail to observe
53
40269272v2
or perform any other term, covenant, condition or agreement (after expiration of any applicable
grace period) contained in any agreement or instrment evidencing or governng any such
Indebtedness if the effect of any failure referred to in this clause (ii) is to cause, or to permit the
holder or holders of such Indebtedness or a trstee on its or their behalf (with or without the
giving of notice, the lapse of time or both) to cause, such Indebtedness to become due prior to its
stated maturty;
(g) an involuntar proceeding shall be commenced or an involuntar petition
shall be fied in a court of competent jurisdiction seeking (i) relief in respect of the Borrower or
any Significant Subsidiar, or of a substantial par of the property or assets of the Borrower or a
Significant Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal or state bankrptcy, insolvency, receivership or similar law, (ii)
the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any Significant Subsidiar or for a substantial par of the property or assets of
the Borrower or a Significant Subsidiar or (iii) the winding-up or liquidation of the Borrower or
any Significant Subsidiar; and such proceeding or petition shall continue undismissed, or an
order or decree approving or ordering any of the foregoing shall be entered and continue
un stayed and in effect, for a period of 60 or more days;
(h) the Borrower or any Significant Subsidiar shall (i) voluntarly commence
any proceeding or file any petition seeking relief under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other Federal or state banptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in (g) above, (ii)
apply for or consent to the appointment of a receiver, trstee, custodian, sequestrator,
conservator or similar offcial for the Borrower or any Significant Subsidiar or for a substantial
par of the property or assets of the Borrower or any Significant Subsidiar, (iv) file an answer
admitting the material allegations of a petition fied against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, (vi) become unable, admit in writing its inabilty
or fail generally to pay its debts as they become due or (vii) take any action for the purpose of
effecting any of the foregoing;
(i) a final judgment or judgments shall be rendered against the Borrower, any
Significant Subsidiar or any combination thereof for the payment of money with respect to
which an aggregate amount in excess of $40,000,00 is not covered by insurance, and the same
shall remain undischarged for a period of 30 consecutive days during which execution shall not
be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon
assets or properties of the Borrower or any Significant Subsidiar to enforce any such judgment;
G) a Reportable Event or Reportable Events, or a failure to make a required
installment or other payment (within the meaning of Section 430(k)(l) of the Code), shal have
occurred 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 exceeding
$25,00,000, or the value of the assets of any Plan is less than 80% of the "funding target" (as
defined in Code Section 430( d)( 1)) of such Plan as of the last annual valuation date applicable
thereto, and within 30 days after the reporting of any such Reportble Event to the
Administrative Agent or afer the receipt by the Administrative Agent of a statement required
54
402692572v2
pursuant to Section 5.06, the Administrative Agent shall have notified the Borrower in writing
that (i) the Required Lenders have made a determnation that, on the basis of such Reportble
Event or Reportable Events, such failure to make a required instalent or other payment or the
fact that the value of the assets of a Plan is less than 80% of the "funding target" (as defined in
Code Section 430( d)( 1)) of such Plan as of the last anual valuation date applicable thereto, there
are reasonable grounds (A) for the termnation of any such Plan by the PBGC, (B) for the
appointment by the appropriate United States Distrct Court of a trstee to administer 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 trustee shall be appointed by a United States Distrct
Court to administer any such Plan; or the PBGC shall institute proceedings to termnate any such
Plan;
(k) any Loan Document, at any time afer its execution and delivery and for
any reason, shall cease to be in full force and effect, or is declared by a court of competent
jurisdiction to be null and void, invalid or unenforceable in any respect, or the Borrower denies
that it has any or further liabilty or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document; provided, however, that the foregoing shall not apply
to the First Mortgage Bond, the First Mortgage, the Supplemental Indenture or the Bond
Delivery Agreement at any time when the Borrower's obligations under this Agreement are not
secured by the First Mortgage pursuant to the Borrower's exercise of its rights under Section
8.01;
(I) a Change in Control shall occur;
(m) except at any time when the Borrower's obligations under this Agreement
are not secured by the First Mortgage pursuant to the Borrower's exercise of its rights under
Section 8.01, the Lien purported to be created in any substantial portion of the property of the
Borrower purported to be made subject thereto pursuant to the First Mortgage shall at any time
fail to be a valid, perfected, first-priority Lien (subject to Liens permtted to exist by the terms of
the First Mortgage) securing the obligations of the Borrower under the First Mortgage (including
the obligations of the First Mortgage Bond), and such failure shal constitute or have resulted in a
"Completed Default" under the First Mortgage; or
(n) except at any time when the Borrower's obligations under this Agreement
are not secured by the First Mortgage pursuant to the Borrower's exercise of its rights under
Section 8.01, (i) the mortgage title insurance policy referred to in Section 4.02(a)(ix) or any other
mortgage title insurance policy purported to be issued for the benefit of the trustee under the First
Mortgage, at any time after its issuance and for any reason, shall cease to be in full force and
effect or is declared by a court of competent jurisdiction to be null and void, invalid or
unenforceable in any respect, or (ii) the issuer of such policy denies that it has any or further
liabilty or obligation under such policy, or purports to revoke, termnate or rescind such policy;
then, and in every such event (other than an event with respect to the Borrower described in
paragraph (g) or (h) above), and at any time thereafer during the continuance of such event, the
Administrative Agent, at the request of the Required Lenders, shall, by notice to the Borrower,
take any or all of the following actions, at the same or different times: (i) termnate forthwith the
Commtments, (ii) declare the Loans then outstanding to be forthwith due and payable in whole
55
402692572v2
or in par, whereupon (A) the Commtments wil automatically be termnated and (B) the
principal of the Loans so declared to be due and payable, together with accrued interest thereon
and any unpaid accrued Fees and all other liabilties of the Borrower accrued hereunder and
under any other Loan Document, shall become forthwith due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the contrar
notwithstanding, and (iii) except at any time when the Borrower's obligations under this
Agreement are not secured by the First Mortgage pursuant to the Borrower's exercise of its
rights under Section 8.01, deliver to the Borrower notice demanding redemption of the First
Mortgage Bond; and in any event with respect to the Borrower described in paragraph (g) or (h)
above, the Commitments shall automatically termnate, and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other
liabilties of the Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by the Borrower, anything contained
herein or in any other Loan Document to the contrar notwithstading.
ARTICLEVil
RELEASE OF COLLATERAL
Section 8.01 Borrower's Election. If at any time (a) the Senior Debt Rating assigned to
the Borrower's most senior long-term unsecured public Indebtedness (without credit
enhancement) by two nationally recognized credit-rating agencies is equal to or higher than
Lowest Investment Grade, in each case with a stable outlook, and (b) no Default or Event of
Default has occurred and is continuing, then, upon demand by the Borrower, the Administrative
Agent shall return to the Borrower the First Mortgage Bond then held by the Admnistrative
Agent, without recourse, representation or waranty, and shall execute and deliver to the
Borrower such documents of assignment as may be reasonably requested by the Borrower to
termnate the Lien of the Administrative Agent evidenced by such First Mortgage Bond.
Section 8.02 Release upon Commtment Reduction. In connection with any permanent
reduction in the Commitments, including pursuant to Section 2.1O(b), 2.20 or 9.08(a), the
Administrative Agent shall surrender to, or upon the order of, the Borrower the First Mortgage
Bond then held by the Administrative Agent against receipt by the Administrative Agent of a
substitute First Mortgage Bond in an amount equal to the total Commitments after giving effect
to the reduction.
Section 8.03 Release upon Termnation and Repayment. The Admnistrative Agent
shall surrender to, or upon the order of, the Borrower all First Mortgage Bonds then held by it
pursuant hereto at the first time at which the Commtments shall have been terminated and all
amounts owing under this Agreement shall have been paid in fulL.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.01 Appointment and Powers. In order to expedite the varous transactions
contemplated by the Loan Documents, Union Ban is hereby appointed to act as Admnistrative
56
402692572v2
Agent on behalf of the Lenders and the Issuing Bans. Each of the Lenders and the Issuing
Bans hereby irrevocably authorizes and directs the Administrative Agent to take such action on
behalf of such Lender or Issuing Ban under the terms and provisions of the Loan Documents,
and to exercise such powers thereunder as are specifically delegated to or required of the
Administrative Agent by the terms and provisions thereof, together with such powers as are
reasonably incidental thereto. The Administrative Agent is hereby expressly authorized on
behalf of the Lenders and the Issuing Banks, without hereby limiting any implied authority, (a)
to receive on behalf of each of the Lenders and the Issuing Bans any payment of principal of or
interest on the Loans and LC Disbursements outstading hereunder, any reimbursements of LC
Disbursements and all other amounts accrued under the Loan Documents paid to the
Admnistrative Agent, and to distrbute to each Lender and Issuing Bank its proper share of al
payments so received as soon as practicable; (b) to give notice promptly on behalf of each of the
Lenders and the Issuing Bans to the Borrower of any Event of Default of which the
Admnistrative Agent has actual knowledge acquired in connection with its agency hereunder;
and (c) to distribute promptly to each Lender and each Issuing Bank copies of all notices,
agreements and other material as provided for in the Loan Documents as received by such
Administrative Agent.
Section 9.02 Limitation on Liabilty. Neither the Admnistrative Agent nor any of its
directors, officers, employees or agents shall be liable to any Lender or Issuing Ban as such for
any action taken 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 ascertain or to make any inquiry concerning the performance or observance by the
Borrower of any of the terms, conditions, covenants or agreements of the Loan Documents. The
Administrative Agent shall not be responsible to the Lenders or the Issuing Bans for the due
execution, genuineness, validity, enforceabilty or effectiveness of the Loan Documents or any
other instrument to which reference is made therein. The Administrative Agent shall in al cases
be fully protected in acting, or refraining from acting, in accordance with written instructions
signed by the Required Lenders, and, except as otherwise specifically provided herein, such
instructions and any action taken or failure to act pursuant thereto shall be binding on all of the
Lenders and the Issuing Bans. The Admnistrative 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
Administrative Agent nor any of its directors, officers, employees or agents shall have any
responsibilty to the Borrower on account of the failure or delay in performance or breach by any
Lender or Issuing Bank of any of its obligations under the Loan Documents or to any Lender or
Issuing Bank on account of the failure of or delay in performance or breach by any other Lender
or Issuing Ban or the Borrower of any of their respective obligations thereunder or in
connection therewith. The Administrative Agent may execute any of its duties under the Loan
Documents by or through agents or attorneys selected by it using reasonable care and shall be
entitled to advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shal not be responsible for the negligence or misconduct of any agents or
attorneys selected and authorized to act by it with reasonable care unless the damage complained
of directly results from an act or failure to act on the par of the Administrative Agent which
constitutes gross negligence or wilful misconduct. Delegation to an attorney for the
Administrative Agent shall not release the Administrative Agent from its obligation to perform
57
40692572v2
or cause to be performed the delegated duty. The Administrative Agent shall be entitled to
advice of legal counsel selected by it with respect to all matters arsing under the Loan
Documents and shall not be liable for any action taken or suffered in good faith by it in
accordance with the advice of such counseL.
Section 9.03 Other Transactions with Borrower, Etc. The Administrative Agent and its
Affiliates may accept deposits from, lend money to and generaly engage in any kind of business
with the Borrower or any Affliate thereof as if it were not the Administrative Agent. The person
serving as the Administrative Agent shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the Administrative
Agent, and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated or unless
the context otherwise requires, include the person serving as the Administrative Agent when
acting in its individual capacity.
Section 9.04 Reimbursement: Indemnification. Each Lender agrees (a) to reimburse the
Admnistrative Agent in the amount of such Lender's Pro Rata Share of any expenses incurred
for the benefit of the Lenders by the Admnistrative Agent, including reasonable counsel fees
and compensation of agents and employees paid for services rendered on behalf of the Lenders,
to the extent not reimbursed by the Borrower and (b) to indemnify and hold haress the
Administrative Agent and any of its directors, officers, employees or agents, on demand, in the
amount of its Pro Rata Share, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as
the Administrative Agent or any of them in any way relating to or arsing out of the Loan
Documents or any action taken or omitted by it or any of them under the Loan Documents, to the
extent not reimbursed by the Borrower; provided, however, that no Lender shall be liable to the
Administrative Agent for any portion of such liabilties, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or
wilful misconduct of the Administrative Agent or any of its directors, offcers, employees or
agents.
Section 9.05 Absence of Reliance. Each of the Lenders and the Issuing Bans
acknowledges that it has, independently and without reliance upon the Administrative Agent or
any other Lender or Issuing Ban and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each of the Lenders and the Issuing Banks also acknowledges that it wil, independently and
without reliance upon the Administrative Agent or any other Lender or Issuing Bank, and based
on such documents and information as it shall deem appropriate at the time, continue to make its
own decisions in takng or not takng action under or based upon the Loan Documents, any
related agreement or any document furnished thereunder.
Section 9.06 Resignation of Admnistrative Agent. The Administrative Agent may at
any time give notice of its resignation to the Lenders, the Issuing Bans and the Borrower and
shall promptly give such notice in the event that the Administrative Agent becomes a Defaulting
Lender. Upon receipt of any such notice of resignation, the Required Lenders may, with the
consent of the Borrower (which consent shall not be unreasonably withheld and shal not be
required during an Event of Default), appoint a successor Admnistrative Agent. If no successor
58
402692572v2
Administrative Agent shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Admnistrtive Agent's giving of
notice of resignation, then the retiring Admnistrative Agent may, on behalf of the Lenders and
the Issuing Bans and after consultation with the Lenders, the Issuing Banks and the Borrower,
appoint a successor Administrative Agent. Upon the acceptance by any person of its
appointment as a successor Administrative Agent, such person shal thereupon succeed to and
become vested with all the rights, powers, privileges, duties and obligations of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations as Administrative Agent under the Loan Documents. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of this Artcle IX
shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent.
Section 9.07 Syndication Agent and Co-Documentation Agents. Neither the
Syndication Agent nor any Co-Documentation Agent shall have any rights, powers, obligations,
liabilties, responsibilities or duties under the Loan Document other than those applicable to all
Lenders as such. Without limiting 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 Lender or Issuing Ban. Each of the Lenders and the Issuing Bans
acknowledges that it has not relied, and wil not rely, on any of the persons so identified in
deciding to enter into this Agreement or in tang or not takng action hereunder.
Section 9.08 Removal of Lender.
(a) If a Lender (i) is a Defaulting Lender or (ii) fails to give its consent to any
amendment, waiver or action for which consent of all of the Lenders was required and to which
the Required Lenders consented, such Lender shall, upon notice from the Borrower, execute and
deliver to the Administrative Agent one or more Assignments and Assumptions assigning all of
that Lender's interests, rights and obligations under the Loan Documents to one or more Eligible
Assignees designated by the Borrower, subject to (A) compliance with the provisions of Section
10.04, (B) payment in full of all principal, interest and fees owing to such Lender through the
date of assignment (including any amounts payable pursuant to Section 2.14 but, in the case of a
Defaulting Lender, excluding any amounts payable pursuant to Section 2.14(c) or (d)) and (C)
delivery by such assignee(s) of such appropriate assurances and indemnities (which may include
letters of credit) as such Lender may reasonably require with respect to its paricipation interests
in any Letters of Credit then outstanding; provided, however, that the failure of any such Lender
to execute and deliver to the Administrative Agent such Assignment(s) and Assumption(s) shall
not render such assignment(s) invalid, and the Admnistrative Agent shall record such
assignment(s) in the Register. Alternatively, the Borrower may reduce the total Commtments
(and for this purpose the minimum amounts for Commtment reductions shall not apply) by an
amount equal to that Lender's Commtment and pay and provide to such Lender the amounts,
assurances and indemnities described above and release such Lender from its Commtment;
provided, however, that the Commitment of a Defaulting Lender may not be so reduced so long
as any Default or Event of Default has occurred and is continuing. The Admnistrative Agent
shall distrbute an amended Schedule 2.01 (which shall thereafter be incorporated into this
Agreement) to reflect any new Commitments and Pro Rata Shares.
59
402692572v2
(b) In order to make all Lenders' interests in any outstanding Loans and in
any fees and other amounts due in respect of Letters of Credit ratable in accordance with any
revised Pro Rata Shares after giving effect to the removal of any Lender, the Borrower shall pay
or prepay, if necessar, on the effective date of such removal all outstanding Loans and fees and
other amounts in respect of Letters of Credit and pay, to the extent applicable, any amounts due
under Section 2.14. The Borrower may then borrow Loans from the Lenders in accordance with
their revised Pro Rata Shares.
ARTICLE X
MISCELLANEOUS
Section 10.01 Notices. Notices and other communications provided for herein shall be
in writing and shall be delivered by hand or overnight courier service, mailed or sent by telecopy,
graphic scanning or other telegraphic communications equipment of the sending pary, as
follows:
(a) if to the Borrower, to:
A vista Corporation
1411 East Mission Avenue (99202)
P.O. Box 3727
Spokane, Washington 99220
Attention: Senior Vice President and Chief Financial Officer
Telecopy: 509-495-4361
(b) if to the Administrative Agent for credit matters, to:
Union Ban, N.A.
445 South Figueroa Street, 15th Floor
Los Angeles, California 90071
Attention: Power & Utilties
Telecopy: 213-236-4096
and if to the Administrative Agent for operational matters, to:
Union Bank, N.A.
601 Potrero Grande Drive, Mail Code 4-957-161
Monterey Park, California 91755
Attention: Kevin Chan, Commercial Loan & Agency Services
Telephone: [phone]
Telecopy: 323-656-2855
E-mail: kevin.chan~unionban.com
(c) if to any Lender or Issuing Ban, to it at its address (or telecopy number)
set forth in Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
or Issuing Bank shall have become a pary hereto.
60
40692572v2
All notices and other communications given to any pary hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt if
delivered by hand or overnight courier service or sent by telecopy or other telegraphic
communications equipment of the sender, or on the date five Business Days afer dispatch by
certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed)
to such pary as provided in this Section 10.01 or in accordance with the latest unrevoked
direction from such pary given in accordance with this Section 10.01.
Section 10.02 Survival of Agreement. All covenants, agreements, representations and
waranties, including any indemnities and reimbursement obligations, made by the Borrower in
the Loan Documents and in the certificates or other instruments prepared or delivered in
connection therewith or pursuant thereto shall be considered to have been relied upon by the
Lenders and the Issuing Banks and shall survive the makng of any Loans by the Lenders, the
issuance of any Letters of Credit by the Issuing Bans and the execution and delivery to the
Lenders of any Notes evidencing such Loans, regardless of any investigation made by the
Lenders or the Issuing Banks, or on their behalf, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any Fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commtments have not been terminated.
Section 10.03 Binding Effect. This Agreement shal become effective when it shall have
been executed by the Borrower and the Administrative Agent and when the Admnistrative
Agent shal have received copies hereof which, when taken together, bear the signatures of each
Lender and each Issuing Bank, and this Agreement shall thereafer be binding upon and inure to
the benefit of the Borrower, the Administrative Agent, each Lender and each Issuing Ban and
their respective successors and permitted assigns. Whenever in this Agreement any of the paries
hereto is referred to, such reference shall be deemed to include the successors and permtted
assigns of such pary; and all covenants, promises and agreements by or on behalf of the
Borrower, the Administrative Agent, any Lender or any Issuing Ban that are contained in this
Agreement shall bind and inure to the benefit of each such person's successors and permtted
assigns.
Section 10.04 Successors and Assigns.
(a) Subject to Section 6.03, the Borrower may not assign or delegate any of its
rights or duties under any of the Loan Documents without the prior written consent of each of the
Lenders and the Issuing Bans.
(b) Each Lender (including the Admnistrative Agent and any Issuing Bank
when acting as a Lender) may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under the Loan Documents (including all or a portion of its
Commtment and the same porton of the applicable Loan or Loans at the time owing to it);
provided, however, that (i) except in the case of an assignment to a Lender or an Affiliate of a
Lender, the Borrower and the Administrative Agent must give their prior written consent to such
assignment (which consents shall not be unreasonably withheld), provided that the consent of the
Borrower shall not be required if an Event of Default shall exist, (ii) in the case of an assignment
to a person other than a Lender of all or a portion of a Lender's Commtment or its obligation in
61
402692572v2
respect of its LC Exposure, the Issuing Banks must give their prior written consent to such
assignment (which consents shall not be unreasonably withheld), (ii) no assignee of any Lender
shall be entitled to receive any greater payment or protection under Section 2.12, 2.13(a) or 2.18
than such Lender would have been entitled to receive with respect to the rights assigned or
otherwise transferred unless such assignment or transfer shall have been made at a time when the
circumstances giving rise to such greater payment did not exist, (iv) each such assignent shall
be of a constat, and not a varng, percentage of all the assigning Lender's rights and
obligations under this Agreement, (v) the amount of the Commtment of the assigning Lender
subject to each such assignment (determned as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 (or, if less, the total amount of such Lender's Commtment), (vi) the paries to each
such assignment shall execute and deliver to the Administrative Agent an Assignment and
Assumption and a processing and recordation fee of $3,500 and (vii) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Upon
acceptance and recording pursuant to paragraph (d) of this Section 10.04, from and after the
effective date specified in each Assignment and Assumption, which effective date shal be at
least five Business Days afer the execution thereof, (A) the assignee thereunder shall be a pary
hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under the Loan Documents and (B) the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignent and Assumption, be
released from its obligations under the Loan Documents (and, in the case of an Assignment and
Assumption covering all or the remaining portion of an assigning Lender's rights and obligations
under the Loan Documents, such Lender shall cease to be a pary hereto but shall continue to be
entitled to the benefits of Sections 2.12, 2.14, 2.18 and 10.05, as well as to any Fees accrued for
its account and not yet paid).
(c) The Administrative Agent shal maintan a copy of each Assignent and
Assumption delivered to it, including the recordation of the names and addresses of the Lenders,
and the Commitment of, and principal amount of the Loans and LC Disbursements owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The Administrative
Agent, the Lenders and the Issuing Bans may treat each person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for al purposes of the Loan
Documents. The Register shall be available for inspection by the Borrower, any Lender and any
Issuing Ban at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an Eligible Assignee, an Admnistrtive Questionnaire
completed in respet of the Eligible Assignee (unless the Eligible Assignee shall aleady be a
Lender hereunder), the processing and recordation fee referred to in paragraph (b) above and, to
the extent required, the written consent of the Borrower, the Administrative Agent and the
Issuing Bans to such assignment, the Admnistrative Agent shall (i) accept such Assignment
and Assumption, (ii) record the information contained therein in the Register and (iii) give
prompt notice thereof to the Borrower and the Issuing Bans. Upon the request of the assignee,
the Borrower, at its own expense, shall execute and deliver to the Administrative Agent, a new
Note or Notes to the order of such assignee in a principal amount equal to the applicable
Commtment assumed by it pursuant to such Assignment and Assumption and, if the assigning
Lender has retained a Commtment, upon the request of the assignng Lender, the Borrower shall
62
402692572v2
execute and deliver a new Note to the order of such assigning Lender in a principal amount equal
to the applicable Commtment retained by it. Canceled Notes shall be returned to the Borrower.
(e) Each Lender may, without the consent of the Borrower, the Administrative
Agent or any Issuing Bank, sell paricipations to one or more bans or other entities in al or a
portion of its rights and obligations under the Loan Documents (including all or a portion of its
Commtment and the Loans owing to it and any Notes held by it); provided, however, that
(i) such Lender's obligations under the Loan Documents shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other paries hereto for the performance of such
obligations, (iii) the paricipating bans or other entities shall be entitled to the benefit of the cost
protection provisions contained in Sections 2.12, 2.14 and 2.18 to the same extent as if they were
Lenders (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 paricipation would have been entited had it not sold
such interest) and (iv) the Borrower, the Administrative Agent, the other Lenders and the Issuing
Banks shall continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents, and such Lender shall retain the sole
right to enforce the obligations of the Borrower relating to the Loans and to approve any
amendment, modification or waiver of any provision of the Loan Documents (other than
amendments, modifications or waivers (A) decreasing any Fees or the amount of principal of or
the rate at which interest is payable on any Loans or LC Disbursements, (B) extending any
scheduled date for the payment of Fees or principal of or interest on any Loans or LC
Disbursements, (C) extending the expiration date of the Commtments, (D) extending the
expiration date of any Letter of Credit to a date after the expiration date of the Commtments or
(E) releasing the First Mortgage Bond or releasing al or substatially all of the collateral
therefor, in each such case except pursuant to Aricle VIII).
(f) Any Lender or paricipant may, in connection with any assignment or
paricipation or proposed assignment or parcipation pursuant to this Section 10.04, disclose to
the assignee or paricipant or proposed assignee or paricipant any information relating to the
Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any
such disclosure of information designated by the Borrower as confidential, each such assignee or
paricipant or proposed assignee or paricipant shall execute an agreement whereby such assignee
or paricipant shall agree (subject to customar exceptions) to preserve the confidentiality of
such confidential information.
(g) Notwithstanding anyting to the contrar contained herein, any Lender (a
"Granting Lender'~ may grant to a special-purpose funding vehicle (an "SPC'~ the option to
fund all or any par of any Loan that such Granting Lender would otherwise be obligated to fund
pursuant to this Agreement; provided that (i) nothing herein shal constitute a commitment by
any SPC to fund any Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails
to fund all or any par of such Loan, the Granting Lender shall be obligated to fund such Loan
pursuant to the terms hereof. The funding of a Loan by an SPC hereunder shall utilze the
Commtment of the Granting Lender to the same extent as if such Loan were funded by such
Granting Lender. Each pary hereto hereby agrees that no SPC shall be liable for any indemnty
or payment under the Loan Documents for which a Lender would otherwise be liable for so long
as, and to the extent, the Granting Lender provides such indemnity or makes such payment.
Notwithstanding anything to the contrar contained in this Agreement, any SPC may disclose on
63
402692572v2
a confidential basis any non-public information relating to its funding of Loans to any rating
agency, commercial paper dealer or provider of any surety or guarantee to such SPC. This
paragraph may not be amended without the prior written consent of each Granting Lender, all or
any par of whose Loans are being funded by an SPC at the time of such amendment.
(h) Any Lender may at any time assign for security purposes all or any
portion of its rights under the Loan Documents to a Federal Reserve Ban; provided that no such
assignment shall release a Lender from any of its obligations thereunder.
Section 10.05 Expenses: Indemnity. Damage Waiver.
(a) The Borrower agrees to pay all reasonable out-of-pocket expenses
(including the reasonable fees, charges and disbursements of internal or external legal counsel)
(i) incurred by the Administrative Agent in connection with the preparation of the Loan
Documents, in connection with any amendments, modifications or waivers of the provisions
thereof (whether or not the transactions thereby contemplated shall be consummated) or in
connection with the use of DXSyndicate, IntraLinks or any similar service in relation to this
Agreement, (ii) incurred by any Issuing Ban in connection with the issuance, renewal, extension
or other amendment of any Letter of Credit or any demand for payment thereunder or (ii)
incurred by the Administrative Agent, any Lender or any Issuing Ban in connection with the
enforcement or protection of its rights in connection with any Loan Document, any Loan or any
Letter of Credit or paricipation therein.
(b) The Borrower agrees that it shall indemnify the Administrative Agent, the
Lenders and the Issuing Banks against, and hold them haress from, any documentar taxes,
assessments or charges made by any Governmental Authority by reason of the execution and
delivery of this Agreement or any of the other Loan Documents.
(c) The Borrower agrees to indemnify the Administrative Agent, each Lender
and each Issuing Ban and each of their respective directors, officers, employees and agents
(each such person being called an "Indemnitee") against, and to hold each Indemnitee haress
from, any and al losses, claims, damages, liabilties and related expenses, including reasonable
counsel fees, charges and disbursements, incurred by or asserted against any Indemnitee arsing
out of, in any way connected with, or as a result of, (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrment contemplated thereby,
the performance by the paries thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated thereby, (ii) the use
of the proceeds of the Loans and of the Letters of Credit (including any refusal by an Issuing
Bank to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit) or
(iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or
not any Indemnitee is a pary thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilties or related
expenses are determned by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such Indemnitee.
64
40292572v2
(d) To the fullest extent permtted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of liabilty, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arsing out of, in connection with or as a result of this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby, the transactions contemplated hereby or
thereby, any Loan or Letter of Credit or the use of the proceeds thereof; provided that such
waiver shal not, as to any Indemnitee, apply to special, indirect or consequential damages to the
extent resulting from, or punitive damages awarded on account of, conduct by such Indemnitee
that is determined by a court of competent jurisdiction by final and nonappealable judgment to
have constituted gross negligence or wilful misconduct by such Indemnitee.
(e) The provisions of this Section 10.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the consummation of
the transactions contemplated hereby, the repayment of any of the Loans, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, any Lender or any Issuing Bank.
All amounts due under this Section 10.05 shall be payable on written demand therefor.
Section 10.06 Right of Setoff. If an Event of Default shall have occurred and be
continuing and the Loans shall have been accelerated as set fort in Aricle VII, each of the
Lenders and the Issuing Bans is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other indebtedness at any time owing by
such Lender or Issuing Bank (or person Controllng such Lender or Issuing Ban) to or for the
credit or the account of the Borrower against any of and all the obligations of the Borrower now
or hereafter existing under this Agreement and other Loan Documents held by such Lender or
Issuing Ban, irrespective of whether or not such Lender or Issuing Bank shall have made any
demand under this Agreement or any other Loan Document and although such obligations of the
Borrower are owed to a branch or office of such Lender or Issuing Ban different from the
branch or office holding such deposit or obligated on such indebtedness. The rights of each
Lender and each Issuing Ban under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender or Issuing Bank may have. Any Lender or
Issuing Bank, as the case may be, shall promptly notify the Borrower after exercising its rights
under this Section.
Section 10.07 Applicable Law. THIS AGREEMENT AN THE OTHER LOAN
DOCUMENTS, OTHER THAN THE FIRST MORTGAGE BOND, THE FIST MORTGAGE
AND THE SUPPLEMENTAL INENTURE, SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERND BY THE LAWS OF THE STATE OF NEW YORK.
Section 10.08 Waivers; Amendment.
(a) No failure or delay of the Administrative Agent, any Lender or any
Issuing Ban in exercising any power or right under the Loan Documents shal operate as a
waiver thereof, nor shal any single or parial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power, preclude any other or
furter exercise thereof or the exercise of any other right or power. The rights and remedies of
65
402692572v2
the Administrative Agent, the Lenders and the Issuing Bans hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies which they would
otherwise have. No waiver of any provision of this Agreement or any other Loan Document or
consent to any deparure by the Borrower therefrom shall in any event be effective unless the
same shall be permtted by paragraph (b) below, and then such waiver or consent shal be
effective only in the specific instance and for the purpose for which given. No notice or demand
on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances.
(b) Neither any Loan Document nor any provision thereof (excluding letter of
credit applications, which may be waived, amended or otherwise modified by agreement of the
Borrower and the applicable Issuing Ban) may be waived, amended or otherwise modified
except pursuant to an agreement or agreements in writing entered into by the Borrower and the
Required Lenders; provided, however, that no such agreement shall (i) without the consent of the
applicable Lender, (A) decrease the principal of or the rate of interest on such Lender's Loans or
the Fees payable to such Lender, (B) extend the date for any scheduled payment of principal of
or interest on such Lender's Loans or the Fees payable to such Lender, or (C) increase the
amount or extend the expiration date of such Lender's Commitment, or (ii) without the consent
of each Lender, (A) decrease the principal of or the rate of interest on any LC Disbursement, (B)
extend the date for any scheduled payment of principal of or interest on any LC Disbursement,
(C) extend the expiration date of any Letter of Credit after the Expiration Date has occurred, (D)
release the First Mortgage Bond or release all or substatially all of the collateral therefor, in
each such case except pursuant to Article Vil, or (E) amend or modify the provisions of Section
2.15, the provisions of this Section, the definition of "Required Lenders" or any other provision
requiring the consent or agreement of each of the Lenders; provided furter that no such
agreement shall amend, modify or otherwise affect the rights or duties of the Administrative
Agent or any Issuing Bank under the Loan Documents without the prior written consent of the
Admnistrative Agent or such Issuing Bank, as the case may be. Each Lender and each holder of
a Note shall be bound by any waiver, amendment or modification authorized by this Section
regardless of whether its Note shall have been marked to make reference thereto, and any
consent by any Lender or holder of a Note pursuant to this Section shall bind any person
subsequently acquirng a Note from it, whether or not such Note shall have been so marked.
Section 10.09 Interest Rate Limitation. Notwithstanding anything herein or in any Notes
to the 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 otherwise contracted for,
charged, received, taken or reserved by any Lender, shall exceed the maximum lawful rate (the
"Maximum Rate'') which may be contracted for, charged, taken, received or reserved by such
Lender in accordance with applicable law, the rate of interest payable under any Note held by
such Lender, together with all Charges payable to such Lender, shall be limited to the Maximum
Rate.
Section 10.10 Entire Agreement. Each Loan Document constitutes the entire contract
between or among the pares relative to the subject matter thereof, and any previous agreement
between or among the paries with respect to the subject matter thereof is superseded by such
Loan Document. Nothing in this Agreement or in the other Loan Documents, expressed or
66
402692572v2
implied, is intended to confer upon any pary other than the pares hereto and thereto any rights,
remedies, obligations or liabilties under or by reason of this Agreement or the other Loan
Documents.
Section 10.11 Waiver of Jury Trial. Each pary hereto hereby waives, to the fullest
extent permtted by applicable law, any right it may have to a tral by jury in respect of any
litigation directly or indirectly arsing out of, under or in connection with this Agreement or any
of the other Loan Documents. Each pary hereto (a) certifies that no representative, agent or
attorney of any other pary has represented, expressly or otherwise, that such other pary would
not, in the event of litigation, seek to enforce the foregoing waiver and (b) acknowledges that it
and the other paries hereto have been induced to enter into this Agreement and the other Loan
Documents, as applicable, by, among other things, the mutual waivers and certifications in ths
Section 10.11.
Section 10.12 Severabilty. In the event anyone or more of the provisions contained in
this Agreement or in any other Loan Document should be held invalid, ilegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby. The paries shall
endeavor in good-faith negotiations to replace the invald, ilegal or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible to that of the
invalid, ilegal or unenforceable provisions.
Section 10.13 Counter.ars. This Agreement may be executed in two or more
counterpars, 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 10.14 Headings. Aricle and Section headings and the Table of Contents used
herein are for convenience of reference only, are not par of this Agreement and are not to affect
the construction of, or to be taen into consideration in interpreting, this Agreement.
Section 10.15 Jurisdiction; Consent to Service of Process.
(a) The Borrower hereby irevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of
the United States of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arsing out of or relating to this Agreement or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the paries hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determned in such New York State or, to the extent permtted by
law, in such Federal court. Each of the paries hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, any Lender or any Issuing Ban may otherwise have to bring
any action or proceeding relating to this Agreement or the other Loan Documents against the
Borrower or its properties in the courts of any jurisdiction.
67
40692572v2
(b) The Borrower hereby irrevocably and unconditionaly waives, to the
fullest extent it may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arsing out of or relating to this
Agreement or the other Loan Documents in any New York State or Federal court. Each of the
pares hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Each pary to this Agreement irevocably consents to service of process in
the manner provided for notices in Section 10.01. Nothing in this Agreement wil affect the right
of any pary to this Agreement to serve process in any other manner permitted by law.
Section 10.16 USA Patriot Act Notification. Each Lender and each Issuing Ban hereby
notifies the Borrower that, pursuant to the requirements of the USA Act (Title il of Pub. L. 107-
56 (signed into law October 26, 2001) (the "Act"), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name and address of the
Borrower and other information that wil allow such Lender or Issuing Bank to identify the
Borrower in accordance with the Act. The Borrower agrees to cooperate wìth each Lender and
each Issuing Bank and to provide true, accurate and complete information to such Lender or
Issuing Ban in response to any such request.
(Signature pages follow.)
68
402692572v2
WITNESS the due execution hereof as of the date first above written.
AVISTA CORPORATION
By: lsI Mark T. Thies
Name: Mark T. Thies
Title: Senior Vice President and
Chief Financial Officer
402692572v2
UNION BANK, N.A., as Administrative Agent, an
Issuing Ban and a Lender
By: lsI Bryan P. Read
Name: Bryan P. Read
Title: Vice President
402692572v2
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as an Issuing Ban and a Lender
By: lsI Tom Beil
Name: Tom Beil
Title: Vice President
402692572v2
THE BANK OF NEW YORK MELLON,
as a Lender
By: lsI Mark W. Rogers
Name: Mark W. Rogers
Title: Vice President
402692572v2
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: lsI Keven D. Smith
Name: Keven D. Smith
Title: Senior Vice President
402692572v2
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: lsI Holland Wiliams
Name: Holland Willams
Title: Assistant Vice President and
Portfolio Manager
402692572v2
BANK OF AMRICA, N.A., as a Lender
By: lsI James J. Teichman
Name: James J. Teichman
Title: Senior Vice President
402692572v2
JPMORGAN CHASE BANK, N.A., as a Lender
By: lsI Nancy R. Barig
Name: Nancy R. Barig
Title: Credit Executive
402692572v2
UBS LOAN FINANCE LLC, as a Lender
By: lsI Ira R. Otsa
Name: Ira R. Otsa
Title: Associate Director
By: lsI Mar E. Evans
Name: Mar E. Evans
Title: Associate Director
402692572v2
CIBC INC., as a Lender
By: lsI Robert Casey
Name: Robert Casey
Title: Executive Director
By: lsI Eoin Roche
Name: Eoin Roche
Title: Executive Director
402692572v2
CREDIT SUISSE AG, CAYMAN
ISLANDS BRACH, as a Lender
By: lsI Bil O'Daly
Name: Bil O'Daly
Title: Dirctor
By: lsI Sanja Gazahi
Name: Sanja Gazahi
Title: Associate
402692572v2
SCOTIABANC INC., as a Lender
By: lsI J.F. Todd
Name: J.F. Todd
Title: Managing Director
402692572v2
BANK HAPOALIM B.M., as a Lender
By: lsI Helen H. Gateson
Name: Helen H. Gateson
Title: Vice President
By: lsI Frederic S. Becker
Name: Frederic S. Becker
Title: Senior Vice President
402692572v2
BANR BANK, as a Lender
By: lsI TJ Brill
Name: TJ Brill
Title: Vice President
402692572v2
COMERICA BAN, as a Lender
By: lsI Steve Clear
Name: Steve Clear
Title: Vice President
402692572v2
FIST COMMERCIAL BANK LTD.,
NEW YORK BRACH, as a Lender
By: lsI Jason Lee
Name: Jason Lee
Title: Vice President and General Manager
402692572v2
EXHIBIT A
(FORMOFl
NOTE
$,20_
FOR VALUE RECEIVD, the undersigned, AVISTA CORPORATION, a Washington
corporation (the "Borrower"), hereby promises to pay to the order of
(the "Lender"), at the office of Union Ban, N.A., as admnistrative agent (the "Administrative
Agent"), at 445 South Figueroa Street, Los Angeles, California, on the Expiration Date, as
defined in the Credit Agreement dated as of Februar 11, 2011 among the Borrower, the Lenders
listed in Schedule 2.01 thereto, The Ban of New York Mellon, KeyBank National Association
and U.S. Ban National Association, as Co-Documentation Agents, Wells Fargo Bank, National
Association, as Syndication Agent and an Issuing Ban, and Union Ban, N.A., as
Admnistrative Agent and an Issuing Ban (the "Credit Agreement"), the aggregate unpaid
principal amount of all Loans (as defined in the Credit Agreement) of the Lender under the
Credit Agreement, in lawful money of the United States of America in immediately available
funds, and to pay interest from the date hereof on the principal amount hereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum and payable on the dates
provided in the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue principal 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
kind whatsoever. The nonexercise by the holder of any of its rights hereunder in any paricular
instance shall not constitute a waiver thereof in that or any subsequent instance.
All Loans evidenced by this Note and all payments and prepayments of the principal
hereof and interest hereon and the respective dates and maturity dates thereof shall be endorsed
by the holder hereof on the schedule attached hereto and made a par hereof or on a continuation
thereof which shall be attached hereto and made a par hereof, or otherwise recorded by such
holder in its internal records; provided, however, that the failure of the holder hereof to make
such a notation or any error in such a notation shall not affect the obligations of the Borrower
under this Note.
This Note is one of the Notes referred to in the Credit Agreement, which, among other
things, contans provisions for the acceleration of the maturity hereof upon the happening of
certain events, for optional and mandatory prepayment of the principal hereof prior to the
maturity hereof and for the amendment or waiver of certain provisions of the Credit Agreement,
402692572v2
all upon the terms and conditions therein specified. This Note shal be constred in accordance
with and governed by the laws of the State of New York and any applicable laws of the United
States of America.
AVISTA CORPORATION
By:
Name:
Title:
402692572v2
Date
40692572v2
Amount
and
Ty of Lo
Loans and Payments
Maturty
Date
Payments of
Prncipa Interest
Unpaid Prcipal
Balce of Note
Name of Peron
Makg Notaon
EXHIBITB
(FORM OF)
ASSIGNMENT AN ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is dated as of the
Effective Date set forth below and is entered into by and between (Insert name of Assignor) (the
"Assignor") and (Insert name of Assignee) (the "Assignee"). Capitalzed terms used but not
defined herein shall have the meanngs given to them in the Credit Agreement identified below
(as amended, the "Credit Agreement"). The Standard Terms and Conditions set forth in Annex
1 attached hereto are hereby agreed to and incorporated herein by reference and made a par of
this Assignent and Assumption as if set forth herein in fulL.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irevocably purchases and assumes from the Assignor,
subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement,
as of the Effective Date inserted by the Administrative Agent as contemplated below, (i) al of
the Assignor's rights and obligations in its capacity as a Lender under the Credit Agreement. and
any other documents or instrments delivered pursuant thereto to the extent related to the
assigned amount and percentage interest identified below of the respective facilties identified
below (including without limitation any letters of credit included in such facilties) and (ii) to the
extent permtted to be assigned under applicable law, all claims, suits, causes of action and any
other rights of the Assignor (in its capacity as a Lender) against any person, whether known or
unkown, arsing under or in connection with the Credit Agreement, any other documents or
instrments delivered pursuant 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 claims, tort
claims, malpractice claims, 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 assignent are without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption, without
representation or waranty by the Assignor.
1. Assignor:
2. Assignee:
(an Affiliate of (identif existing Lender))!
3.Borrower:A vista Corporation
4. Admnistrative Agent: Union Ban, N.A.
5. Credit Agreement: Credit Agreement, dated as of Februar 11, 2011, among Avista
Corporation, the Lenders listed in Schedule 2.01 thereto, The Ban
of New York Mellon, KeyBan National Association and U.S.
i Include if applicable.
402692572v2
Ban National Association, as Co-Documentation Agents, Wells
Fargo Ban, National Association, as Syndication Agent and an
Issuing Ban, and Union Ban, N.A., as Administrative Agent and
an Issuing Ban
6. Assigned Interest:
Facility Assigned:l Aggregate Amount of Amount of Percentage' Assigned
(Commitments /(Commtment /of (Commtments /
Revolving Credit Revolving Credit Revolving Credit
Exposures)3 for all Exposure)3 Assigned4 Exposures) 3 for all
Lenders4 Lenders
$$%
$$%
$$%
(7.Trade Date:,20_)6
,20_ (TO BE INSERTED BY ADMINISTRATIVE AGENTEffective Date:
AN WHICH SHAL BE THE EFFCTIVE DATE OF RECORDATION OF TRANSFER IN
THE REGISTER THEREFOR.)
The terms set fort in this Assignent and Assumption are hereby agreed to:
ASSIGNOR
(NAME OF ASSIGNOR)
By:
Name:
Title:
2 Fill in the approprate termnology for the typs of facilities under the Creit Agrment that ar being assigned under the Assignent (e.g.,
"Revolving Credit Agrment")
3 Use ''Revolving Creit Exposur(sl" if Commtments have ben termated; otherse, use ''Commtment(s).''
4 Amount to be adjusted by the counterpares to tae into account any payments or prepayments mae between the Trade Date and the
Effective Date.
S Set fort, to at leat 9 decimas, as a peentage of the Commtments I Revolving Creit Exposures of al Ban therunder.
6 To be completed if the Assignor and the Assignee intend that the mimum assignent amount is to be detered as of the Trae Date.
402692572v2
ASSIGNEE
(NAME OF ASSIGNEE)
By:
Name:
Title:
(Consented to andf Accepted:
UNION BANK, N.A., as Admnistrative Agent
By:
Name:
Title:
(Consented to:
A VISTA CORPORATION
By:
Name:
Title:
(Consented to:
UNION BANK, N.A., as an Issuing Bank
By:
Name:
Title:
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as an Issuing Ban
By:
Name:
Title:
7 To be included if such consent is requi by the term of the Creit Agrment.
402692572v2
, as an Issuing Bank
By:
Name:
Title:
402692572v2
f
ANX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Waranties.
1.1 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 (ii) it has full power and authority, and has taen
all action necessar, to execute and deliver this Assignment and Assumption and to consummate
the transactions contemplated hereby; and (b) assumes no responsibilty with respect to (i) any
statements, waranties or representations made in or in connection with the Credit Agreement or
any other Loan Document, (ii) the execution, legalty, valdity, enforceabilty, genuineness,
suffciency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiares or Affliates or any other person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiares or Affiliates 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 is an
Eligible Assignee, (ii) it has full power and authority, and has taken all action necessar, to
execute and deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) from and after
the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) 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 information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest
on the basis of which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Non-U.S. Person (as defined
in Section 2.18(g) of the Credit Agreement), attched to the Assignment and Assumption 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, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to make its own
credit decisions in takng or not takng action under the Loan Documents, and (ii) it wil perform
in accordance with their terms all of the obligations which by the terms of the Loan Documents
are required to be performed by it as a Lender; and (c) effective on the Effective Date, appoints
and authorizes the Administrative Agent to take such action as Administrative Agent on its
behalf and to exercise such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are reasonably
incidental thereto.
2. Payments. From and after the Effective Date, the Administrative Agent shal
make all payments in respet of the Assigned Inrest (including payments of principal, interest,
402692572v2
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 afer the Effective
Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the paries hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterpars, which together
shall constitute one instrment. Delivery of an executed counterpar of a signature page of ths
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpar of this Assignment and Assumption. This Assignment and Assumption shal be
governed by, and construed in accordance with, the law of the State of New York.
402692572v2
EXHIBITC
(FORM OF)
ADMINISTRATIVE QUESTIONNAIRE
ACCOUNT: A vista Corporation
FACILITY: Revolving Credit Facility
LEGAL NAME OF LENDER:
Operations Contact
(DrawslRepaymentslFunding Matters)
Name
Title
Street Address
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:
40292572v2
EXHIBITD
(FORM OF)
CO~TMENT INCREASE SUPPLEMENT
THIS COMMITMENT INCREASE SUPPLEMENT is made and dated as of
, 20_, by and among (ADDITIONAL COMMITMENT LENDER) (the
"Additnal Commitent Lender"), AVISTA CORPORATION, a Washington corporation (the
"Borrower"), and UNION BANK, N.A., as Administrative Agent under the Credit Agreement,
dated as of Februar 11,2011, among the Borrower, the Lenders listed in Schedule 2.01 thereto,
The Bank of New York Mellon, KeyBan National Association and U.S. Ban National
Association, as Co-Documentation Agents, Wells Fargo Bank, National Association, as
Syndication Agent and an Issuing Bank, and Union Ban, N.A., as Administrative Agent and an
Issuing Bank (as amended, modified or supplemented from time to time, the "Credit
Agreement"). Terms used and not otherwise defined herein are used herein with the meanings
ascribed thereto in the Credit Agreement.
WHEREAS, pursuant to Section 2.10(c) of the Credit Agreement, the Borrower desires
to have the aggregate amount of the Commtments increased; and
WHEREAS, the Additional Commtment Lender is wiling to (become an additional
Lender) (increase its Commtment) ;
NOW, THEREFORE, the paries hereto agree as follows:
1. Upon the effectiveness of this Commitment Increase Supplement, (the Additional
Commitment Lender shall be a pary to the Credit Agreement and shall be entitled to al of the
rights, and be subject to all of the obligations, of a Lender under the Credit Agreement)l (the
Commitment of the Additional Commtment Lender shall be increased from $ to
$ .)2 (The initial amount of the Additional Commitment Lender's Commitment
shall be $ .)1
2. The Additional Commtment Lender acknowledges, and agrees to comply with,
its obligation under Section 2.1 O( c) of the Credit Agreement to purchase assignments of Loans,
unreimbursed LC Disbursements and paricipations in Letters of Credit from the other Lenders
on the effective date hereof.
3. This Commtment Increase Supplement shall become effective upon the
execution and delivery hereof by the Additional Commitment Lender, the Borrower and the
Administrative Agent.
4. This Commtment Increase Supplement may be executed in any number of
counterpars and by the different pares hereto on separate counterpars, each of which when so
executed and delivered shal be an original, but all of which shall together constitute one and the
same instrument.
5. This Commtment Increase Supplement shal be constred in accordance with and
governed by the law of the State of New York.
402692572v2
IN WITNESS WHEREOF, the paries hereto have caused this Commitment Increase
Supplement to be executed as of the day and year first written above.
(ADDITIONAL COMMITENT LENDER)
By:
Name:
Title:
AVISTA CORPORATION
By:
Name:
Title:
UNION BANK, N.A., as Admnistrative
Agent and an Issuing Ban
By:
Name:
Title:
Consented to:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as an Issuing Ban
By:
Name:
Title:
, as an Issuing Bank
By:
Name:
Title:
40692572v2
EXHIBITE
(FORM OF)
COMMITMENT EXTENSION SUPPLEMENT
THIS COMMITMENT EXTENSION SUPPLEMENT is made and dated as of, 20_ by and among (the "Additonal
Commitment Lender"), AVISTA CORPORATION, a Washington corporation (the
"Borrower"), and UNION BANK, N.A., as Administrative Agent under the Credit Agreement,
dated as of Februar 11, 2011, among the Borrower, the Lenders listed in Schedule 2.01 thereto,
The Ban of New York Mellon, KeyBan National Association and U.S. Bank National
Association, as Co-Documentation Agents, Wells Fargo Ban, National Association, as
Syndication Agent and an Issuing Bank, and Union Bank, N.A., as Administrative Agent and an
Issuing Ban (as amended, modified or supplemented from time to time, the "Credit
Agreement"). Terms used and not otherwise defined herein are used herein with the meanings
ascribed thereto in the Credit Agreement.
WHEREAS, pursuant to Section 2.20(e) of the Credit Agreement, the Borrower desires
to have an aggregate amount of Commitments up to the aggregate amount of the Existing
Commtments extended; and
WHEREAS, the Additional Commtment Lender is wiling to (become an additional
Lender)l (increase its Commtment)2;
NOW, THEREFORE, the paries hereto agree as follows:
1. Upon the effectiveness of this Commitment Extension Supplement, (the
Additional Commtment Lender shall be a pary to the Credit Agreement and shall be entitled to
all of the rights, and be subject to all of the obligations, of a Lender under the Credit
Agreement)l (the Commtment of the Additional Commitment Lender shal be increased from
$ to $ .)2 (The initial amount of the Additional Commtment
Lender's Commtment shall be $ .)1
2. The Additional Commtment Lender acknowledges, and agrees to comply with,
its obligation under Section 2.20( e) of the Credit Agreement to purchase assignments of Loans,
unreimbursed LC Disbursements and paricipations in Letters of Credit from the other Lenders
on the effective date hereof.
3. This Commitment Extension Supplement shall become effective upon the
execution and delivery hereof by the Additional Commtment Lender, the Borrower and the
Administrative Agent.
4. This Commtment Extension Supplement may be executed in any number of
counterpars and by the different paries hereto on separate counterpars, each of which when so
1 Include if Additional Commtment Lender is not an existing Lender.
2 Include if Additional Commtment Lender is an existing Lender.
402692572v2
executed and delivered shall be an original, but all of which shall together constitute one and the
same instrument.
5. This Commtment Extension Supplement shall be construed in accordance with
and governed by the law of the State of New York.
IN WITNESS WHREOF, the paries hereto have caused this Commtment Extension
Supplement to be executed as of the day and year first written above.
(ADDITIONAL COMMITMENT LENDER)
By:
Name:
Title:
AVISTA CORPORATION
By:
Name:
Title:
UNION BANK, N.A., as Admnistrative
Agent and an Issuing Ban
By:
Name:
Title:
Consented to:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as an Issuing Bank
By:
Name:
Title:
, as an Issuing Ban
By:
Name:
Title:
402692572v2
SCHEDULE 2.01
Names, Commtments and Addresses of Initial Lenders
Lender Commtment
Union Ban, N.A.$50,000,00
445 South Figueroa Street
Los Angeles, CA 90071
Attention: Bryan Read
Telecopy: 213-236-4096
Wells Fargo Ban, National Association $50,00,00
601 West 1st Avenue, Suite 900
Spokane, WA 99201
Attention: Tom Beill Jessy Hummel
Telecopy: 866-917-7929
The Ban of New York Mellon $37,500,000
BNY Mellon Center, Room 360
Pittsburgh, PA 15258-001
Attention: Mark W. Rogers
Telecopy: 412-236-6112
KeyBan National Association $37,500,00
601108th Avenue
Bellevue, W A 98004
Attention: Keven Smith
Telecopy: 425-709-4348
U.S. Bank National Association $37,500,000
101 South Capitol Boulevard
Boise, ID 83712
Attention: Holland Wiliams
Telecopy: 208-383-7574
Bank of America, N.A.$30,00,00
800 5th A venue, Floor 36
W A 1-501-36-06
Seattle, W A 98104
Attention: Mark Crawford
Telecopy: 206-585-8638
40692572v2
JPMorgan Chase Ban, N.A.$30,000,000
10 South Dearborn Street, Floor 9
Chicago, IL 60603
Attention: John Zur
Telecopy: 312-732-1762
UBS Loan Finance LLC $30,00,00
677 Washington Boulevard
Stamford, CT 06901
Attention: Denise Bushee
Telecopy: 203-719-3888
CIBC Inc.$18,750,000
425 Lexington A venue, 4th Floor
New York, NY 10017
Attention: Robert W. Casey, Jr.
Telecopy: 212-856-3612
Credit Suisse AG, Cayman Islands Branch $18,750,00
11 Madison Avenue
New York, NY 10010
Attention: Wiliam O'Daly
Telecopy: 212-743-2254
Scotiabanc Inc.$18,750,000
711 Louisiana Street, Suite 1400
Houston, TX 77002
Attention: Jocelyn Todd
Telecopy: 832-426-60
Ban Hapoalm B.M.$10,312,500
1177 A venue of the Americas
New York, NY 10036-2790
Attention: Helen H. Gateson
Telecopy: 212-782-2382
Banner Ban $10,312,500
802 West Riverside Avenue
Spokane, WA 99201
Attention: TJ Brill
Telecopy: 509-482-5765
402692572v2
Comerica Ban $10,312,500
611 Anton Boulevard, 4th Floor
M/C4462
Costa Mesa, CA 92626
Attention: Steve D. Clear
Telecopy: 714-433-3236
First Commercial Bank Ltd., New York Branch $10,312,500
750 3rd Avenue, 34th Floor
New York, NY 10017
Attention: Jeffrey Yu
Telecopy: 212-599-6133
TOTAL:$400,000,000
40292572v2
SCHEDULE 3.13
Signifcant Subsidiaries
None.
402692572v2
SCHEDULE 4.02(a)(ii)
Required Governmental Approvals
Washington
Order Establishing Compliance with Section 80.08.040 of the Revised Code of Washington,
entered September 29, 2010, in Docket No. UE-101544 of the Washington Utilties and
Transportation Commission.
Oregon
Order No. 10-370, entered September 22, 2010, in fie number UP 4265 from the Public Utilty
Commission of Oregon.
Idaho
Order No. 32096, entered October 15, 2010, in Case No. AVU-U-1O-01 of the Idaho Public
Utilties Commssion.
Montana
Default Order No. 4535, entered July 2, 1979, in Docket No. 6690 of the Public Service
Commission of the State of Montana.
40692572v2
SCHEDULE 6.01
Existing Secured Indebtedness
First Mortgage Bonds Outstanding under Mortgage and Deed of Trust Dated as of June 1, 1939,
as Modified by Supplementa Indentures Thereto
402692572v2
SUPPLEMENTAL DATED AS OF SERIS PRICIPAL PRICIPAL
INDENT AMOUN AMOUN
NO.DESIGNATION ISSUED OUTSTANING
Twenty-Sixth Apri 1, 1993 24 Secured Medum-Term $250,00,000 $43,000,00
Notes, Series A
($250,00,000 authorized)
Th- fourt November 1, 2004 32 5.45% Series due 2019 $90,00,000 $90,00,00
Thirtv- fift December 1, 200 33 Collateral Series 200A $88,850,00 $25,00,00
Th-ninth November 1, 2005 39 6.25% Series due 2035 $100,000,000 $100,00,00
$50,00,00 $50,000,000
Forteth Apri 1, 2006 40 Collatera Series due 2011 $320,00,000 $320,00,00'
Fort-first December 1, 2006 41 5.70% Series due 2037 $150,00,000 $150,00,00
Fort-second Apri 1, 2008 42 5.95% Series due 2018 $250,00,00 $250,000,000
Fort-sixth September 1, 2009 46 5.125% Series due 2022 $250,000,000 $250,00,00
Fort-seventh November 1, 2009 47 Collateral Series 2009 A $75,00,00 $75,00,0001
Fort-eiehth December 1, 2010 48 Collatera Series 2010A $66,700,00 $66,700,000
Fortv-eighth December 1, 2010 49 Collateral Series 2010B $17,00,00 $17,00,00
Fort-nith December 1,2010 50 3.89% Series due 2020 $52,000,000 $52,00,00
Fort-nith December 1, 2010 51 5.55% Series due 2040 $35,00,00 $35,00,000
Fifteth December 1,2010 52 1.68% Series due 2013 $50,00,00 $50,00,00
Aggregate principal amount of First Mortgage Bonds outstading though and including the Fifteth
Supplementa Indentue (but excluding the Fifty-fist Supplementa Indentue) = $1,573,700,000.
1 To be retied in connection with the delivery of $400,000,000 of First Mortgage Bonds, Collateral Series 2011A,
pursuant to the Fifty-fist Supplemental Indenture.
402692572v2