Exhibit 10.2
EXECUTION VERSION
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of December 15, 2022, is entered into by AVISTA CORPORATION, a Washington corporation (the “Borrower”), the financial institutions identified on the signature pages hereof as “Lenders” (the “Lenders”), and KEYBANK NATIONAL ASSOCIATION, as Administrative Agent (in such capacity, the “Administrative Agent”).
Recitals
$100,000,000 and (ii) reduce the notice requirement for SOFR Borrowings from five Business Days to three Business Days. Accordingly, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Lenders and the Administrative Agent hereby agree as set forth below.
SECTION 1. Amendments to Original Credit Agreement. Subject to satisfaction of the conditions precedent set forth in Section 2 of this Amendment, the parties hereto hereby agree that the Original Credit Agreement is amended as set forth below.
“(x) cash collateral (i) in favor of the Administrative Agent, as contemplated by this Agreement, (ii) in favor of the Senior Agent, as contemplated by the MUFG Credit Agreement, and (iii) in favor of MUFG Bank, Ltd. or one or more of its branches or affiliates, as letter of credit issuer, as contemplated by one or more continuing letter of credit agreements in an aggregate principal amount not to exceed $50,000,000.”
SECTION 2. Conditions Precedent. This Amendment shall become effective on the date (the “Effective Date”), not later than December 30, 2022, on which all of the conditions set forth below have been fulfilled.
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(C) that the articles 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 (iv) above, and (D) as to the incumbency and specimen signature of each officer executing this Amendment or any other document delivered in connection therewith on behalf of the Borrower;
SECTION 3. Representations and Warranties. In order to induce the Lenders and the Administrative Agent to enter into this Amendment, the Borrower represents and warrants to them as set forth below.
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qualified by “Material Adverse Effect” or any other materiality qualification, true and correct in all respects) as of such earlier date).
SECTION 4. Reference to and Effect on Loan Documents.
SECTION 5. Execution in Counterparts; Electronic Execution. This Amendment may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Amendment by facsimile or other electronic transmission shall be effective as an original executed counterpart and shall be deemed a representation that the original executed counterpart will be delivered. The words “execution,” “executed,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper- based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided, that nothing herein shall require the Administrative Agent to accept electronic signatures in any form or format without its prior written consent; provided, further, that, without limiting the foregoing, upon the request of the Administrative Agent, any electronic signature shall be promptly followed by such manually executed counterpart.
SECTION 6. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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SECTION 7. Headings. Section headings in this Amendment are for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
SECTION 8. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AMENDMENT, THE CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.
SECTION 9. Miscellaneous. This Amendment shall be subject to the provisions of Sections 10.12 and 10.15 of the Credit Agreement, each of which is incorporated by reference herein, mutatis mutandis.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW]
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The parties hereto have caused this Amendment to be executed by their respective duly authorized representatives as of the date first written above.
AVISTA CORPORATION | |
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By: | /s/ Jason E. Lang |
Name: | Jason E. Lang |
Title: | Assistant Treasurer and Director of Finance and Risk |
[Signature Page to First Amendment to Avista Corporation Credit Agreement]
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KEYBANK NATIONAL ASSOCIATION, as Administrative Agent and a Lender | |
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By: | /s/ Jonathan Bouvet |
Name: | Jonathan Bouvet |
Title: | Senior Vice President |
[Signature Page to First Amendment to Avista Corporation Credit Agreement]
Exhibit A
SCHEDULE 2.01
Names, Commitments and Addresses of Lenders
Lender |
Commitment |
KeyBank National Association 127 Public Square Cleveland, Ohio 44114-1306 Attention: Jonathan Bouvet Telephone: (216) 689-5702 E-mail: Renewables.ProjectFinance@KeyBank.com; and Jonathan.M.Bouvet@Key.com | $100,000,000.00 |
Total: |
$100,000,000.00 |
Exhibit B
SCHEDULE 4.02(a)(ii)
Required Governmental Approvals
Washington
On December 13, 2022, the Company submitted advance notice, and a request for an order affirming compliance with the notice requirement, to the Washington Utilities and Transportation Commission in respect of this Agreement.
Oregon
None.
Idaho
On December 13, 2022, the Company submitted to the Idaho Public Utilities Commission an application for authorization in respect of this Agreement, which the Idaho Public Utilities Commission approved at its December 13, 2022 Decision Meeting and confirmed in Order No. 35626, entered December 13, 2022 in Case No. AVU-U-22-02.
Montana
None.