Exhibit 10.1
EXECUTION VERSION
CONTINUING LETTER OF CREDIT AGREEMENT
(FOR STANDBY LETTERS OF CREDIT)
December 29, 2022
(Date)
MUFG Bank, Ltd.
1251 Avenue of the Americas
New York, New York 10020
To induce you, in your sole discretion from time to time, to issue one or more irrevocable letters of credit pursuant to the terms and conditions of this agreement (as amended, supplemented or otherwise modified from time to time, including the application for such Credit, this “Agreement”), Applicant unconditionally and irrevocably agrees with you (including to the extent applicable your branches and other affiliates where Applicant requests or authorizes you to issue through such branch or affiliate, “Issuer”), as follows:
“Affiliate” means, with respect to any person, any other person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with such first person; whereby “control” means 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 ability to exercise voting power, by contract or otherwise (and “controlled” shall have a meaning correlative thereto).
“Anti-Corruption Laws” means the U.S. Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and in each case the rules and regulations promulgated thereunder, any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and all other laws, rules, and regulations of any jurisdiction applicable to this Agreement, the Credits, the Applicant or any of its Subsidiaries concerning or relating to bribery or corruption.
“Anti-Money Laundering Laws” means the PATRIOT Act, the Money Laundering Control Act of 1986, the Bank Secrecy Act, and the rules and regulations promulgated thereunder, and corresponding laws of any relevant jurisdiction, including the jurisdictions in which Applicant or any of its Subsidiaries operates or in which the proceeds of the Credits will be used.
“Applicant” means each of the parties signing this Agreement as an “Applicant”.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” mean 31 C.F.R. § 1010.230.
“Beneficiary” means, at any time, the beneficiary(ies) of a Credit, including any second or substitute beneficiary(ies) or transferee(s) under a transferable Credit and any successor of a beneficiary by operation of law.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks are authorized or required to close in New York City.
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“Change in Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof), of shares representing more than 30% of the aggregate ordinary voting power represented by the issued and outstanding capital stock of Applicant; or (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of Applicant by persons who were neither (i) nominated by the board of directors of Applicant nor (ii) appointed by directors so nominated; provided, that no event described in clause (a) or clause (b) shall constitute a “Change in Control” if, immediately after giving effect to the transaction that would otherwise constitute a Change in Control, the Senior Debt Rating assigned by two nationally recognized credit rating agencies is equal to or higher than Lowest Investment Grade.
“Credit” means each letter of credit issued by Issuer at the request of the Applicant hereunder to support obligations of the Applicant and/or the obligations of a Subsidiary Account Party under such letter of credit (and any amendment or replacement thereof which is authorized by its terms or by consent of Applicant), substantially in the form agreed between the Applicant and the Issuer.
“Deposits” has the meaning provided in Section 17 hereof.
“Dollars” or “$” mean, at any time, the lawful currency of the United States of America.
“Event of Default” has the meaning provided in Section 15 hereof.
“Governmental Authority” means any government, governmental authority, any agency, department, commission, board, authority, instrumentality, bureau, administrative, or judicial body, court or tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory, supervisory or administrative powers or functions of or pertaining to government, in each case whether domestic or foreign, national, federal, state, provincial, territorial, departmental, municipal or local, including those in United States of America.
“Indemnified Party” means Issuer and each officer, director, affiliate, employee and agent thereof.
“ISP” means the International Standby Practices 1998, International Chamber of Commerce Publication No. 590.
“Issuer” has the meaning provided in the introductory paragraph of this Agreement. “Issuer’s Office” has the meaning provided in Section 4(a) hereof.
“Lowest Investment Grade” shall mean that the Senior Debt Rating assigned to the applicable indebtedness of Applicant is a rating which, as reasonably determined by the Issuer, 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.
“Obligations” means all present and future obligations of Applicant under this Agreement or in respect of any Credit, whether due or to become due, absolute or contingent, joint, several or independent, including interest accruing at the rate provided in this Agreement on or after the commencement of any bankruptcy or insolvency proceeding in respect of Applicant, whether or not such interest is allowed or allowable.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.
“PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
“Practices” has the meaning provided in Section 24(b) hereof.
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“Prime Rate” means, for any day, the rate established by Issuer from time to time as its U.S. prime commercial lending rate (which rate does not necessarily represent the lowest rate of interest changed by Issuer to its borrowers).
“Sanctioned Country” means a country or territory that is or whose government is subject of a U.S. sanctions program that broadly prohibits dealings with that country, territory or government.
“Sanctioned Person” means, at any time, any person (a) that is listed on the Specially Designated Nationals and Blocked Persons list or the Consolidated Sanctions list maintained by OFAC, or any similar list maintained by OFAC, the U.S. Department of State, the European Union, any European Union member state or the United Nations Security Council, (b) that is operating, organized or resident in a Sanctioned Country, (c) that is fifty-percent or more in the aggregated owned by, otherwise controlled by, or acting for the benefit or on behalf of, directly or indirectly, one or more persons described in clauses (a) or (b) above, or (d) with whom a U.S. person is otherwise prohibited or restricted by Sanctions Laws from engaging in trade, business or other activities.
“Sanctions Laws” means the laws, rules, regulations and executive orders promulgated or administered to implement economic sanctions or anti-terrorism programs by (a) any U.S. Governmental Authority (including OFAC and the U.S. Department of State), including Executive Order 13224, the PATRIOT Act, the Trading with the Enemy Act , the International Emergency Economic Powers Act and the laws, regulations, rules and/or executive orders relating to restrictive measures against Iran, (b) the European Union in pursuit of the Common Foreign and Security Policy objectives set out in the Treaty on European Union, (c) the United Nations Security Council or any other legislative body of the United Nations, or (d) any jurisdiction in which Applicant or any of its Subsidiaries operates or in which the proceeds of the Credits will be used or from which repayments and reimbursements of the Obligations under the Agreement will be derived.
“Senior Debt Rating” means, as of any date of determination, as of the close of business on such date (a) the rating assigned to Applicant’s most senior secured long-term public indebtedness (without credit enhancement), (b) if such obligations are not rated, the rating assigned to Applicant’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, reasonably approved by Issuer. Notwithstanding the foregoing, (i) if the Senior Debt Rating(s) assigned by any of the other nationally recognized credit-rating agencies is or are different from the Senior Debt Rating assigned by the agency designated by Applicant and the ratings (including that of the agency designated by Applicant) are split by just one level, then the higher rating will apply, and (ii) if the ratings (including that of the agency designated by Applicant) are split by more than one level, then the level that is one level below the highest rating will apply.
“Specified Currency” has the meaning provided in Section 4(a) hereof.
“Subsidiary” shall mean, with respect to any person, any other person (a) the securities of which having ordinary voting power to elect a majority of the board of directors (or other persons having similar functions) or (b) the other ownership interests of which ordinarily constituting a majority voting interest; in either case, are at the time, directly or indirectly, owned or controlled by such first person, or by one or more of its Subsidiaries, or by such first person and one or more of its Subsidiaries.
“Subsidiary Account Party” means any direct or indirect Subsidiary of Applicant that Issuer approves in writing as a party on whose behalf the Applicant may request the Issuer to issue a Credit.
“Taxes” has the meaning provided in Section 6 hereof.
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“UCC” means the Uniform Commercial Code, as in effect from time to time in the applicable jurisdiction.
“UCP” means the Uniform Customs and Practice for Documentary Credits, 2007 Revision, International Chamber of Commerce Publication No. 600.
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Very truly yours,
Applicant:
AVISTA CORPORATION |
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By: | /s/ Jason E. Lang |
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Name: | Jason E. Lang |
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Title: | Assistant Treasurer and Director of Finance and Risk |
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Applicant's type & jurisdiction of organization: Washington Corporation
Applicant's address for notices, etc.:
| 1411 East Mission Avenue |
| P.O. Box 3727 |
| Spokane, WA 99202 |
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| Attention: Assistant Treasurer and Director of Finance and Risk |
| Telephone number: (509)-495-2930 |
| Email Address: Jason.Lang@avistacorp.com |
Applicant's Agent (if any) for service of process per Section 25(a):
Print Name: |
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Complete Address: |
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| (which must be in the State of New York) |
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ACCEPTED AND AGREED TO:
MUFG Bank, LTD. |
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By: | /s/ Matthew Bly |
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Name: | Matthew Bly |
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Title: | Director |
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