Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 3
TO
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 3 TO RECEIVABLES PURCHASE AGREEMENT dated as of
March 22, 2005 (this "Amendment") is entered into among AVISTA RECEIVABLES CORP.
(the "Seller"), AVISTA CORPORATION (the "Servicer"), RANGER FUNDING COMPANY LLC
(formerly known as Receivables Capital Company LLC) (the "Conduit Purchaser")
and Bank of America, N.A., as "Committed Purchaser" (in such capacity, the
"Committed Purchaser") and as "Administrator" (in such capacity, the
"Administrator") under the Receivables Purchase Agreement defined below.
Capitalized terms used herein but not defined herein shall have the meanings
provided in such Receivables Purchase Agreement.
W I T N E S S E T H
WHEREAS, the Seller, the Servicer, the Conduit Purchaser, the
Committed Purchaser and the Administrator are parties to that certain
Receivables Purchase Agreement dated as of May 29, 2002 (as amended, restated,
supplemented or otherwise modified from time to time, the "Receivables Purchase
Agreement");
WHEREAS, the Seller, the Servicer, the Conduit Purchaser, the
Committed Purchaser and the Administrator have agreed to amend the Receivables
Purchase Agreement on the terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the premises set forth above,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Seller, the Servicer, the Conduit Purchaser,
the Committed Purchaser and the Administrator hereby agree as follows:
SECTION 1. Amendments. Subject to the fulfillment of the condition
precedent set forth in Section 2 below, the Receivables Purchase Agreement is
hereby amended as follows:
1.1 Section 4.01 of the Receivables Purchase Agreement is amended
and restated in its entirety as follows:
SECTION 4.01. Fees. Seller shall pay to the Administrator and the
Purchasers the fees in the amounts and at the times set forth herein and in the
amended and restated fee letter, dated as of March 22, 2005, among the
Administrator, Parent and Seller (as amended, restated, supplemented or
otherwise modified from time to time, the "Fee Letter").
1.2 Section 7.01(c) of the Receivables Purchase Agreement is amended
to delete the following proviso appearing at the end thereof:
provided, further that if Parent's senior unsecured long-term debt
is rated below BBB- by S&P or below Baa3 by Moody's, Seller and
Parent shall be obligated to pay for two such reviews in each
calendar year.
1.3 The definition of "Loss Reserve" set forth in Appendix A to the
Receivables Purchase Agreement is amended and restated in its entirety as
follows:
"Loss Reserve" means, on any day, the product of (A) the Dynamic
Loss Reserve Percentage as most recently calculated and (B) the Net Pool
Balance on such day.
1.4 The definition of "Required Reserves" set forth in Appendix A to
the Receivables Purchase Agreement is amended and restated in its entirety as
follows:
"Required Reserves" means, on any day, an amount equal to the
greater of (A) the sum of (1) the Dilution Reserve, plus (2) the Loss
Reserve, plus (3) the Yield Reserve, in each case as most recently
calculated, and (B) the Minimum Reserve Floor, as most recently
calculated.
1.5 The definition of "Termination Date" set forth in Appendix A to
the Receivables Purchase Agreement is amended to delete the reference to "May
29, 2005" in clause (c) thereof and substitute "March 21, 2006" therefor.
1.6 The following definition of "Minimum Reserve Floor" is added to
Appendix A to the Receivables Purchase Agreement in alphabetical order therein:
"Minimum Reserve Floor" means, on any day, an amount equal to the
product of (A) the sum of (1) 8.0%, plus (2) the product of (x) the
Expected Dilution, times (y) the Dilution Horizon Ratio, in each case as
most recently calculated and as defined in the definition of "Dilution
Reserve Percentage", times (B) the Net Pool Balance on such day.
SECTION 2. Condition Precedent. The effectiveness of this Amendment
is subject to the satisfaction of the condition precedent that the Administrator
shall have received (which receipt may be by facsimile transmission) (i)
counterparts of that certain amended and restated fee letter dated as of the
date hereof, by and among the Seller, the Servicer and the Administrator, and
(ii) counterparts of this Amendment, executed by the Seller, the Servicer, the
Conduit Purchaser, the Committed Purchaser and the Administrator.
SECTION 3. Representations and Warranties. Each of the Seller and
the Servicer hereby represents and warrants that (i) this Amendment constitutes
its legal, valid and binding obligation, enforceable against such party in
accordance with its terms, (ii) before and after giving effect to this
Amendment, the representations and warranties of each such party, respectively,
set forth in Article 6 of the Receivables Purchase Agreement are true and
correct in all material respects with the same effect as if made on the date
hereof, except to the extent such representations and warranties expressly
relate to an earlier date. The Seller further represents and warrants that
before and after giving effect to this Amendment, no event has occurred and is
continuing that constitutes a Liquidation Event or an Unmatured Liquidation
Event.
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SECTION 4. Reference to and Effect on the Receivables Purchase
Agreement.
4.1 Upon the effectiveness of this Amendment, (i) each reference in
the Receivables Purchase Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import shall mean and be a reference to the
Receivables Purchase Agreement, as amended hereby, and (ii) each reference to
the Receivables Purchase Agreement in any other Transaction Document or any
other document, instrument or agreement executed and/or delivered in connection
therewith, shall mean and be a reference to the Receivables Purchase Agreement
as amended hereby.
4.2 Except as specifically amended above, the terms and conditions
of the Receivables Purchase Agreement, of all other Transaction Documents and
any other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect and are hereby
ratified and confirmed.
4.3 The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the
Administrator, the Conduit Purchaser or the Committed Purchaser under the
Receivables Purchase Agreement or any other Transaction Document or any other
document, instrument or agreement executed in connection therewith, nor
constitute a waiver of any provision contained therein, in each case except as
specifically set forth herein.
SECTION 5. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different 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 but one and the
same instrument.
SECTION 6. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Section Titles. The section titles contained in this
Amendment are and shall be without substance, meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
AVISTA RECEIVABLES CORP.,
as Seller
By: /s/ Diane C. Thoren
----------------------------
Name: Diane C. Thoren
Title: Vice President
AVISTA CORPORATION,
as Servicer
By: /s/ Diane C. Thoren
----------------------------
Name: Diane C. Thoren
Title: Assistant Treasurer
Signature Page to
Amendment No. 3 to Receivables Purchase Agreement
RANGER FUNDING COMPANY LLC (formerly known
as Receivables Capital Company LLC), as
Conduit Purchaser
By: /s/ Doris J. Hearn
----------------------------
Name: Doris J. Hearn
Title: Vice President
Signature Page to
Amendment No. 3 to Receivables Purchase Agreement
Bank of America, N.A.,
as Committed Purchaser and as Administrator
By: /s/ Robert R. Wood
----------------------------
Name: Robert R. Wood
Title: Principal
Signature Page to
Amendment No. 3 to Receivables Purchase Agreement