Exhibit 10.1
AMENDMENT NO. 5
TO
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 5 TO RECEIVABLES
PURCHASE AGREEMENT dated as of May 4, 2006 (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.
WITNESSETH
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 7.03(e)(i) of the
Receivables Purchase Agreement is amended by deleting the period at
the end thereof and inserting the following at the end
thereof:
; provided , that ,
the Parent and its Affiliates may consummate the Reorganization
Transactions if the following conditions are satisfied: (v) at
all times before and after giving effect to the Reorganization
Transactions, Avista Corporation (provided that its name may be
changed in connection with the Reorganization Transactions so long
as the Parent (i) provides to the Administrator not less than
thirty (30) days prior written notice thereof and
(ii) takes all steps under the UCC that the Administrator may
request to continue the perfection and priority of the
Seller’s interest in the Pool Receivables and the Related
Rights (as defined in the Purchase Agreement) will continue to be
the Originator and the Servicer and the owner of all of the issued
and outstanding capital stock of Seller, and the Parent will
continue to operate its utility business subject to regulation by
the applicable
state public utility commissions and
the U.S. Federal Energy Regulatory Commission; (w) both before
and after giving effect to the Reorganization Transactions no
Liquidation Event or Unmatured Liquidation Event shall have
occurred and be continuing; (x) not less than five Business
Days prior to consummation of the Reorganization Transactions, the
Parent shall have delivered to the Administrator consolidated and
consolidating statements of income and statements of cash flow of
the Parent and its consolidated Subsidiaries, as of the date of
those statements most recently delivered to the Administrator
pursuant to Section 7.02 , reflecting on a pro forma
basis the transfer by the Parent of the capital stock of Avista
Capital to AVA Formation Corp., certified by the chief financial
officer or treasurer (each, a “ Financial Officer
”) of the Parent, and a copy of the Plan of Exchange,
certified by an executive officer or Financial Officer of the
Parent or any other officer or similar official responsible for the
administration of the Parent’s obligations hereunder (each
such person, a “ Responsible Officer ”);
(y) concurrently with the delivery of financial statements
under the immediately preceding clause (x), the Parent shall have
delivered to the Administrator (i) a certificate of the
relevant accounting firm opining on or certifying such statements
or Financial Officer (which certificate, when furnished by an
accounting firm, may be limited to accounting matters and disclaim
responsibility for legal interpretations) certifying that to the
knowledge of the accounting firm or the Financial Officer, as the
case may be, no Liquidation Event or Un
