Exhibit 10.1
WAIVER AND AMENDMENT NO.
9
TO
RECEIVABLES PURCHASE AGREEMENT
THIS WAIVER AND AMENDMENT NO. 9 TO
RECEIVABLES PURCHASE AGREEMENT dated as of August 4, 2009
(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, supplemented
or otherwise modified from time to time, the “ Receivables
Purchase Agreement ”); and
WHEREAS, the Seller has requested
that the Conduit Purchaser, the Committed Purchaser and the
Administrator waive any occurrence of a Liquidation Event under
Section 10.01(j) of the Receivables Purchase Agreement arising
solely because the average of the Delinquency Ratios for the three
successive Cut-Off Dates as of June 30, 2009 was greater than
3.60% (the “ Specified Liquidation Event
”);
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;
and
WHEREAS, the Conduit Purchaser, the
Committed Purchaser and the Administrator have agreed to so waive
the Specified Liquidation Event on the terms and conditions set
forth below;
SECTION 1. Waiver
.
1.1 As of July 30, 2009,
subject to the fulfillment of the conditions precedent set forth in
Section 3 below, the Conduit Purchaser, the Committed
Purchaser and the Administrator hereby waive the Specified
Liquidation Event.
1.2 Other than as explicitly set
forth above, nothing in this Amendment shall (i) be deemed to
constitute a waiver of any other term, provision or condition
of the Receivables Purchase Agreement or any other Transaction
Document or (ii) prejudice any right or remedy that any party
to the Receivables Purchase Agreement may now have or may have in
the future under or in connection with the Receivables Purchase
Agreement or any other Transaction Document.
SECTION 2. Amendment . As of
July 30, 2009, subject to the fulfillment of the conditions
precedent set forth in Section 3 below, the Receivables
Purchase Agreement is hereby amended as follows:
2.1 Section 10.01(j) of
the Receivables Purchase Agreement is hereby amended and restated
in its entirety to read as follows:
“(j) The average of the
Delinquency Ratios for (i) the three successive Cut-Off Dates
as of July 31, 2009 or as of August 31, 2009 is greater
than 6.0% or (ii) for any other three successive Cut-Off Dates
is greater than 3.60%.”
2.2 Section 3.01(a) of
the Receivables Purchase Agreement is hereby amended by adding the
following two sentences to the end of such section:
If Parent’s senior unsecured
long-term debt is rated below BBB- by S&P or below Baa3 by
Moody’s, upon the request of the Administrator, Servicer
shall deliver to the Administrator, on or before 4:00 p.m. (New
York City time) on the second Business Day of each calendar week, a
weekly report in form and scope reasonably acceptable to the
Administrative Agent (a “ Weekly Report ”) in
respect of the Pool Receivables related to the calendar week then
most recently ended. If Parent’s senior unsecured long-term
debt is rated below BB by S&P or below Ba2 by Moody’s,
upon the request of the Administrator, Servicer shall deliver to
the Administrator, on or before 4:00 p.m. (New York City time) of
each Business Day, a daily report in form and scope reasonably
acceptable to the Administrative
