AMENDMENT NO. 2
TO
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
This AMENDMENT NO. 2, dated as of
September 16, 2008 (this “ Amendment
”), is made by and among TUCSON ELECTRIC POWER COMPANY, an
Arizona corporation (the “ Borrower ”),
the lenders listed on the signature pages of this Amendment as
“Lenders” (such lenders, together with their respective
permitted assignees from time to time, being referred to herein,
collectively, as the “ Lenders ”), and
JPMORGAN CHASE BANK, N.A., as administrative agent for the Issuing
Bank (as defined in the Reimbursement Agreement referred to below)
and the Lenders (in such capacity, the “ Administrative
Agent ”).
The Borrower, the Lenders, JPMorgan Chase Bank,
N.A., as Issuing Bank, Union Bank of California, N.A., as
Syndication Agent, ABN AMRO Bank N.V., SunTrust Bank and Wells
Fargo Bank, National Association, as Co-Documentation Agents, and
the Administrative Agent previously entered into that certain
Letter of Credit and Reimbursement Agreement, dated as of
April 30, 2008, as amended by Amendment No. 1 thereto,
dated as of May 30, 2008 (as so amended, the “
Existing Agreement ”, as amended by this
Amendment, the “ Amended Agreement ”, and
as the Amended Agreement may hereafter be amended, supplemented or
otherwise modified from time to time, the “
Reimbursement Agreement ”). The Borrower
desires to amend Section 6.07 ( Leverage Test ) of the
Existing Agreement in certain particulars. Each of the Borrower,
the Required Lenders and the Administrative Agent has agreed to
such amendment, on the terms and conditions set forth herein. The
parties therefore agree as follows (capitalized terms used but not
defined herein having the meanings assigned such terms in the
Existing Agreement):
SECTION 1. Amendment to Existing
Agreement . The
Existing Agreement is, effective as of the date hereof and subject
to the satisfaction of the conditions precedent set forth in
Section 2 hereof, hereby amended as follows:
(a) Leverage Test .
Section 6.07 of the Existing Agreement is hereby amended and
restated in its entirety to read as follows:
SECTION 6.07. Leverage Test . The
Borrower will not permit the ratio of (a) Consolidated Total
Indebtedness at the end of any fiscal quarter to
(b) Consolidated EBITDA for the twelve-month period ended on
such date to be greater than the amount specified in the chart
below for the period in which such date shall occur:
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Period
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Maximum Ratio
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From the Effective Date through and including
June 30, 2008
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4.00
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From July 1, 2008 through and including
September 30, 2008
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4.50
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From October 1, 2008 through and including
December 31, 2008
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4.75
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From January 1, 2009 through and including
June 30, 2009
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4.50
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From and after July 1, 2009
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4.00
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SECTION 2. Conditions of Effectiveness of
Amendment . The
amendment to the Existing Agreement set forth in Section 1
hereof shall become effective as of the date hereof when, and only
when, the Administrative Agent shall have received
(a) counterparts of this Amendment executed by the Borrower,
the Required Lenders and the Administrative Agent and (b) for
the account of each Lender that delivers an executed counterpart of
this Amendment on or before September 16, 2008, a
non-refundable amendment fee of 0.10% of such Lender’s
Revenue Bond Commitment, in immediately available funds.
SECTION 3 . Representations and Warranties of the
Borrower . The
Borrower represents and warrants as follows:
(a) The execution and delivery by the
Borrower of this Amendment, and the performance by the Borrower of
this Amendment and the Amended Agreement, are within the
Borrower’s organizational powers and have been duly
authorized by all necessary corporate and, if required, stockholder
action, and do not and will not (i) violate any Requirement of
Law, (ii) violate or result in a default under any indenture,
agreement or other instrument binding upon the Borrower or any of
its Consolidated Subsidiaries or its assets
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