Filed by Bowne Pure Compliance





Exhibit 4(w)(3)


[EXECUTION COPY]




AMENDMENT NO. 2

TO

AMENDED AND RESTATED CREDIT AGREEMENT




This AMENDMENT NO. 2, dated as of February 26, 2009 (this “Amendment”), is made by and among
UNISOURCE ENERGY CORPORATION, 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 UNION BANK, N.A. (formerly known as Union Bank of California, N.A.), as administrative agent
for the Lenders (in such capacity, the “Administrative Agent”).



PRELIMINARY STATEMENT:




The Borrower, the Lenders party thereto, The Bank of New York and JPMorgan Chase Bank, N.A.,
as Co-Syndication Agents, Wells Fargo Bank, National Association and ABN AMRO Bank N.V., as
Co-Documentation Agents, and the Administrative Agent previously entered into that certain Amended
and Restated Credit Agreement, dated as of August 11, 2006, as amended by Amendment No. 1 thereto,
dated as of September 16, 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 “Credit Agreement”). The Borrower
desires to amend Section 6.02(a) (Liens) and Section 6.13 (Leverage Test) of the Existing Agreement
in certain particulars. Each of the Borrower, the Required Lenders and the Administrative Agent
has agreed to such amendments, 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. Amendments 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 6.13 of the Existing Agreement is hereby amended and restated in
its entirety to read as follows:




SECTION 6.13. Leverage Test. The Borrower will not permit the ratio of
(a) Consolidated Total Indebtedness at the end of any fiscal quarter, commencing with the
fiscal quarter ending June 30, 2006, to (b) Consolidated EBITDA for the
four-fiscal-quarter 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:




	 	 	 	 	 
	Period	 	Maximum Ratio	 
	 
	From the Effective Date through and including December 31,
2006
	 	 	5.00	 
	From January 1, 2007 through and including June 30, 2008
	 	 	4.75	 
	From July 1, 2008 through and including September 30, 2008
	 	 	5.00	 
	From October 1, 2008 through and including June 30, 2009
	 	 	5.25	 
	From and after July 1, 2009
	 	 	5.00	 






 


 









 






(b) Liens. Section 6.02(a)(x) of the Existing Agreement is hereby amended by deleting the
amount “$25,000,000” in its entirety and substituting therefor the new amount “$50,000,000”.



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, for purposes of determining
whether the conditions precedent set forth in Section 4.02 of the Existing Agreement to the making
of any Revolving Loan have been satisfied, the Lenders holding a majority in interest of the
Revolving Commitments, and (b) for the account of each Lender that delivers an executed counterpart
of this Amendment at or before 12:00 noon (New York, New York time) on February 26, 2009, a
non-refundable amendment fee of 0.25% of the sum of (i) such Lender’s Revolving Commitment and (ii)
the aggregate outstanding principal amount of such Lender’s Term Loans, 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, or give rise to a
right thereunder to require any payment to be made by the Borrower or any of its Consolidated
Subsidiaries, or (iii) result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Consolidated Subsidiaries, except Liens created under the Loan Documents.
This Amendment has been duly executed and delivered by the Borrower.


 


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(b) The execution and delivery by the Borrower of this Amendment, and the performance by the
Borrower of this Amendment and the Amended Agreement, do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority, except as set
forth in Section 3.03(a) of the Existing Agreement.



(c) Each of this Amendment and the Amended Agreement constitutes a legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.



(d) No Default or Event of Default has occurred and is continuing.



SECTION 4. Reference to and Effect on the Existing Agreement. (a) Upon the effectiveness of
this Amendment: (i) each reference in the Existing Agreement to “this Agreement”, “hereunder”,
“hereof” or words of like import referring to the Existing Agreement shall mean and be a reference
to the Credit Agreement; and (ii) each reference in any other Loan Document to “the Credit
Agreement”, “thereunder”, “thereof” or words of like import referring to the Existing Agreement
shall mean and be a reference to the Credit Agreement.



(b) Except as specifically amended or waived above, the Existing Agreement shall continue to
be in full force and effect and is hereby in all respects ratified and confirmed. Without limiting
the generality of the foregoing, the Security Documents and all of the Collateral described therein
do and shall continue to secure the payment of all Obligations.



(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the Lenders or the
Administrative Agent under the Existing Agreement or any other Loan Document, nor constitute a
waiver of any provision of the Existing Agreement or any other Loan Document.



SECTION 5. Costs and Expenses. The Borrower agrees to pay on demand all reasonable
out-of-pocket expenses of the Administrative Agent in connection with the preparation, negotiation,
syndication, execution and delivery of this Amendment and the other instruments and documents to be
delivered hereunder, including, without limitation, the reasonable fees, charges and disbursements
of counsel to the Administrative Agent with respect thereto and
with respect to advising the Administrative Agent as to its rights and responsibilities
hereunder and thereunder, and all out-of-pocket expenses incurred by the Administrative Agent or
any Lender (including, without limitation, the fees, charges and disbursements of any counsel for
the Administrative Agent or any Lender) in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Amendment.


 


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SECTION 6. 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. In furtherance of the foregoing, it is understood and
agreed that signatures hereto submitted by facsimile or other electronic transmission shall be
deemed to be, and shall constitute, original signatures.



SECTION 7. Governing Law. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of the New York.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]






 


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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.



	 	 	 	 	 
	 	UNISOURCE ENERGY CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	UNION BANK, N.A. (formerly known as Union Bank of
California, N.A.), as
Administrative Agent and a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Amendment No. 2 to UniSource Energy Amended and Restated Credit Agreement




 


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	 	WELLS FARGO BANK, NATIONAL
ASSOCIATION,
 as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Amendment No. 2 to UniSource Energy Amended and Restated Credit Agreement




 


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	 	ABN AMRO BANK N.V., as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	

 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Amendment No. 2 to UniSource Energy Amended and Restated Credit Agreement




 


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THE BANK OF NEW YORK MELLON, as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Amendment No. 2 to UniSource Energy Amended and Restated Credit Agreement





 


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JPMORGAN CHASE BANK, N.A., as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Amendment No. 2 to UniSource Energy Amended and Restated Credit Agreement




 


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CREDIT SUISSE, CAYMAN ISLANDS BRANCH (as successor to
Credit Suisse First Boston, acting through its Cayman
Island Branch), as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Amendment No. 2 to UniSource Energy Amended and Restated Credit Agreement





 


S-6









 







	 	 	 	 	 
	 	

COBANK, ACB, as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Amendment No. 2 to UniSource Energy Amended and Restated Credit Agreement




 


S-7









 







	 	 	 	 	 
	 	

WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to Amendment No. 2 to UniSource Energy Amended and Restated Credit Agreement





 


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