EXHIBIT 4.3
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AVISTA CORPORATION
TO
CITIBANK, N.A.
As Successor Trustee under
Mortgage and Deed of Trust,
dated as of June 1, 1939
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THIRTY-SIXTH SUPPLEMENTAL INDENTURE
Providing among other things for two series of bonds designated
"First Mortgage Bonds, Collateral Series 2004B"
Due October 1, 2032
and
"First Mortgage Bonds, Collateral Series 2004C"
Due March 1, 2034
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Dated as of December 1, 2004
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THIRTY-SIXTH SUPPLEMENTAL INDENTURE
THIS INDENTURE, dated as of the 1st day of December 2004, between
AVISTA CORPORATION (formerly known as The Washington Water Power Company), a
corporation of the State of Washington, whose post office address is 0000 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (the "Company"), and CITIBANK, N.A.,
formerly First National City Bank (successor by merger to First National City
Trust Company, formerly City Bank Farmers Trust Company), a national banking
association incorporated and existing under the laws of the United States of
America, whose post office address is 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, 00000 New York (the "Trustee"), as Trustee under the Mortgage and Deed of
Trust, dated as of June 1, 1939 (the "Original Mortgage"), executed and
delivered by the Company to secure the payment of bonds issued or to be issued
under and in accordance with the provisions thereof, this indenture (the
"Thirty-sixth Supplemental Indenture") being supplemental to the Original
Mortgage, as heretofore supplemented and amended.
WHEREAS pursuant to a written request of the Company made in
accordance with Section 103 of the Original Mortgage, Xxxxxxx X. Xxxx (then
Individual Trustee under the Mortgage, as supplemented) ceased to be a trustee
thereunder on July 23, 1969, and all of his powers as Individual Trustee have
devolved upon the Trustee and its successors alone; and
WHEREAS by the Original Mortgage the Company covenanted that it
would execute and deliver such further instruments and do such further acts as
might be necessary or proper to carry out more effectually the purposes of the
Original Mortgage and to make subject to the lien of the Original Mortgage any
property thereafter acquired intended to be subject to the lien thereof; and
WHEREAS the Company has heretofore executed and delivered, in
addition to the Original Mortgage, the indentures supplemental thereto, and has
issued the series of bonds, set forth in Exhibit A hereto (the Original
Mortgage, as supplemented and amended by the First through Thirty-fifth
Supplemental Indentures, being herein sometimes called the "Mortgage"); and
WHEREAS the Original Mortgage and the First through Thirty-third
Supplemental Indentures have been appropriately filed or recorded in various
official records in the States of Washington, California, Idaho, Montana and
Oregon, as set forth in the First through Thirty-fourth supplemental Indentures
and the Instrument of Further Assurance, dated December 15, 2001, hereinafter
referred to; and
WHEREAS the Thirty-fourth Supplemental Indenture, dated as of
November 1, 2004, and the Thirty-fifth Supplemental Indenture, dated as of
December 1, 2004, are to be appropriately filed or recorded; and
WHEREAS for the purpose of confirming or perfecting the lien of the
Mortgage on certain of its properties, the Company has heretofore executed and
delivered a Short Form Mortgage and Security Agreement, in multiple counterparts
dated as of various dates in 1992, and such instrument has been appropriately
filed or recorded in the various official records in the States of California,
Montana and Oregon; and
WHEREAS for the purpose of confirming or perfecting the lien of the
Mortgage on certain of its properties, the Company has heretofore executed and
delivered an Instrument of Further Assurance, dated as of December 15, 2001, and
such instrument has been appropriately filed or recorded in the various official
records in the States of Washington, California, Idaho, Montana and Oregon; and
WHEREAS in addition to the property described in the Mortgage the
Company has acquired certain other property, rights and interests in property;
and
WHEREAS Section 8 of the Original Mortgage provides that the form of
each series of bonds (other than the First Series) issued thereunder and of the
coupons to be attached to coupon bonds of such series shall be established by
Resolution of the Board of Directors of the Company; that the form of such
series, as established by said Board of Directors, shall specify the descriptive
title of the bonds and various other terms thereof; and that such series may
also contain such provisions not inconsistent with the provisions of the
Mortgage as the Board of Directors may, in its discretion, cause to be inserted
therein expressing or referring to the terms and conditions upon which such
bonds are to be issued and/or secured under the Mortgage; and
WHEREAS Section 120 of the Original Mortgage provides, among other
things, that any power, privilege or right expressly or impliedly reserved to or
in any way conferred upon the Company by any provision of the Mortgage, whether
such power, privilege or right is in any way restricted or is unrestricted, may
be in whole or in part waived or surrendered or subjected to any restriction if
at the time unrestricted or to additional restriction if already restricted, and
the Company may enter into any further covenants, limitations or restrictions
for the benefit of any one or more series of bonds issued thereunder, or the
Company may cure any ambiguity contained therein, or in any supplemental
indenture, by an instrument in writing executed and acknowledged by the Company
in such manner as would be necessary to entitle a conveyance of real estate to
record in all of the states in which any property at the time subject to the
lien of the Mortgage shall be situated; and
WHEREAS the Company now desires to create two new series of bonds;
and
WHEREAS the execution and delivery by the Company of this
Thirty-sixth Supplemental Indenture, and the terms of the bonds of the
Thirty-fourth and Thirty-fifth Series, hereinafter referred to, have been duly
authorized by the Board of Directors of the Company by appropriate Resolutions
of said Board of Directors, and all things necessary to make this Thirty-sixth
Supplemental Indenture a valid, binding and legal instrument have been
performed;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That the Company, in
consideration of the premises and of other good and valuable consideration, the
receipt and sufficiency whereof are hereby acknowledged, hereby confirms the
estate, title and rights of the Trustee (including, without limitation, the lien
of the Mortgage on the property of the Company subjected thereto, whether now
owned or hereafter acquired) held as security for the payment of both the
principal of and interest and premium, if any, on the bonds from time to time
issued under the Mortgage according to their tenor and effect and the
performance of all the provisions of the Mortgage and of such bonds, and,
without limiting the generality of the foregoing, hereby
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confirms the grant, bargain, sale, release, conveyance, assignment, transfer,
mortgage, pledge, setting over and confirmation unto the Trustee, contained in
the Mortgage, of all the following described properties of the Company, whether
now owned or hereafter acquired, namely:
All of the property, real, personal and mixed, of every character
and wheresoever situated (except any hereinafter or in the Mortgage
expressly excepted) which the Company now owns or, subject to the
provisions of Section 87 of the Original Mortgage, may hereafter acquire
prior to the satisfaction and discharge of the Mortgage, as fully and
completely as if herein or in the Mortgage specifically described, and
including (without in anywise limiting or impairing by the enumeration of
the same the scope and intent of the foregoing or of any general
description contained in Mortgage) all lands, real estate, easements,
servitudes, rights of way and leasehold and other interests in real
estate; all rights to the use or appropriation of water, flowage rights,
water storage rights, flooding rights, and other rights in respect of or
relating to water; all plants for the generation of electricity, power
houses, dams, dam sites, reservoirs, flumes, raceways, diversion works,
head works, waterways, water works, water systems, gas plants, steam heat
plants, hot water plants, ice or refrigeration plants, stations,
substations, offices, buildings and other works and structures and the
equipment thereof and all improvements, extensions and additions thereto;
all generators, machinery, engines, turbines, boilers, dynamos,
transformers, motors, electric machines, switchboards, regulators, meters,
electrical and mechanical appliances, conduits, cables, pipes and mains;
all lines and systems for the transmission and distribution of electric
current, gas, steam heat or water for any purpose; all towers, mains,
pipes, poles, pole lines, conduits, cables, wires, switch racks,
insulators, compressors, pumps, fittings, valves and connections; all
motor vehicles and automobiles; all tools, implements, apparatus,
furniture, stores, supplies and equipment; all franchises (except the
Company's franchise to be a corporation), licenses, permits, rights,
powers and privileges; and (except as hereinafter or in the Mortgage
expressly excepted) all the right, title and interest of the Company in
and to all other property of any kind or nature.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder and remainders
and (subject to the provisions of Section 57 of the Original Mortgage) the
tolls, rents, revenues, issues, earnings, income, product and profits thereof,
and all the estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter acquire in and to
the aforesaid property and franchises and every part and parcel thereof.
THE COMPANY HEREBY CONFIRMS that, subject to the provisions of
Section 87 of the Original Mortgage, all the property, rights, and franchises
acquired by the Company after the date thereof (except any hereinbefore or
hereinafter or in the Mortgage expressly excepted) are and shall be as fully
embraced within the lien of the Mortgage as if such property, rights and
franchises had been owned by the Company at the date of the Original Mortgage
and had been specifically described therein.
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PROVIDED THAT the following were not and were not intended to be
then or now or hereafter granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, pledged, set over or confirmed under the Mortgage and
were, are and shall be expressly excepted from the lien and operation namely:
(l) cash, shares of stock and obligations (including bonds, notes and other
securities) not hereafter specifically pledged, paid, deposited or delivered
under the Mortgage or covenanted so to be; (2) merchandise, equipment, materials
or supplies held for the purpose of sale in the usual course of business or for
consumption in the operation of any properties of the Company; (3) bills, notes
and accounts receivable, and all contracts, leases and operating agreements not
specifically pledged under the Mortgage or covenanted so to be; (4) electric
energy and other materials or products generated, manufactured, produced or
purchased by the Company for sale, distribution or use in the ordinary course of
its business; and (5) any property heretofore released pursuant to any
provisions of the Mortgage and not heretofore disposed of by the Company;
provided, however, that the property and rights expressly excepted from the lien
and operation of the Mortgage in the above subdivisions (2) and (3) shall (to
the extent permitted by law) cease to be so excepted in the event that the
Trustee or a receiver or trustee shall enter upon and take possession of the
Mortgaged and Pledged Property in the manner provided in Article XII of the
Original Mortgage by reason of the occurrence of a Completed Default as defined
in said Article XII.
TO HAVE AND TO HOLD all such properties, real, personal and mixed,
granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged,
pledged, set over or confirmed by the Company in the Mortgage as aforesaid, or
intended so to be, unto the Trustee, and its successors, heirs and assigns
forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same
terms, trusts and conditions and subject to and with the same provisos and
covenants as set forth in the Mortgage, this Thirty-sixth Supplemental Indenture
being supplemental to the Mortgage.
AND IT IS HEREBY FURTHER CONFIRMED by the Company that all the
terms, conditions, provisos, covenants and provisions contained in the Mortgage
shall affect and apply to the property in the Mortgage described and conveyed,
and to the estates, rights, obligations and duties of the Company and the
Trustee and the beneficiaries of the trust with respect to said property, and to
the Trustee and its successors in the trust, in the same manner and with the
same effect as if the said property had been owned by the Company at the time of
the execution of the Original Mortgage, and had been specifically and at length
described in and conveyed to said Trustee by the Original Mortgage as a part of
the property therein stated to be conveyed.
The Company further covenants and agrees to and with the Trustee and
its successor or successors in such trust under the Mortgage, as follows:
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ARTICLE I
THIRTY-FOURTH SERIES OF BONDS
SECTION 1. (I) There shall be a series of bonds designated
"Collateral Series 2004B" (herein sometimes referred to as the "Thirty-fourth
Series"), each of which shall also bear the descriptive title First Mortgage
Bond, and the form thereof, which has been established by Resolution of the
Board of Directors of the Company, is set forth on Exhibit B hereto. Bonds of
the Thirty-fourth Series shall be issued as fully registered bonds in
denominations of One Thousand Dollars and, at the option of the Company, any
amount in excess thereof (the exercise of such option to be evidenced by the
execution and delivery thereof) and shall be dated as in Section 10 of the
Mortgage provided. Each bond of the Thirty-fourth Series shall mature on October
1, 2032 and shall bear interest, be redeemable and have such other terms and
provisions as set forth below.
(II) The Bonds of the Thirty-fourth Series shall have the following
terms and characteristics:
(a) the Bonds of the Thirty-fourth Series shall be initially
authenticated and delivered under the Mortgage in the aggregate principal
amount of $66,700,000, which principal amount is equal to the outstanding
aggregate principal amount of the 1999A Revenue Bonds;
(b) the Bonds of the Thirty-fourth Series shall bear interest at
the same rate or rates as shall be in effect from time to time in respect
of the 1999A Revenue Bonds; and interest on such bonds shall be payable at
the same times as interest is payable on the 1999A Revenue Bonds;
(c) the principal of and interest on each bond of the
Thirty-fourth Series payable at Maturity shall be payable upon
presentation thereof at the office or agency of the Company in the Borough
of Manhattan, The City of New York, in such coin or currency as at the
time of payment is legal tender for public and private debts. The interest
on each Bond of the Thirty-fourth Series (other than interest payable at
Maturity) shall be payable directly to the registered owner thereof;
(d) the Bonds of the Thirty-fourth Series shall not be
redeemable, in whole or in part, at the option of the Company;
(e) (i) the Bonds of the Thirty-fourth Series are to be issued and
delivered to Ambac pursuant to the Bond Delivery Agreement relating to
such Bonds;
(ii) in the event that any 1999A Revenue Bonds are to be
redeemed pursuant to Section 4.03 of the 0000X Xxxxxxx Xxxx Xxxxxxxxx
following a Determination of Taxability (as defined in the 0000X Xxxxxxx
Xxxx Xxxxxxxxx), Bonds of the Thirty-fourth Series, in a principal amount
equal to the principal amount of 1999A Revenue Bonds to be redeemed, shall
be redeemed on the date fixed for redemption of
5
the 1999A Revenue Bonds, at the principal amount thereof plus accrued
interest to the redemption date;
(iii) in the event that all 1999A Revenue Bonds have become
immediately due and payable pursuant to Section 9.02(a) of the 0000X
Xxxxxxx Xxxx Xxxxxxxxx following the occurrence of an Event of Default (as
defined in the 0000X Xxxxxxx Xxxx Xxxxxxxxx), the Bonds of the
Thirty-fourth Series shall thereupon be redeemed at the principal amount
thereof plus accrued interest to the redemption date (the obligation to
effect such redemption being rescinded upon the rescission of such
acceleration);
(iv) the obligation of the Company to make any payment of the
principal of or interest on the Bonds of the Thirty-fourth Series shall be
deemed to have been satisfied and discharged to the extent of the sum of
(A) the amount, if any, credited under the 1999A Loan
Agreement against the obligation of the Company to make payment in
respect of the corresponding amount of principal of or interest on
the 1999A Revenue Bonds;
(B) the amount, if any, paid by the Company pursuant to the
1999A Loan Agreement in respect of such corresponding amount of
principal of or interest on the 1999A Revenue Bonds; and
(C) if Ambac shall have made a payment in respect of such
corresponding amount of principal of or interest on the 1999A
Revenue Bonds pursuant to the Policy, the amount, if any, paid by
the Company pursuant to the Insurance Agreement to reimburse Ambac
for such payment;
(v) the Trustee shall be entitled to presume that the
obligation of the Company to pay the principal of and interest on the
Bonds of the Thirty-fourth Series as the same shall become due and payable
shall have been fully satisfied and discharged unless and until it shall
have received a written notice from Ambac, signed by an authorized officer
thereof, stating that the principal of and/or interest on the Bonds of the
Thirty-fourth Series has become due and payable and has not been fully
paid, and specifying the amount of funds required to make such payment;
(f) no service charge shall be made for the registration of
transfer or exchange of Bonds of the Thirty-fourth Series;
(g) in the event of an application by Ambac for a substituted Bond
of the Thirty-fourth Series pursuant to Section 16 of the Original
Mortgage, Ambac shall not be required to provide any indemnity or pay any
expenses or charges as contemplated in said Section 16; and
(h) the Bonds of the Thirty-fourth Series shall have such other
terms as are set forth in the form of bond attached hereto as Exhibit B.
6
Anything in this Supplemental Indenture or in the Bonds of the
Thirty-fourth Series to the contrary notwithstanding, if, at the time of the
Maturity of the Bonds of the Thirty-fourth Series, the stated aggregate
principal amount of such Bonds then Outstanding shall exceed the aggregate
principal amount of 1999A Revenue Bonds then outstanding, the aggregate
principal amount of such Bonds shall be deemed to have been reduced by the
amount of such excess.
(III) For all purposes of this Article I, except as otherwise
expressly provided or unless the context otherwise requires, the terms defined
below shall have the meanings specified:
"AMBAC" means Ambac Assurance Corporation, a Wisconsin-domiciled
stock insurance company or any successor thereto as obligor on the Policy.
"BOND DELIVERY AGREEMENT" means, with respect the Bonds of the
Thirty-fourth Series, the Bond Delivery Agreement, dated December 15,
2004, between the Company and Ambac, relating to such Bonds.
"CITY" means the City of Forsyth, Montana, a political subdivision
of the State of Montana.
"INSURANCE AGREEMENT" means the Insurance Agreement, dated as of
September 1, 1999, between Ambac and the Company, as supplemented by the
Insurance Agreement, dated as of January 1, 2002, between Ambac and the
Company.
"POLICY" means the municipal bond insurance policy issued by Ambac
with respect to the 1999A Revenue Bonds.
"1999A LOAN AGREEMENT" means the Loan Agreement, dated as of
September 1, 1999, between the City and the Company, relating to the 1999A
Revenue Bonds.
"1999A REVENUE BONDS" means the Pollution Control Revenue Refunding
Bonds (Avista Corporation Colstrip Project) Series 1999A issued by the
City.
"1999A REVENUE BOND INDENTURE" means the Trust Indenture, dated as
of September 1, 1999, between the City and JPMorgan Chase Bank (successor
by merger to Chase Manhattan Bank and Trust Company, National
Association), trustee, relating to the 1999A Revenue Bonds.
"1999A REVENUE BOND TRUSTEE" means the trustee under the 0000X
Xxxxxxx Xxxx Xxxxxxxxx.
Copies of the 0000X Xxxxxxx Xxxx Xxxxxxxxx, the 1999A Loan Agreement
and the Policy are on file at the office of the 1999A Revenue Bond Trustee at
000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000 and at the office of the
Company at 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000.
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ARTICLE II
THIRTY-FIFTH SERIES OF BONDS
SECTION 1. (I) There shall be a series of bonds designated
"Collateral Series 2004C" (herein sometimes referred to as the "Thirty-fifth
Series"), each of which shall also bear the descriptive title First Mortgage
Bond, and the form thereof, which has been established by Resolution of the
Board of Directors of the Company, is set forth on Exhibit B hereto. Bonds of
the Thirty-fifth Series shall be issued as fully registered bonds in
denominations of One Thousand Dollars and, at the option of the Company, any
amount in excess thereof (the exercise of such option to be evidenced by the
execution and delivery thereof) and shall be dated as in Section 10 of the
Mortgage provided. Each bond of the Thirty-fifth Series shall mature on March 1,
2034 and shall bear interest, be redeemable and have such other terms and
provisions as set forth below.
(II) The Bonds of the Thirty-fifth Series shall have the following
terms and characteristics:
(a) the Bonds of the Thirty-fifth Series shall be initially
authenticated and delivered under the Mortgage in the aggregate principal
amount of $17,000,000, which principal amount is equal to the outstanding
aggregate principal amount of the 1999B Revenue Bonds;
(b) the Bonds of the Thirty-fifth Series shall bear interest at
the same rate or rates as shall be in effect from time to time in respect
of the 1999B Revenue Bonds; and interest on such bonds shall be payable at
the same times as interest is payable on the 1999B Revenue Bonds;
(c) the principal of and interest on each bond of the Thirty-fifth
Series payable at Maturity shall be payable upon presentation thereof at
the office or agency of the Company in the Borough of Manhattan, The City
of New York, in such coin or currency as at the time of payment is legal
tender for public and private debts. The interest on each Bond of the
Thirty-fifth Series (other than interest payable at Maturity) shall be
payable directly to the registered owner thereof;
(d) the Bonds of the Thirty-fifth Series shall not be redeemable,
in whole or in part, at the option of the Company;
(e) (i) the Bonds of the Thirty-fifth Series are to be issued and
delivered to Ambac pursuant to the Bond Delivery Agreement relating to
such Bonds;
(ii) in the event that any 1999B Revenue Bonds are to be
redeemed pursuant to Section 4.03 of the 0000X Xxxxxxx Xxxx Xxxxxxxxx
following a Determination of Taxability (as defined in the 1999B Revenue
Bond Indenture), Bonds of the Thirty-fifth Series, in a principal amount
equal to the principal amount of 1999B Revenue Bonds to be redeemed, shall
be redeemed on the date fixed for redemption of
8
the 1999B Revenue Bonds, at the principal amount thereof plus accrued
interest to the redemption date;
(iii) in the event that all 1999B Revenue Bonds have become
immediately due and payable pursuant to Section 9.02(a) of the 0000X
Xxxxxxx Xxxx Xxxxxxxxx following the occurrence of an Event of Default (as
defined in the 1999B Revenue Bond Indenture), the Bonds of the
Thirty-fifth Series shall thereupon be redeemed at the principal amount
thereof plus accrued interest to the redemption date (the obligation to
effect such redemption being rescinded upon the rescission of such
acceleration);
(iv) the obligation of the Company to make any payment of the
principal of or interest on the Bonds of the Thirty-fifth Series shall be
deemed to have been satisfied and discharged to the extent of the sum of
(A) the amount, if any, credited under the 1999B Loan
Agreement against the obligation of the Company to make payment in
respect of the corresponding amount of principal of or interest on
the 1999B Revenue Bonds;
(B) the amount, if any, paid by the Company pursuant to the
1999B Loan Agreement in respect of such corresponding amount of
principal of or interest on the 1999B Revenue Bonds; and
(C) if Ambac shall have made a payment in respect of such
corresponding amount of principal of or interest on the 1999B
Revenue Bonds pursuant to the Policy, the amount, if any, paid by
the Company pursuant to the Insurance Agreement to reimburse Ambac
for such payment;
(v) the Trustee shall be entitled to presume that the
obligation of the Company to pay the principal of and interest on the
Bonds of the Thirty-fifth Series as the same shall become due and payable
shall have been fully satisfied and discharged unless and until it shall
have received a written notice from Ambac, signed by an authorized officer
thereof, stating that the principal of and/or interest on the Bonds of the
Thirty-fifth Series has become due and payable and has not been fully
paid, and specifying the amount of funds required to make such payment;
(f) no service charge shall be made for the registration of
transfer or exchange of Bonds of the Thirty-fifth Series;
(g) in the event of an application by Ambac for a substituted Bond
of the Thirty-fifth Series pursuant to Section 16 of the Original
Mortgage, Ambac shall not be required to provide any indemnity or pay any
expenses or charges as contemplated in said Section 16; and
(h) the Bonds of the Thirty-fifth Series shall have such other
terms as are set forth in the form of bond attached hereto as Exhibit B.
9
Anything in this Supplemental Indenture or in the Bonds of the
Thirty-fifth Series to the contrary notwithstanding, if, at the time of the
Maturity of the Bonds of the Thirty-fifth Series, the stated aggregate principal
amount of such Bonds then Outstanding shall exceed the aggregate principal
amount of 1999B Revenue Bonds then outstanding, the aggregate principal amount
of such Bonds shall be deemed to have been reduced by the amount of such excess.
(III) For all purposes of this Article II, except as otherwise
expressly provided or unless the context otherwise requires, the terms defined
below shall have the meanings specified:
"AMBAC" means Ambac Assurance Corporation, a Wisconsin-domiciled
stock insurance company or any successor thereto as obligor on the Policy.
"BOND DELIVERY AGREEMENT" means, with respect to the Bonds of the
Thirty-fifth Series, the Bond Delivery Agreement, dated December 15, 2004,
between the Company and Ambac, relating to such Bonds.
"CITY" means the City of Forsyth, Montana, a political subdivision
of the State of Montana.
"INSURANCE AGREEMENT" means the Insurance Agreement, dated as of
September 1, 1999, between Ambac and the Company, as supplemented by the
Insurance Agreement, dated as of January 1, 2002, between Ambac and the
Company.
"POLICY" means the municipal bond insurance policy issued by Ambac
with respect to the 1999B Revenue Bonds.
"1999B LOAN AGREEMENT" means the Loan Agreement, dated as of
September 1, 1999, between the City and the Company, relating to the 1999B
Revenue Bonds.
"1999B REVENUE BONDS" means the Pollution Control Revenue Refunding
Bonds (Avista Corporation Colstrip Project) Series 1999B issued by the
City.
"1999B REVENUE BOND INDENTURE" means the Trust Indenture, dated as
of September 1, 1999, between the City and JPMorgan Chase Bank, N.A.
(successor by merger to Chase Manhattan Bank and Trust Company, National
Association), trustee, relating to the 1999B Revenue Bonds.
"1999B REVENUE BOND TRUSTEE" means the trustee under the 0000X
Xxxxxxx Xxxx Xxxxxxxxx.
Copies of the 1999B Revenue Bond Indenture, the 1999B Loan Agreement
and the Policy are on file at the office of the 1999B Revenue Bond Trustee at
000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000 and at the office of the
Company at 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000.
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ARTICLE III
OUTSTANDING BONDS
Upon the delivery of this Thirty-sixth Supplemental Indenture, Bonds
of the Thirty-fourth Series in the aggregate principal amount of $66,700,000 and
Bonds of the Thirty-fifth Series in the aggregate principal amount of
$17,000,000 are to be issued and will be Outstanding, in addition to
$872,350,000 aggregate principal amount of bonds of prior series Outstanding at
the date of delivery of this Thirty-sixth Supplemental Indenture.
ARTICLE IV
PROSPECTIVE AMENDMENT
SECTION 1. The owners of the Bonds of the Thirty-fourth and
Thirty-fifth Series shall be deemed to have consented to the amendment of
Section 28 of the Original Mortgage to add at the end thereof a new paragraph
reading as follows:
Notwithstanding the foregoing, any Opinion of Counsel delivered
pursuant to subdivision (7) of this Section 28, or pursuant to any other
provision of this Indenture by reference to this Section 28, may, at the
election of the Company, omit any or all of the statements contained in
clause (a) of subdivision (7) if there shall have been delivered to the
Trustee a policy of title insurance (or endorsement thereto) issued by a
nationally recognized title insurance company, in an amount not less than
twenty-eight percent (28%)(1) of the cost or fair value to the Company
(whichever is less) of the Property Additions made the basis of such
application, insuring, in customary terms, against risk of loss sustained
or incurred by the Trustee by reason of any circumstances or conditions by
virtue of which the statements omitted from clause (a) of such Opinion of
Counsel would not have been accurate if made.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 1. The terms defined in the Original Mortgage shall, for all
purposes of this Thirty-sixth Supplemental Indenture, have the meanings
specified in the Original Mortgage.
SECTION 2. The Trustee hereby confirms its acceptance of the trusts
in the Original Mortgage declared, provided, created or supplemented and agrees
to perform the same upon the terms and conditions in the Original Mortgage set
forth, including the following:
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(1) The owners of the Bonds of the Thirty-fourth and Thirty-fifth Series
shall be deemed to have consented to the amendment contained in this Section 1
of Article II, either with the percentage shown above or with any higher
percentage.
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The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Thirty-sixth Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made by the Company solely. Each and every term and condition
contained in Article XVI of the Original Mortgage, shall apply to and form part
of this Thirty-sixth Supplemental Indenture with the same force and effect as if
the same were herein set forth in full, with such omissions, variations and
insertions, if any, as may be appropriate to make the same conform to the
provisions of this Thirty-sixth Supplemental Indenture.
SECTION 3. Whenever in this Thirty-sixth Supplemental Indenture
either of the parties hereto is named or referred to, this shall, subject to the
provisions of Articles XV and XVI of the Original Mortgage be deemed to include
the successors and assigns of such party, and all the covenants and agreements
in this Thirty-sixth Supplemental Indenture contained by or on behalf of the
Company, or by or on behalf of the Trustee, or either of them, shall, subject as
aforesaid, bind and inure to the respective benefits of the respective
successors and assigns of such parties, whether so expressed or not.
SECTION 4. Nothing in this Thirty-sixth Supplemental Indenture,
expressed or implied, is intended, or shall be construed, to confer upon, or to
give to, any person, firm or corporation, other than the parties hereto and the
holders of the bonds and coupons Outstanding under the Mortgage, any right,
remedy or claim under or by reason of this Thirty-sixth Supplemental Indenture
or any covenant, condition, stipulation, promise or agreement hereof, and all
the covenants, conditions, stipulations, promises and agreements in this
Thirty-sixth Supplemental Indenture contained by or on behalf of the Company
shall be for the sole and exclusive benefit of the parties hereto, and of the
holders of the bonds and of the coupons Outstanding under the Mortgage.
SECTION 5. This Thirty-sixth Supplemental Indenture shall be
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
SECTION 6. The titles of the several Articles of this Thirty-sixth
Supplemental Indenture shall not be deemed to be any part thereof.
------------------------
12
IN WITNESS WHEREOF, on the __th day of December __, 2004, AVISTA
CORPORATION has caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its President or one of its Vice
Presidents, and its corporate seal to be attested by its Corporate Secretary or
one of its Assistant Corporate Secretaries for and in its behalf, all in The
City of Spokane, Washington, as of the day and year first above written; and on
the ___th day of December, 2004, CITIBANK, N.A., has caused its corporate name
to be hereunto affixed, and this instrument to be signed and sealed by its
President or one of its Vice Presidents or one of its Senior Trust Officers or
one of its Trust Officers and its corporate seal to be attested by one of its
Vice Presidents or one of its Trust Officers, all in The City of New York, New
York, as of the day and year first above written.
AVISTA CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Senior Vice President
Attest:
/s/ Xxxxx X. Xxxxx
---------------------------------
Assistant Corporate Secretary
Executed, sealed and delivered
by AVISTA CORPORATION
in the presence of:
/s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxxx
---------------------------------
Xxxx X. Xxxxxxx
13
CITIBANK, N.A., AS TRUSTEE
By: /s/ Xxxxx Xxxx
---------------------------------
Xxxxx Xxxx, Vice President
Attest:
/s/ Xxxxx Xxxxx
-------------------------------------
Xxxxx Xxxxx, Assistant Vice President
Executed, sealed and delivered
by CITIBANK, N.A.,
as trustee. in the presence of:
/s/ X.X. Xxxxxxxx
-------------------------------------
X. X. Xxxxxxxx, Vice President
/s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx, Vice President
14
STATE OF WASHINGTON )
) ss.:
COUNTY OF SPOKANE )
On the 15th day of December 2004, before me personally appeared
Xxxxx Xxxxxxxx, to me known to be a Senior Vice President of AVISTA CORPORATION,
one of the corporations that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of said
Corporation for the uses and purposes therein mentioned and on oath stated that
he was authorized to execute said instrument and that the seal affixed is the
corporate seal of said Corporation.
On the 15th day of December 2004, before me, Xxx Xxxxx, a Notary
Public in and for the State and County aforesaid, personally appeared Xxxxx
Xxxxxxxx, known to me to be a Senior Vice President of AVISTA CORPORATION, one
of the corporations that executed the within and foregoing instrument and
acknowledged to me that such Corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
/s/ Xxxxx X. Xxxxx
-------------------------------------
Notary Public
Xxx Xxxxx
Notary Public
Commission Expires August 20, 0000
Xxxxx xx Xxxxxxxxxx
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 13th day of December 2004, before me personally appeared
Xxxxx Xxxx, to me known to be a Vice President of CITIBANK, N.A., one of the
corporations that executed the within and foregoing instrument, and acknowledged
said instrument to be the free and voluntary act and deed of said Corporation
for the uses and purposes therein mentioned and on oath stated that he was
authorized to execute said instrument and that the seal affixed is the corporate
seal of said Corporation.
On the 13th day of December 2004, before me, a Notary Public in and
for the State and County aforesaid, personally appeared Xxxxx Xxxx, known to me
to be an Vice President of CITIBANK, N.A., one of the corporations that executed
the within and foregoing instrument and acknowledged to me that such Corporation
executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
/s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Notary Public
XXXXXXX XXXXXX
Notary Public, State of New York
No. 01MU6086415
Qualified in Kings County
Commission Expires 1/21/07
16
EXHIBIT A
MORTGAGE, SUPPLEMENTAL INDENTURES
AND SERIES OF BONDS
MORTGAGE OR SERIES PRINCIPAL
SUPPLEMENTAL ------------------------------- PRINCIPAL AMOUNT
INDENTURE DATED AS OF NO. DESIGNATION AMOUNT ISSUED OUTSTANDING
-------------- ----------------- --- -------------------------- ------------- -----------
Original June 1, 1939 1 3-1/2% Series due 1964 $ 22,000,000 None
First October 1, 1952 2 3-3/4% Series due 1982 30,000,000 None
Second May 1, 1953 3 3-7/8% Series due 1983 10,000,000 None
Third December 1, 1955 None
Xxxxxx Xxxxx 00, 0000 Xxxx
Xxxxx July 1, 1957 4 4-7/8% Series due 1987 30,000,000 None
Sixth January 1, 1958 5 4-1/8% Series due 1988 20,000,000 None
Seventh August 1, 1958 6 4-3/8% Series due 1988 15,000,000 None
Eighth January 1, 1959 7 4-3/4% Series due 1989 15,000,000 None
Ninth January 1, 1960 8 5-3/8% Series due 1990 10,000,000 None
Tenth April 1, 1964 9 4-5/8% Series due 1994 30,000,000 None
Eleventh March 1, 1965 10 4-5/8% Series due 1995 10,000,000 None
Twelfth May 1, 1966 None
Thirteenth August 1, 1966 11 6% Series due 1996 20,000,000 None
Fourteenth April 1, 1970 12 9-1/4% Series due 2000 20,000,000 None
Fifteenth May 1, 1973 13 7-7/8% Series due 2003 20,000,000 None
Sixteenth February 1, 1975 14 9-3/8% Series due 2005 25,000,000 None
Seventeenth November 1, 1976 15 8-3/4% Series due 2006 30,000,000 None
Eighteenth June 1, 1980 None
Nineteenth January 1, 1981 16 14-1/8% Series due 1991 40,000,000 None
Twentieth August 1, 1982 17 15-3/4% Series due 60,000,000 None
1990-1992
Twenty-First September 1, 1983 18 13-1/2% Series due 2013 60,000,000 None
Twenty-Second March 1, 1984 19 13-1/4% Series due 1994 60,000,000 None
Twenty-Third December 1, 1986 20 9-1/4% Series due 2016 80,000,000 None
Twenty-Fourth January 1, 1988 21 10-3/8% Series due 2018 50,000,000 None
Twenty-Fifth October 1, 1989 22 7-1/8% Series due 2013 66,700,000 None
23 7-2/5% Series due 2016 17,000,000 None
Twenty-Sixth April 1, 1993 24 Secured Medium-Term 250,000,000 89,500,000
Notes, Series A
($250,000,000 authorized)
Twenty-Seventh January 1, 1994 25 Secured Medium-Term 161,000,000 59,000,000
Notes, Series B
($250,000,000 authorized)
Twenty-Eighth September 1, 2001 26 Collateral Series due 2002 220,000,000 None
Twenty-Ninth December 1, 2001 27 7.75% Series due 2007 150,000,000 150,000,000
Thirtieth May 1, 2002 28 Collateral Series due 2003 225,000,000 None
Thirty-First May 1, 2003 29 Collateral Series due 2004 245,000,000 None
Thirty-Second September 1, 2003 30 6.125% Series due 2013 45,000,000 45,000,000
Thirty-Third May 1, 2004 31 Collateral Series due 2005 350,000,000 350,000,000
Thirty-Fourth November 1, 2004 32 5.45% Series due 2019 90,000,000 90,000,000
Thirty-Fifth December 1, 2004 33 Collateral Series 2004A 88,850,000 88,850,000
B-1
EXHIBIT B
(FORM OF BOND)
THIS BOND IS NON-TRANSFERABLE, EXCEPT TO A SUCCESSOR
OBLIGOR ON THE POLICY REFERRED TO HEREIN.
AVISTA CORPORATION
First Mortgage Bond,
Collateral Series 2004_
REGISTERED REGISTERED
NO. _____________ $_____________
AVISTA CORPORATION, a corporation of the State of Washington
(hereinafter called the Company), for value received, hereby promises to pay to
Ambac Assurance Corporation
or registered assigned on____________________
DOLLARS
and to pay the registered owner hereof interest thereon at the respective rate
or rates as shall be in effect from time to time in respect of the 1999_ Revenue
Bonds (as defined in the Supplemental Indenture hereinafter referred to) until
the Company's obligation with respect to the payment of such principal shall
have been discharged; and such interest shall be payable at the same times as
interest is payable on the 1999_ Revenue Bonds. The principal of and premium, if
any, and interest on this bond payable at Maturity (as hereinafter defined)
shall be payable upon presentation hereof at the office or agency of the Company
in the Borough of Manhattan, The City of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
public and private debts. The interest on this bond (other than interest payable
at Maturity) shall be paid directly to the registered owner hereof. Interest
payable at Maturity shall be paid to the person to whom principal shall be paid.
As used herein, the term "Maturity" shall mean the date on which the principal
of this bond becomes due and payable, whether at stated maturity, upon
redemption or acceleration, or otherwise.
This bond is one of an issue of bonds of the Company issuable in
series and is one of a series known as its First Mortgage Bonds, Collateral
Series 2004_, all bonds of all such issue of series being issued and issuable
under and equally secured (except insofar as any sinking or other fund,
established in accordance with the provisions of the Mortgage hereinafter
mentioned, may afford additional security for the bonds of any particular
series) by a Mortgage and Deed of Trust, dated as of June 1, 1939, executed by
the Company (formerly known as The Washington Water Power Company) to City Bank
Farmers Trust Company and Xxxxx X.
B-1
Xxxxxx, as Trustees (Citibank, N.A., successor Trustee to both said Trustees).
Such mortgage and deed of trust has been amended and supplemented by various
supplemental indentures, including the Thirty-sixth Supplemental Indenture,
dated as of December 1, 2004 (the "Thirty-sixth Supplemental Indenture") and, as
so amended and supplemented, is herein called the "Mortgage". Reference is made
to the Mortgage for a description of the property mortgaged and pledged, the
nature and extent of the security, the rights of the holders of the bonds and of
the Trustee in respect thereof, the duties and immunities of the Trustee and the
terms and conditions upon which the bonds are and are to be secured and the
circumstances under which additional bonds may be issued. By its acceptance of
this bond, the holder hereof is deemed to have consented and agreed to all of
the terms and provisions of the Mortgage. The Mortgage may be modified or
altered by affirmative vote of the holders of at least 60% in principal amount
of the bonds outstanding under the Mortgage, considered as one class, or, if the
rights of one or more, but less than all, series of bonds then outstanding are
to be affected, then such modification or alteration may be effected with the
affirmative vote only of 60% in principal amount of the bonds outstanding of the
series so to be affected, considered as one class, and, furthermore, for limited
purposes, the Mortgage may be modified or altered without any consent or other
action of holders of any series of bonds. No modification or alteration shall,
however, permit an extension of the Maturity of the principal of, or interest
on, this bond or a reduction in such principal or the rate of interest hereon or
any other modification in the terms of payment of such principal or interest or
the creation of any lien equal or prior to the lien of the Mortgage or deprive
the holder of a lien on the mortgaged and pledged property without the consent
of the holder hereof.
The bonds of this series are not redeemable, in whole or in part, at
the option of the Company.
The bonds of this series have been issued and delivered to Ambac
pursuant to the Insurance Agreement (as such terms are defined in the
Thirty-sixth Supplemental Indenture).
In the event that any 1999_ Revenue Bonds are to be redeemed
pursuant to Section 4.03 of the 0000_ Xxxxxxx Xxxx Xxxxxxxxx (as defined in the
Thirty-sixth Supplemental Indenture) following a Determination of Taxability (as
defined in the 1999_ Revenue Bond Indenture), bonds of this series, in a
principal amount equal to the principal amount of 1999_ Revenue Bonds to be
redeemed, shall be redeemed on the date fixed for redemption of the 1999_
Revenue Bonds, at the principal amount thereof plus accrued interest to the
redemption date.
In the event that all 1999_ Revenue Bonds have become immediately
due and payable pursuant to Section 9.02(a) of the 0000_ Xxxxxxx Xxxx Xxxxxxxxx
following the occurrence of an Event of Default (as defined in the 1999_ Revenue
Bond Indenture), the bonds of the this series shall thereupon be redeemed at the
principal amount thereof plus accrued interest to the redemption date (the
obligation to effect such redemption being rescinded upon the rescission of such
acceleration);
The obligation of the Company to make any payment of the principal
of or interest on the bonds of this series shall be deemed to have been
satisfied and discharged to the extent of the sum of:
B-2
(a) the amount, if any, credited under the 1999A Loan Agreement
Indenture against the obligation of the Company to make payment in respect
of the corresponding amount of principal of or interest on the 1999A
Revenue Bonds;
(b) the amount, if any, paid by the Company pursuant to the 1999A
Loan Agreement in respect of such corresponding amount of principal of or
interest on the 1999A Revenue Bonds; and
(c) if Ambac shall have made a payment in respect of such
corresponding amount of principal of or interest on the 1999A Revenue
Bonds pursuant to the Policy, the amount, if any, paid by the Company
pursuant to the Insurance Agreement to reimburse Ambac for such payment.
Anything in this bond to the contrary notwithstanding, if, at the
time of the Maturity of the bonds of this series, the stated aggregate principal
amount of such bonds then outstanding shall exceed the aggregate principal
amount of 1999_ Revenue Bonds then outstanding, the aggregate principal amount
of such bonds shall be deemed to have been reduced by the amount of such excess.
The principal hereof may be declared or may become due prior to the
stated maturity date on the conditions, in the manner and at the time set forth
in the Mortgage, upon the occurrence of a Completed Default as in the Mortgage
provided.
As provided in the Mortgage and subject to certain limitations
therein set forth, this bond or any portion of the principal amount hereof will
be deemed to have been paid if there has been irrevocably deposited with the
Trustee moneys or direct obligations of or obligations guaranteed by the United
States of America, the principal of and interest on which when due, and without
regard to any reinvestment thereof, will provide moneys which, together with
moneys so deposited, will be sufficient to pay when due the principal of and
premium, if any, and interest on this bond when due.
The Mortgage contains terms, provisions and conditions relating to
the consolidation or merger of the Company with or into, and the conveyance or
other transfer, or lease, of assets to, another Corporation and to the
assumption by such other Corporation, in certain circumstances, of all of the
obligations of the Company under the Mortgage and on the bonds secured thereby.
This bond is non-transferable except as required to effect transfer
to any successor obligor on the Policy, any such transfer to be made at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, upon surrender and cancellation of this bond, together with a written
instrument of transfer whenever required by the Company duly executed by the
registered owner or by its duly authorized attorney, and, thereupon, a new fully
registered bond of the same series for a like principal amount will be issued to
the transferee in exchange herefor as provided in the Mortgage. The Company and
the Trustee may deem and treat the person in whose name this bond is registered
as the absolute owner hereof for the purpose of receiving payment and for all
other purposes.
B-3
In the manner prescribed in the Mortgage, any bonds of this series,
upon surrender thereof for cancellation at the office or agency of the Company
in the Borough of Manhattan, The City of New York, are exchangeable for a like
aggregate principal amount of bonds of the same series of other authorized
denominations.
No recourse shall be had for the payment of the principal of or
interest on this bond against any incorporator or any past, present or future
subscriber to the capital stock, stockholder, officer or director of the Company
or of any predecessor or successor corporation, as such, either directly or
through the Company or any predecessor or successor corporation, under any rule
of law, statute or constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, subscribers, stockholders,
officers and directors being released by the holder or owner hereof by the
acceptance of this bond and being likewise waived and released by the terms of
the Mortgage.
This bond shall not become obligatory until Citibank, N.A., the
Trustee under the Mortgage, or its successor thereunder, shall have signed the
form of certificate endorsed hereon.
IN WITNESS WHEREOF, AVISTA CORPORATION has caused this bond to be
signed in its corporate name by its President or one of its Vice Presidents by
his signature or a facsimile thereof, and its corporate seal to be impressed or
imprinted hereon and attested by its Corporate Secretary or one of its Assistant
Corporate Secretaries by his signature or a facsimile thereof.
Dated:
AVISTA CORPORATION
By:_____________________________________
ATTEST:____________________________________
B-4
TRUSTEE'S CERTIFICATE
This bond is one of the bonds, of the series herein designated,
described or provided for in the within-mentioned Mortgage.
CITIBANK, N.A.
Trustee
By:_____________________________________
Authorized Officer
B-5
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
_______________________________________________________________________
[please insert social security or other identifying number of assignee]
_______________________________________________________________________
[please print or typewrite name and address of assignee]
_______________________________________________________________________
the within bond of AVISTA CORPORATION and does hereby irrevocably constitute and
appoint _______________, Attorney, to transfer said bond on the books of the
within-mentioned Company, will full power of substitution in the premises.
Dated: _______________
__________________
Notice: The signature to this assignment
must correspond with the name as written
upon the face of the bond in every
particular without alteration or
enlargement or any change whatsoever.
B-6
