Exhibit 4.5
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FIRST SUPPLEMENTAL TRUST INDENTURE
BETWEEN
CITY OF FORSYTH, MONTANA
AND
X.X. XXXXXX TRUST COMPANY, N.A.,
(successor in interest to Chase Manhattan Bank and Trust Company,
National Association) as Trustee
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Dated as of May 1, 2005
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Relating to
$17,000,000
City of Forsyth, Montana
Pollution Control Revenue Refunding Bonds
(Avista Corporation Colstrip Project)
Series 1999B
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Amending and restating the Trust Indenture, dated as of September 1, 1999,
between the City of Forsyth, Montana and X.X. Xxxxxx Trust Company, N.A.
(successor in interest to Chase Manhattan Bank and Trust Company, National
Association).
Series 1999B First Supplemental Trust Indenture
TABLE OF CONTENTS
SECTION HEADING PAGE
PARTIES................................................................................................. 1
Recitals................................................................................................ 1
ARTICLE I DEFINITIONS.................................................................. 2
Section 1.01. Definitions Contained in the Original Indenture.............................. 2
Section 1.02. New Definitions.............................................................. 2
ARTICLE II AMENDMENTS OF ORIGINAL INDENTURE............................................. 3
Section 2.01. Amendment and Restatement of the Original Indenture.......................... 3
ARTICLE III MISCELLANEOUS................................................................ 4
Section 3.01. Trustee Representations...................................................... 4
Section 3.02. Execution of Counterparts.................................................... 4
Section 3.03. Effective Date; Original Indenture Remains Effective as Amended.............. 4
Testimonium............................................................................................. 5
Signatures.............................................................................................. 5
EXHIBIT A -- CONSENT OF COMPANY
EXHIBIT B -- CONSENT OF PROVIDER
Series 1999B First Supplemental Trust Indenture
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FIRST SUPPLEMENTAL TRUST INDENTURE
THIS FIRST SUPPLEMENTAL TRUST INDENTURE, dated as of May 1, 2005 (the
"First Supplemental Indenture"), amending and restating that certain Trust
Indenture, dated as of September 1, 1999 (the "Original Indenture"), each
between the CITY OF FORSYTH, MONTANA (the "Issuer"), a duly organized and
existing political subdivision of the State of Montana and X.X. XXXXXX TRUST
COMPANY, N.A., (successor in interest to Chase Manhattan Bank and Trust Company,
National Association) a national banking association (the "Trustee"),
WITNESSETH:
WHEREAS, the Issuer has previously issued its Pollution Control Revenue
Refunding Bonds (Avista Corporation Colstrip Project), Series 1999B (the
"Bonds"), in the aggregate principal amount of $17,000,000, pursuant to the
Original Indenture; and
WHEREAS, in order to comply with certain covenants made by Avista
Corporation (the "Company") in that certain Insurance Agreement, dated as of
September 1, 1999, between the Company and the Provider, the Company desires now
to provide additional security for the payment of the principal of, premium, if
any, and interest on the Bonds by delivering to the Trustee, for the account of
the Issuer, the Company's first mortgage bonds (the "First Mortgage Bonds") or
other suitable security that may be provided by the Company; and
WHEREAS, the Issuer deems it necessary and desirable to enter into this
First Supplemental Indenture in order to amend and restate the Original
Indenture to provide for such First Mortgage Bonds to secure the Bonds and to
make other amendments to the Original Indenture; and
WHEREAS, Section 12.01(b) of the Original Indenture provides that the
Issuer and the Trustee may, without the consent of the Owners of the Bonds,
enter into a Supplemental Indenture "...to assign or pledge additional security
for any of the Bonds...which in the judgment of the Trustee in not materially
adverse to the Owners of the Bonds;" and
WHEREAS, the Favorable Opinion of Bond Counsel required by Section 12.01
of the Indenture has been delivered to the Issuer and the Trustee; and
WHEREAS, the Consent of the Company, attached as Exhibit A, required by
Section 12.04 of the Original Indenture has been delivered to the Issuer and the
Trustee; and
WHEREAS, the Consent of the Provider, attached as Exhibit B, required by
Section 12.04 of the Original Indenture has been delivered to the Issuer and the
Trustee; and
WHEREAS, the Trustee has provided written notice of this First
Supplemental Indenture to Moody's, S&P, the Provider, the Remarketing Agent and
the Owners of all Outstanding Bonds, as provided in Section 12.01 of the
Original Indenture; and
Series 1999B First Supplemental Trust Indenture
WHEREAS, in the judgment of the Trustee, the assignment and pledge of the
First Mortgage Bonds and the associated amendment and restatement of the
Original Indenture is not materially adverse to the Owners of the Bonds; and
WHEREAS, the execution and delivery of this First Supplemental Indenture
has been duly authorized by the governing body of the Issuer and all things
necessary to make this First Supplemental Indenture a valid and binding
agreement have been done;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions Contained in the Original Indenture. Except as
otherwise provided in this First Supplemental Indenture, words and terms that
are defined in the Original Indenture shall have the same meanings ascribed to
them therein when used herein, unless the context or use indicates a different
meaning or intent.
Section 1.02. New Definitions. The following terms as used in this First
Supplemental Indenture shall have the following meanings:
"First Supplemental Indenture" means this First Supplemental Trust
Indenture, amending and restating the Original Indenture.
"First Supplemental Loan Agreement" means that certain First
Supplemental Loan Agreement, dated as of May 1, 2005, between the Issuer
and the Company, amending and restating the Original Loan Agreement.
"Indenture" means the Original Indenture, as amended and restated by
this First Supplemental Indenture.
"Original Indenture" means the Trust Indenture, dated as of
September 1, 1999, between the Issuer and the Trustee, authorizing, among
other things, the issuance of the Bonds.
"Original Loan Agreement" means that certain Loan Agreement, dated
as of September 1, 1999, between the Issuer and the Company.
"Trustee" means X.X. Xxxxxx Trust Company, N.A. (successor in
interest to Chase Manhattan Bank and Trust Company, National Association).
Series 1999B First Supplemental Trust Indenture
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ARTICLE II
AMENDMENT OF ORIGINAL INDENTURE
Section 2.01. Amendment and Restatement of the Original Indenture. The
Original Indenture is hereby amended and restated to read as follows:
Series 1999B First Supplemental Trust Indenture
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[INSERT AMENDED AND RESTATED INDENTURE]
Series 1999B First Supplemental Trust Indenture
ARTICLE III
MISCELLANEOUS
Section 3.01. Trustee Representations. With the exception of the First
Supplemental Loan Agreement, the Trustee hereby represents that it has not
previously entered into any amendments to the Original Indenture or previously
consented to any amendments to the Original Loan Agreement. The Trustee further
represents that, according to its records, $17,000,000 principal amount of the
Bonds are Outstanding.
Section 3.02. Execution of Counterparts. This First Supplemental Indenture
may be executed in any number of counterparts, each of which, when so executed
and delivered, shall be an original and all of which shall constitute but one
and the same instrument.
Section 3.03. Effective Date; Original Indenture Remains Effective as
Amended. The provisions of this First Supplemental Indenture shall become
effective immediately upon the execution and delivery hereof. This First
Supplemental Indenture and all terms and provisions herein contained shall form
a part of the Original Indenture as fully and with the same effect as if all
such terms and provisions had been set forth in the Original Indenture, and the
Original Indenture, as amended and restated hereby, remains in full force and
effect in accordance with the terms and provisions thereof.
Section 3.04. No Recitals, et. Except for the recitals contained herein
expressly made by the Trustee, the recitals contained herein shall be taken as
the statements of the Issuer, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this First Supplemental Indenture.
(Signature page follows.)
Series 1999B First Supplemental Trust Indenture
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the day and year first above written.
CITY OF FORSYTH, MONTANA
By /s/ Xxxxxx Xxxxxx
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Mayor Pro-Tem
ATTEST AND COUNTERSIGN:
By /s/ Xxxxx Xxxxxxxxx
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City Clerk-Treasurer
[SEAL]
Series 1999B First Supplemental Trust Indenture
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X.X. XXXXXX TRUST COMPANY, N.A.,
as Trustee
By /s/ Xxxx Xxxx Xxxxxx
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Vice President
Series 1999B First Supplemental Trust Indenture
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EXHIBIT A
CONSENT OF COMPANY
Responsive to Section 12.04 of the Trust Indenture, dated as of September
1, 1999 (the "Original Indenture"), between the City of Forsyth, Montana (the
"Issuer"), and X.X. Xxxxxx Trust Company, N.A. (successor in interest to Chase
Manhattan Bank and Trust Company, National Association) (the "Trustee"), Avista
Corporation hereby consents to the execution and delivery of the attached First
Supplemental Trust Indenture, dated as of May 1, 2005, between the Issuer and
the Trustee, and the resultant amendment to and restatement of the Original
Indenture.
AVISTA CORPORATION
By /s/ Xxxxx Xxxxxx
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Authorized Company Representative
Series 1999B First Supplemental Trust Indenture
A-1
EXHIBIT B
CONSENT OF PROVIDER
Responsive to Section 12.04 of the Trust Indenture, dated as of September
1, 1999 (the "Original Indenture"), between the City of Forsyth, Montana (the
"Issuer"), and X.X. Xxxxxx Trust Company, N.A. (successor in interest to Chase
Manhattan Bank and Trust Company, National Association) (the "Trustee"), Ambac
Assurance Corporation, as Provider, hereby consents to the execution and
delivery of the attached First Supplemental Trust Indenture, dated as of May 1,
2005, between the Issuer and the Trustee, and the resultant amendment to and
restatement of the Original Indenture.
AMBAC ASSURANCE CORPORATION
By /s/ Xxxxxx Xxxxxxxx
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Authorized Representative
Series 1999B First Supplemental Trust Indenture
B-1
