Exhibit 4.4
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FIRST SUPPLEMENTAL LOAN AGREEMENT
BETWEEN
CITY OF FORSYTH, MONTANA
AND
AVISTA CORPORATION
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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 that certain Loan Agreement, dated as of September
1, 1999, between the City of Forsyth, Montana and Avista Corporation.
Series 1999B First Supplemental Loan Agreement
TABLE OF CONTENTS
SECTION PAGE
RECITALS................................................................................................ 1
ARTICLE I DEFINITIONS................................................................................ 2
Section 1.01. Definitions Contained in the Original Loan Agreement and the
Indenture.......................................................................... 2
Section 1.02. New Definitions.................................................................... 2
ARTICLE II REPRESENTATIONS AND WARRANTIES............................................................. 2
Section 2.01. Representations and Warranties of the Issuer....................................... 2
Section 2.02. Representations and Warranties of the Company...................................... 3
ARTICLE III AMENDMENT OF LOAN AGREEMENT................................................................ 4
Section 3.01. Amendment and Restatement of the Original Loan Agreement........................... 4
ARTICLE IV MISCELLANEOUS.............................................................................. 5
Section 4.01. Execution of Counterparts.......................................................... 5
Section 4.02. Effective Date Applicability of the Agreement...................................... 5
Section 4.03. Governing Law...................................................................... 5
Section 4.04. Severability....................................................................... 5
Testimonium............................................................................................. 6
Signatures and Seals.................................................................................... 6
Consent of Trustee...................................................................................... 8
Series 1999B First Supplemental Loan Agreement
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This FIRST SUPPLEMENTAL LOAN AGREEMENT, dated as of May 1, 2005 the
("First Supplemental Loan Agreement"), is between the CITY OF FORSYTH, MONTANA,
a political subdivision duly organized and existing under the Constitution and
laws of the State of Montana (the "Issuer"), and AVISTA CORPORATION, a
corporation duly organized under the laws of the State of Washington, and duly
qualified to conduct business in the State of Montana (the "Company").
RECITALS:
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 a Trust
Indenture, dated as of September 1, 1999 (the "Original Indenture"), as amended
and restated by a First Supplemental Trust Indenture, dated as of May 1, 2005
(the "First Supplemental Indenture," and the Original Indenture, as amended and
restated by the First Supplemental Indenture, the "Indenture"), each between the
Issuer and X.X. Xxxxxx Trust Company, N.A. (successor in interest to Chase
Manhattan Bank and Trust Company, National Association), as trustee (the
"Trustee"); and
WHEREAS, in connection with the issuance of the Bonds, the Issuer and the
Company entered into the Loan Agreement, dated as of September 1, 1999 (the
"Original Loan Agreement"); and
WHEREAS, in order to comply with certain covenants made by 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, Section 9.04 of the Original Loan Agreement provides that the
Original Loan Agreement may be amended by written agreement of the Issuer and
the Company and as otherwise provided in the Indenture; and
WHEREAS, Section 12.05(e) of the Indenture provides that the Original Loan
Agreement may be amended without the consent or notice to the owners "...to
assign or pledge additional security for the Bonds..., which shall not
materially adversely affect the interest of the Owners of the Bonds;" and
WHEREAS, the assignment and pledge of the First Mortgage Bonds and the
amendment and restatement of the Original Loan Agreement does not materially
adversely affect the interest of the owners of the Bonds; and
Series 1999B First Supplemental Loan Agreement
WHEREAS, Section 12.05 of the Indenture requires the Consent of the
Provider (unless a Provider default shall have occurred and be continuing) and
permits the Trustee to consent to the modifying, altering, amending or
supplementing of the Agreement; and
WHEREAS, the Provider and Trustee have consented to this First
Supplemental Loan Agreement; and
WHEREAS, the Issuer and the Company desire to amend and restate the
Original Loan Agreement as provided herein; and
WHEREAS, there has been delivered to the Issuer, the Provider and the
Trustee, the Favorable Opinion of Bond Counsel required by Section 12.05 of the
Indenture; and
WHEREAS, the execution and delivery of this First Supplemental Loan
Agreement have been duly authorized by the governing body of the Issuer and all
things necessary to make this First Supplemental Loan Agreement a valid and
binding agreement have been done;
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby
and in consideration of the premises, do hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions Contained in the Original Loan Agreement and the
Indenture. The words and terms defined in the Original Loan Agreement and the
Indenture shall for all purposes of this First Supplemental Loan Agreement have
the meanings specified in such Original Loan Agreement or in the Indenture, as
applicable, when used herein, unless the context clearly requires otherwise.
Section 1.02. New Definitions. Unless otherwise defined herein, the
following words and terms as used in this First Supplemental Loan Agreement
shall have the following meanings:
"First Supplemental Loan Agreement" means this First Supplemental
Loan Agreement.
"Loan Agreement" shall mean, the Original Loan Agreement, as amended
and restated by this First Supplemental Loan Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. Representations and Warranties of the Issuer. The Issuer
makes the following representations and warranties as the basis for the
undertakings on the part of the Company contained herein:
Series 1999B First Supplemental Loan Agreement
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(a) The Issuer is a municipal corporation and political subdivision
duly organized and existing under the Constitution and laws of the State;
(b) The Bonds are currently Outstanding in the aggregate principal
amount of $17,000,000.
(c) The Issuer has the power under the Act to enter into this First
Supplemental Loan Agreement, the First Supplemental Indenture and to
perform and observe the agreements and covenants on its part contained
herein and therein, and by proper action has duly authorized the execution
and delivery of this First Supplemental Loan Agreement and the First
Supplemental Indenture;
(d) To the knowledge of the Issuer, the execution and delivery of
this First Supplemental Loan Agreement and the First Supplemental
Indenture by the Issuer do not, and consummation of the transactions
contemplated hereby and thereby and fulfillment of the terms hereof and
thereof by the Issuer will not, result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Issuer is now
a party or by which it is now bound, or any order, rule or regulation
applicable to the Issuer of any court or of any regulatory body or
administrative agency or other governmental body having jurisdiction over
the Issuer or over any of its properties, or any statute of any
jurisdiction applicable to the Issuer;
(e) No consent, approval, authorization or other order of any
regulatory body or administrative agency or other governmental body is
legally required for the Issuer's execution and delivery of this First
Supplemental Loan Agreement or the First Supplemental Indenture;
(f) The Original Loan Agreement has not been previously amended or
supplemented and, as of the date hereof, is still in full force and
effect;
(g) Except as amended and restated by the First Supplemental
Indenture, the Original Indenture has not previously been amended,
supplemented or restated and is still in full force and effect; and
(h) X.X. Xxxxxx Trust Company, N.A., is the Trustee under the
Indenture.
Section 2.02. Representations and Warranties of the Company. The Company
makes the following representations and warranties as the basis for the
undertakings on the part of the Issuer contained herein;
(a) The Company is a corporation duly organized and validly existing
under the laws of the State of Washington and is duly qualified to conduct
business in the State;
(b) The Company has the requisite power to enter into this First
Supplemental Loan Agreement and to perform and observe the agreements and
covenants on its part
Series 1999B First Supplemental Loan Agreement
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contained herein and by proper action has duly authorized the execution
and delivery of this First Supplemental Loan Agreement;
(c) Neither the execution and delivery of this First Supplemental
Loan Agreement nor the fulfillment of or compliance with the terms and
conditions of this First Supplemental Loan Agreement will result in a
breach of or constitute a default under any of the terms, conditions or
provisions of any restriction or any agreement or instrument to which the
Company is now a party or by which it is bound, or constitute a default
under any of the foregoing, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of the
property or assets of the Company prohibited under the terms of any
instrument;
(d) No event has occurred and is continuing under the provisions of
either the Original Loan Agreement, or to the knowledge of the Company,
under the provisions of the Indenture, which event now constitutes, or
with the lapse of time or the giving of notice, or both, would constitute
an Event of Default under either the Loan Agreement or the Indenture;
(e) Other than those consents, approvals or authorizations already
obtained, no consent, approval, authorization or other order of any
regulatory body or administrative agency or other governmental body is
legally required for the Company's execution and delivery of this First
Supplemental Loan Agreement;
(f) The Original Loan Agreement has not been previously amended or
supplemented and as of the date hereof is still in full force and effect;
and
(g) The Bonds are currently Outstanding in the aggregate principal
amount of $17,000,000 and bear interest at a Term Interest Rate.
ARTICLE III
AMENDMENT OF LOAN AGREEMENT
Section 3.01. Amendment and Restatement of the Original Loan Agreement.
The Original Loan Agreement is hereby amended and restated to read as follows:
Series 1999B First Supplemental Loan Agreement
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[INSERT AMENDED AND RESTATED LOAN AGREEMENT]
Series 1999B First Supplemental Loan Agreement
ARTICLE IV
MISCELLANEOUS
Section 4.01. Execution of Counterparts. This First Supplemental Loan
Agreement may be simultaneously executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 4.02. Effective Date Applicability of the Agreement. The
provisions of this First Supplemental Loan Agreement shall become effective
immediately upon the execution and delivery hereof. Except as amended and
restated by this First Supplemental Loan Agreement, all of the provisions of the
Original Loan Agreement shall remain in full force and effect.
Section 4.03. Governing Law. The laws of the State shall govern the
construction and enforcement of this First Supplemental Loan Agreement.
Section 4.04. Severability. In the event any provision of this First
Supplemental Loan Agreement shall be held invalid or unenforceable by any court
of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
Series 1999B First Supplemental Loan Agreement
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Loan Agreement to be duly executed as of the day and year first above written.
AVISTA CORPORATION
By /s/ Xxxxx Xxxxxx
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Vice President and Treasurer
Series 1999B First Supplemental Loan Agreement
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CITY OF FORSTYH, MONTANA
[SEAL]
By /s/ Xxxxxx Xxxxxx
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Mayor Pro-Tem
ATTEST:
By /s/ Xxxxx Xxxxxxxxx
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City Clerk-Treasurer
Series 1999B First Supplemental Loan Agreement
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CONSENT OF TRUSTEE
Responsive to Section 12.05 of the Trust Indenture, dated as of September
1, 1999, 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), as trustee (the "Trustee"), the Trustee hereby
consents to the execution and delivery of the attached First Supplemental Loan
Agreement and the resultant amendment to and restatement of the Loan Agreement,
dated as of September 1, 1999, between the Issuer and Avista Corporation.
X.X. XXXXXX TRUST COMPANY, N.A.,
as Trustee
By /s/ Xxxx Xxxx Xxxxxx
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Vice President
Series 1999B First Supplemental Loan Agreement
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CONSENT OF PROVIDER
Responsive to Section 12.05 of the Trust Indenture, dated as of September
1, 1999, 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), as trustee, Ambac Assurance Corporation, as
Provider, hereby consents to the execution and delivery of the attached First
Supplemental Loan Agreement and the resultant amendment to and restatement of
the Loan Agreement, dated as of September 1, 1999, between the City of Forsyth,
Montana and Avista Corporation.
AMBAC ASSURANCE CORPORATION
By /s/ Xxxxxx Xxxxxxxx
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Authorized Representative
Series 1999B First Supplemental Loan Agreement
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