DISCHARGE OF OBLIGOR UNDER INDENTURE
Exhibit 10.3
DISCHARGE OF OBLIGOR UNDER INDENTURE
THIS DISCHARGE OF OBLIGOR UNDER INDENTURE is dated as of June 22, 2007, between Energy
West, Incorporated, a corporation duly organized and existing under the laws of the State of
Montana (the “Obligor”), having its principal place of business at 0 Xxxxx Xxxxxx Xxxxx, Xxxxx
Xxxxx, Xxxxxxx 00000, and HSBC Bank USA, National Association, as successor Trustee (the
“Trustee”), having its principal corporate trust office at 000 Xxxxx Xxxxxx, Xxxx: Corporate Trust
and Loan Agency, Xxx Xxxx, XX 00000.
WHEREAS, the Trustee is successor Trustee under an Indenture of Trust dated as of September 1,
1992 (the “Indenture”) relating to Industrial Development Bonds (Great Falls Gas Company Project)
issued by Cascade County, Montana, on behalf of Obligor, of which the only bonds remaining
outstanding consist of approximately $775,000 in principal amount of Series 1992B bonds (the
“Bonds”); and
WHEREAS, the Indenture affords the Obligor the right, pursuant to Section 3-6(b) thereof, to
redeem all the Bonds prior to maturity subject to the terms and conditions of the Indenture; and
WHEREAS, the Obligor, on May 11, 2007, provided notice to the Trustee of its intention to
redeem all the Bonds on October 1, 2007 (the “Redemption Date”) in compliance with Section 3-6(e)
of the Indenture; and
WHEREAS, the Obligor has, on May 11, 2007, requested that the Trustee give notice of
redemption of the Bonds to each Owner of the Bonds and to certain specified financial institutions
and information services, all in compliance with Section 2-6 of the Indenture; and
WHEREAS, on June 21, 2007, the Obligor has deposited with the Trustee collected funds in an
amount sufficient to pay in full the principal amount of the Bonds and all interest to become due
thereon through the Redemption Date, along with all other sums payable by the Obligor pursuant to
the Indenture, in compliance with the requirements of Sections 7-1 and 7-2 of the Indenture; and
WHEREAS, the Obligor has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel in compliance with Section 1-3 of the Indenture; and
WHEREAS, Section 7-2 of the Indenture provides that upon deposit with the Trustee of
sufficient cash to pay the Bonds in full to the Redemption Date, all liability of the Obligor shall
forthwith cease, terminate and be completely discharged, and that Owners of the Bonds shall
thereafter have no claim whatsoever against the Obligor, but shall have a claim solely upon the
cash so deposited with the Trustee for payment of the Bonds and shall not be entitled to any other
benefit of or security under the Indenture;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises herein contained,
the receipt and adequacy of which are hereby acknowledged, it is mutually covenanted and agreed as
follows:
ARTICLE I
DISCHARGE OF OBLIGOR
DISCHARGE OF OBLIGOR
1.1 The Obligor is hereby fully released and discharged from all liability to the Owners of
the Bonds for payment thereon and from all liability under the Indenture; provided, however, that
notwithstanding the full discharge of Obligor under the Indenture, the rights and obligations of
the Obligor under Sections 2-13 and the rights benefits and protections afforded to the Trustee
under Sections 9-1 and 9-2 shall survive until the Bonds are no longer outstanding. On the
Redemption Date, the Bonds shall be considered paid and shall cease to be outstanding and interest
on the Bonds shall cease to accrue. Thereafter, the Obligor’s rights and obligations only under
Sections 2-13 and 9-1 and the indemnity obligations under 9-2 of the Indenture shall survive.
1.2 All liens, mortgages or other security interests on any and all property and assets of the
Obligor which the Trustee holds or may hold in connection with the Indenture are hereby released,
discharged and terminated. Except as otherwise provided in Section 1.1 hereof, all obligations of
the Obligor under the Indenture are deemed fully satisfied, discharged, terminated and null and
void. The Trustee agrees to take all actions and to execute all documents which the Obligor
reasonably deems necessary or appropriate to release all liens of the Trustee on any property or
assets of the Obligor, including, but not limited to, the execution of releases and re-conveyance
of mortgages or deeds of trust or UCC-3 termination statements with respect to any and all such
collateral.
1.3 The Trustee agrees to effectuate the notices of redemption as per the Obligors instruction
letter dated May 11, 2007 for the Redemption Date on October 1, 2007, as requested by Obligor and
in accordance with Section 2-6 of the Indenture, to pay the Bonds as requested by Obligor and in
accordance with Section 7-2 of the Indenture and to destroy all canceled Bonds held by the Trustee
in a manner customarily used to destroy such Bonds and furnish the Obligor a certificate stating
that such Bonds have been destroyed in accordance with Section 2-9 of the Indenture.
ARTICLE II
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
2.1 Capitalized terms not otherwise defined herein shall have the meanings ascribed such terms
in the Indenture.
2.2 This instrument shall be governed by, and construed in accordance with, the laws of the
State of Montana.
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2.3 This instrument may be executed in any number of counterparts, each of which so executed
shall be deemed to be an original, but all of which shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Discharge of Obligor Under Indenture
to be duly executed as of the date written above.
ENERGY WEST, INCORPORATED |
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By: | /s/ Xxxxx X. Xxxxxxxx | |||
Xxxxx X. Xxxxxxxx | ||||
President and Chief Executive Officer | ||||
HSBC BANK USA, NATIONAL ASSOCIATION |
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By: | /s/ Herawatte Alli | |||
Herawatte Alli | ||||
Assistant Vice President | ||||
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