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Exhibit 4.3
CONFORMED COPY
AVISTA
CORPORATION
TO
CITIBANK, N.A.
As Successor Trustee under
Mortgage and Deed of Trust,
dated as of June 1, 1939
Forty-fifth Supplemental
Indenture
Providing among other things for a series of
bonds designated
"First Mortgage Bonds, Collateral Series
2008B"
Due December 30, 2009
Dated as of December 1,
2008
FORTY-FIFTH SUPPLEMENTAL
INDENTURE
THIS INDENTURE , dated as of the 1st day of December, 2008,
between AVISTA CORPORATION (formerly known as The Washington Water
Power Company), a corporation of the State of Washington, whose
post office address is 1411 East Mission Avenue, Spokane,
Washington 99202 (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
388 Greenwich Street, 14 th
Floor, New York, New York 10013 (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 "Forty-fifth 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, Francis
M. Pitt (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 Forty-fourth Supplemental Indentures, being herein
sometimes called the " Mortgage "); and
WHEREAS the Original Mortgage and the First through Forty-second
Supplemental Indentures have been appropriately filed or recorded
in various official records in the States of Washington, Idaho,
Montana and Oregon, as set forth in the First through Forty-third
Supplemental Indentures and the Instrument of Further Assurance,
dated December 15, 2001, hereinafter referred to; and
WHEREAS the Forty-third Supplemental Indenture, dated as of
November 1, 2008 has been appropriately filed or recorded, or
delivered for filing or recording, in the various official records
in the States of Washington, Idaho, Montana and Oregon, information
as to such filing and recording to be set forth in a subsequent
supplemental indenture; and
WHEREAS the Forty-fourth Supplemental Indenture, dated as of
December 1, 2008 is to be appropriately filed or recorded in
the States of Washington, Idaho, Montana and Oregon; and
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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 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, 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 a new series of Bonds;
and
WHEREAS the execution and delivery by the Company of this
Forty-fifth Supplemental Indenture, and the terms of the Bonds of
the Forty-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 Forty-fifth 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
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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 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.
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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.
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 of the Mortgage 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
Forty-fifth 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
Forty-fifth Series of Bonds
SECTION 1. (I) There shall be a series of bonds designated
"Collateral Series 2008B" (herein sometimes referred to as the
"Forty-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 D hereto. Bonds of the Forty-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
Forty-fifth Series shall mature on December 30, 2009 and shall
bear interest, be redeemable and have such other terms and
provisions as set forth below.
(II) The Bonds of the Forty-fifth Series shall have the
following terms and characteristics:
(a) the Bonds of the Forty-fifth Series shall be initially
authenticated and delivered under the Mortgage in the aggregate
principal amount of $17,000,000;
(b) the Bonds of the Forty-fifth Series shall bear interest at
the rate of eight per centum (8%) per annum; interest on such
Bonds shall accrue from and including the date of the initial
authentication and delivery thereof, except as otherwise provided
in the form of Bond attached hereto as Exhibit B; interest on such
Bonds shall be payable on each Interest Payment Date and at
Maturity (as each of such terms is hereinafter defined); and
interest on such Bonds during any period less than one year for
which payment is made shall be computed in accordance with the
Reimbursement Agreement (as hereinafter defined);
(c) the principal of and premium, if any, and interest on each
bond of the Forty-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 Forty-fifth Series
(other than interest payable at Maturity) shall be payable directly
to the registered owner thereof;
(d) the Bonds of the Forty-fifth Series shall not be redeemable,
in whole or in part, at the option of the Company;
(e) (i) the Bonds of the Forty-fifth Series are to be issued and
delivered to the Bank (as hereinafter defined) in order to provide
the benefit of the lien of the Mortgage as security for the
obligation of the Company under the Reimbursement Agreement to pay
the Obligations (as hereinafter defined), to the extent and subject
to the limitations set forth in clauses (iii) and (iv) of
this subdivision;
(ii) upon the earliest of (A) the occurrence of an Event of
Default under the Reimbursement Agreement, and further upon the
condition that, in accordance
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with the terms of the Reimbursement Agreement,
the Obligations (as hereinafter defined) shall have been or shall
have terminated and any Loans (as hereinafter defined) outstanding
shall have been declared to be or shall have otherwise become due
and payable immediately and the Bank shall have delivered to the
Company a notice demanding redemption of the Bonds of the
Forty-fifth Series which notice states that it is being delivered
pursuant to Article VI of the Reimbursement Agreement; (B) the
occurrence of an Event of Default under clause (h) of Article
VI of the Reimbursement Agreement, and (C) December 30,
2009, then all Bonds of the Forty-fifth Series shall be redeemed or
paid immediately at the principal amount thereof plus accrued
interest to the date of redemption or payment;
(iii) the obligation of the Company to pay the accrued interest
on Bonds of the Forty-fifth Series on any Interest Payment Date
prior to Maturity (a) shall be deemed to have been satisfied
and discharged in full in the event that all amounts then due in
respect of the Obligations shall have been paid or (b) shall
be deemed to remain unsatisfied in an amount equal to the aggregate
principal amount then due in respect of the Obligations and
remaining unpaid (not in excess, however, of the amount otherwise
then due in respect of interest on the Bonds of the Forty-fifth
Series);
(iv) the obligation of the Company to pay the principal of and
accrued interest on Bonds of the Forty-fifth Series at or after
Maturity (x) shall be deemed to have been satisfied and
discharged in full in the event that all amounts then due in
respect of the Obligations shall have been paid or (y) shall
be deemed to remain unsatisfied in an amount equal to the aggregate
amount then due in respect of the Obligations and remaining unpaid
(not in excess, however, of the amount otherwise then due in
respect of principal of and accrued interest on the Bonds of the
Forty-fifth Series).
(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 Forty-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 the Bank, signed by an
authorized officer thereof, stating that the principal of and/or
interest on the Bonds of the Forty-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 Forty-fifth Series;
(g) in the event of an application by the Bank for a substituted
Bond of the Forty-fifth Series pursuant to Section 16 of the
Original Mortgage, the Bank 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 Forty-fifth Series shall have such other
terms as are set forth in the form of bond attached hereto as
Exhibit B.
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Anything in this Supplemental Indenture or in the
Bonds of the Forty-fifth Series to the contrary notwithstanding,
if, at the time of the Maturity of the Bonds of the Forty-fifth
Series, the stated aggregate principal amount of such Bonds then
Outstanding shall exceed the aggregate principal amount of the
Revenue Bonds (as hereinafter defined) 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:
" Bank" means Bank of America, N.A.
" Bond Delivery Agreement " means the Bond Delivery
Agreement, dated December 30, 2008 between the Company and the
Bank.
" Interest Payment Date " means
March 31, June 30, September 30, and
December 30.
" Maturity " means the date on which the principal of the
Bonds of the Forty-fifth Series becomes due and payable, whether at
stated maturity, upon redemption or acceleration or otherwise.
" Obligations " shall have the meaning specified in the
Bond Delivery Agreement.
" Reimbursement Agreement " means the Letter of Credit
and Reimbursement Agreement, dated as of December 1, 2008,
between the Company and the Bank.
" Revenue Bonds " shall have the meaning specified in the
Bond Delivery Agreement.
A copy of the Reimbursement Agreement is on file at the office
of the Bank at Mail Code: WA1-501-36-06, 800 Fifth Avenue –
Floor 36, Seattle, WA, 98104 and at the office of the Company at
1411 East Mission Avenue, Spokane, WA 99202.
ARTICLE II
Outstanding Bonds
Upon the delivery of this Forty-fifth Supplemental Indenture,
Bonds of the Forty-fifth Series in an aggregate principal amount
not to exceed $17,000,000 are to be issued and will be Outstanding,
in addition to $1,421,700,000 aggregate principal amount of bonds
of prior series Outstanding at the date of delivery of this
Forty-fifth Supplemental Indenture.
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ARTICLE III
Miscellaneous Provisions
SECTION 1. The terms defined in the Original Mortgage shall, for
all purposes of this Forty-fifth 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:
The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this
Forty-fifth 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 Forty-fifth 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 Forty-fifth
Supplemental Indenture.
SECTION 3. Whenever in this Forty-fifth 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 Forty-fifth
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 Forty-fifth 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 Forty-fifth Supplemental Indenture or any
covenant, condition, stipulation, promise or agreement hereof, and
all the covenants, conditions, stipulations, promises and
agreements in this Forty-fifth 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 Forty-fifth Supplemental Indenture shall be
executed in several counterparts, each of which shall be an
original and all
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