<PAGE>
Exhibit 4.8
LOAN AGREEMENT
RESTATED AS OF MAY 1, 2005
BETWEEN
CITY OF FORSYTH, MONTANA
AND
AVISTA CORPORATION
$17,000,000
CITY OF FORSYTH, MONTANA
POLLUTION CONTROL REVENUE REFUNDING BONDS
(AVISTA CORPORATION COLSTRIP PROJECT)
SERIES 1999B
DATED AS OF SEPTEMBER 1, 1999
The
amounts payable to the Issuer and certain other rights of the
Issuer
under this Loan Agreement (except for
amounts payable to, and certain rights of,
the Issuer under Section 4.04, Section
4.06(a), Section 5.03, Section 5.06,
Section 5.07, Section 5.08 and Section 7.05
hereof and any rights of the Issuer
to receive notices, certificates, requests,
requisitions, directions and other
communications hereunder) and the rights of
the Issuer to the Company's First
Mortgage Bonds, or Substitute Collateral
therefor that may be delivered by the
Company in accordance with Section 4.09
hereof, have been pledged and assigned
to J.P. Morgan Trust Company, N.A., as
Trustee under the Trust Indenture, dated
as of September 1, 1999, as amended and
restated, from the Issuer. For the
purpose of perfecting the security interest
of such Trustee in such amounts
payable and such rights assigned to such
Trustee under the Montana Uniform
Commercial Code -- Secured Transactions,
the counterpart of this Loan Agreement
actually delivered to the Trustee shall be
deemed the original thereof.
Series 1999B Restated Loan Agreement
<PAGE>
LOAN AGREEMENT
RESTATED AS OF MAY 1, 2005
BETWEEN
CITY OF FORSYTH, MONTANA
AND
AVISTA CORPORATION
$17,000,000
CITY OF FORSYTH, MONTANA
POLLUTION CONTROL REVENUE REFUNDING BONDS
(AVISTA CORPORATION COLSTRIP PROJECT)
SERIES 1999B
DATED AS OF SEPTEMBER 1, 1999
The
amounts payable to the Issuer and certain other rights of the
Issuer
under this Loan Agreement (except for
amounts payable to, and certain rights of,
the Issuer under Section 4.04, Section
4.06(a), Section 5.03, Section 5.06,
Section 5.07, Section 5.08 and Section 7.05
hereof and any rights of the Issuer
to receive notices, certificates, requests,
requisitions, directions and other
communications hereunder) and the rights of
the Issuer to the Company's First
Mortgage Bonds, or Substitute Collateral
therefor, that may be delivered by the
Company in accordance with Section 4.09
hereof, have been pledged and assigned
to J.P. Morgan Trust Company, N.A., as
Trustee under the Trust Indenture, dated
as of September 1, 1999, as amended and
restated, from the Issuer. For the
purpose of perfecting the security interest
of such Trustee in such amounts
payable and such rights assigned to such
Trustee under the Montana Uniform
Commercial Code -- Secured Transactions,
the counterpart of this Loan Agreement
actually delivered to the Trustee shall be
deemed the original thereof.
This
counterpart of the Loan Agreement has been actually delivered to
the
Trustee and the Trustee acknowledges
receipt thereof.
J.P. MORGAN TRUST COMPANY, N.A., as
Trustee
By /s/ Mary Jane
Henson
--------------------
Authorized Officer
Series 1999B Restated Loan Agreement
-2-
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION
PAGE
<S>
<C>
Recitals.........................................................................................................
1
ARTICLE I
DEFINITIONS...........................................................................
2
ARTICLE II
REPRESENTATIONS, WARRANTIES AND
AGREEMENTS............................................ 2
Section 2.01.
Representations, Warranties and Agreements of
Issuer.................................. 2
Section 2.02.
Representations, Warranties and Agreements of
Company................................. 4
ARTICLE III
ISSUANCE OF THE BONDS; THE LOAN; DISPOSITION OF PROCEEDS OF THE
BONDS; THE PROJECT.... 7
Section 3.01.
Issuance of
Bonds.....................................................................
7
Section 3.02.
Issuance of Other
Obligations.........................................................
7
Section 3.03. The
Loan; Disposition of Bond Proceeds and Certain Other
Moneys....................... 7
Section 3.04.
Changes to
Project....................................................................
8
ARTICLE IV
LOAN PAYMENTS; PAYMENTS TO REMARKETING AGENT AND TRUSTEE; OTHER
OBLIGATIONS........... 8
Section 4.01. Loan
Payments.........................................................................
8
Section 4.02.
Payments of Purchase
Price............................................................
9
Section 4.03.
Payments Assigned; Obligation
Absolute................................................
9
Section 4.04.
Payment of
Expenses...................................................................
9
Section 4.05.
Indemnification.......................................................................
9
Section 4.06.
Payment of Taxes and Charges in Lieu
Thereof.......................................... 10
Section 4.07.
Credit
Facility.......................................................................
11
Section 4.08.
Compliance With Prior
Agreement.......................................................
12
Section 4.09.
Issuance, Delivery and Surrender of First Mortgage Bonds and
Substitute Collateral.... 12
ARTICLE V
SPECIAL
COVENANTS.....................................................................
14
Section 5.01.
Maintenance of Existence; Conditions Under Which Exceptions
Permitted................. 14
Section 5.02.
Permits or
Licenses...................................................................
14
Section 5.03.
Arbitrage
Covenant....................................................................
14
Section 5.04.
Financing
Statements..................................................................
15
Section 5.05.
Covenants With Respect to Tax-Exempt Status of the
Bonds.............................. 15
</TABLE>
Series 1999B Restated Loan Agreement
-i-
<PAGE>
<TABLE>
<CAPTION>
SECTION
PAGE
<S>
<C>
Section 5.06.
Indemnification of
Issuer.............................................................
15
Section 5.07.
Records of Company; Maintenance and Operation of the
Project.......................... 16
Section 5.08.
Right of Access to the
Project........................................................
16
Section 5.09.
Remarketing
Agent.....................................................................
17
Section 5.10.
Credit
Ratings........................................................................
17
Section 5.11.
Purchases of PARS Rate
Bonds..........................................................
17
Section 5.12.
Credit
Facility.......................................................................
17
ARTICLE VI
ASSIGNMENT............................................................................
17
Section 6.01.
Conditions............................................................................
17
Section 6.02.
Documents Furnished to
Trustee........................................................
18
Section 6.03.
Limitation............................................................................
18
ARTICLE VII
EVENTS OF DEFAULT AND
REMEDIES........................................................
18
Section 7.01.
Events of
Default.....................................................................
18
Section 7.02.
Force
Majeure.........................................................................
19
Section 7.03.
Remedies..............................................................................
20
Section 7.04. No
Remedy
Exclusive...................................................................
20
Section 7.05.
Reimbursement of Attorneys'
Fees......................................................
20
Section 7.06.
Waiver of
Breach......................................................................
21
ARTICLE VIII
PURCHASE OR REDEMPTION OF
BONDS.......................................................
21
Section 8.01.
Redemption of
Bonds...................................................................
21
Section 8.02.
Purchase of
Bonds.....................................................................
21
Section 8.03.
Obligation to
Prepay..................................................................
21
Section 8.04.
Compliance With
Indenture.............................................................
22
ARTICLE IX
MISCELLANEOUS.........................................................................
23
Section 9.01. Term
of
Agreement.....................................................................
23
Section 9.02.
Notices...............................................................................
23
Section 9.03.
Parties in
Interest...................................................................
23
Section 9.04.
Amendments............................................................................
24
Section 9.05.
Counterparts..........................................................................
24
Section 9.06.
Severability..........................................................................
24
Section 9.07.
Governing
Law.........................................................................
24
Signatures.......................................................................................................
25
EXHIBIT A
--
Project Description
</TABLE>
Series 1999B Restated Loan Agreement
-ii-
<PAGE>
LOAN AGREEMENT
This LOAN
AGREEMENT, dated as of September 1, 1999, as restated in its
entirety by that certain First Supplemental
Loan Agreement, dated as of May 1,
2005, between the Issuer (as defined below)
and the Company (as defined below)
is between the CITY OF FORSYTH, MONTANA, a
political subdivision duly organized
and existing under the Constitution and
laws of the State (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 (the "Company").
RECITALS:
A. The
Issuer is authorized by the provisions of the Act to issue one
or
more series of its revenue bonds to finance
all or part of the cost of projects
consisting of exempt facilities (as such
term is used in the Code) located
within the territorial limits of the
Issuer.
B. The Act
provides that payment of the principal of and interest on
revenue bonds issued thereunder shall be
secured by a pledge of the revenues out
of which such revenue bonds shall be
payable and may be secured by a pledge of
an agreement relating to a project.
C. The
Issuer has previously issued the Prior Bonds on behalf of the
Company for the purpose of refinancing a
portion of the costs of acquiring and
improving the Project.
D. The
Issuer is authorized by the Act to issue its revenue refunding
bonds to refund the Prior Bonds.
E. By
proper action of its governing body taken pursuant to and in
accordance with the provisions of the Act,
the Issuer has authorized and
undertaken to issue its Pollution Control
Revenue Refunding Bonds (Avista
Corporation Colstrip Project) Series 1999B
and the issuance of the Bonds to
refund the Prior Bonds is authorized by the
provisions of the Act.
F. The
issuance of the Bonds to refund the Prior Bonds will provide
financing on more advantageous terms for
the cost of the Project financed by the
Prior Bonds.
G. The
Bonds shall be issued under and pursuant to the Trust
Indenture,
dated as of September 1, 1999, between the
Issuer and Chase Manhattan Bank and
Trust Company, National Association, as
Trustee, pursuant to which the Issuer
shall pledge and assign to the Trustee
certain rights of the Issuer hereunder.
H.
Pursuant to this Agreement, the Issuer will loan the proceeds of
the
Bonds to the Company to provide financing
for the Project, and the Company
agrees to make, or cause to be made,
payments sufficient to pay when due
(whether at stated maturity, by
acceleration or otherwise) the principal of and
premium, if any, and interest on the
Bonds.
Series 1999A Restated Loan Agreement
<PAGE>
I. The
Company agrees under this Agreement to pay, or cause to be
paid,
when due, the purchase price of Bonds
purchased pursuant to the terms of the
Indenture.
J. The
issuance, sale and delivery of the Bonds and the execution and
delivery of this Agreement and the
Indenture have been in all respects duly and
validly authorized in accordance with the
Act and the Bond Resolution.
K. The
Company and Ambac Assurance Corporation, a Wisconsin stock
insurance company, as Provider of the
Credit Facility, have agreed to enter into
that certain Insurance Agreement, dated as
of September 1, 1999, pursuant to
which the Provider is to issue its
Municipal Bond Insurance Policy to guarantee
payment of the principal of the Bonds upon
the stated maturity thereof, the
redemption price of the Bonds upon certain
mandatory redemption and interest on
the Bonds as the same accrues and becomes
due and payable.
L. The
Company has issued and delivered the First Mortgage Bonds to
the
Trustee to evidence and secure the payment
of certain of its obligations
hereunder.
In
consideration of the respective representations and agreements
contained in this Agreement, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
All words
and terms used but not otherwise defined in this Agreement,
shall for all purposes of this Agreement
have the meanings specified in Article
I of the Indenture, unless the context
clearly requires otherwise. In addition,
the following words and terms shall have
the following meanings when used in
this Agreement:
"Affiliate" means any entity controlling, controlled by or under
common
control with the Company.
"Indenture" means the Trust Indenture, dated as of September 1,
1999,
between the Issuer and the Trustee,
relating to the issuance of the Bonds as
such Trust Indenture may be supplemented
and amended from time to time as
therein permitted.
The words
"hereto," "hereunder" and other words of similar import refer
to
this Agreement as a whole.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
SECTION 2.01.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF ISSUER. The
Issuer represents, warrants and agrees
that:
Series 1999A Restated Loan Agreement
-2-
<PAGE>
(a) The
Issuer is a political subdivision of the State, duly organized
and
validly existing under the Constitution and
laws of the State.
(b) Under
the Act, the Issuer has the power to enter into the
transactions
contemplated by this Agreement and the
Indenture and to carry out its
obligations hereunder and thereunder,
including the issuance and sale of the
Bonds. By proper action of its governing
body, the Issuer has been duly
authorized to execute, deliver and duly
perform this Agreement and the Indenture
and to issue and sell the Bonds and has
made all determinations and findings as
and where required by Section 90-5-106 of
the Act.
(c) The
aggregate principal amount of the Bonds authorized to be issued
under the Indenture for the purpose of
refunding the Prior Bonds does not exceed
the aggregate principal amount of the Prior
Bonds now outstanding.
(d) The
Prior Agreement and the Prior Indenture are each in full force
and
effect and have not been amended or
supplemented.
(e) The
proceeds of the sale of the Bonds (i) will be deposited with
the
Prior Trustee for deposit into the Prior
Bond Fund to provide a portion of the
moneys necessary for the Refunding and (ii)
will be applied by the Prior Trustee
to redeem the Prior Bonds pursuant to the
Prior Indenture on the Redemption
Date. The Prior Bonds are now outstanding
in the principal amount of
$17,000,000. Prior to the issuance and
delivery of the Bonds, the Prior Trustee
will be given irrevocable instructions and
will be directed to call all of the
Prior Bonds for redemption on the
Redemption Date.
(f) The
Bonds are to be issued under and secured by the Indenture,
pursuant to which certain of the Issuer's
right, title and interest in this
Agreement and the revenues derived by the
Issuer pursuant to this Agreement will
be pledged and assigned to the Trustee as
security for payment of the principal
and purchase price of, premium, if any, and
interest on the Bonds.
(g)
Neither the execution and delivery of this Agreement or the
Indenture,
the issuance and sale of the Bonds, the
consummation of the transactions
contemplated hereby and thereby, nor the
fulfillment of or compliance with the
terms and conditions of this Agreement, the
Tax Certificate, the Indenture or
the Bonds conflicts with or results in a
breach of the terms, conditions or
provisions of any restriction or any
agreement or instrument to which the Issuer
is now a party or by which it is bound, or
constitutes a default under any of
the foregoing.
(h) The
Issuer has not assigned or pledged and will not assign or
pledge
its interest in this Agreement other than
to secure the Bonds.
(i) To the
knowledge of the Issuer, after due inquiry, no litigation is
pending or threatened against the Issuer to
restrain or enjoin the issuance or
sale of the Bonds or in any way affecting
any authority for or the validity of
the Bonds, the Indenture, this
Series 1999A Restated Loan Agreement
-3-
<PAGE>
Agreement
or the existence or powers of the Issuer or the right of the
Issuer
under the Act to refinance a portion of the costs of the
Project
through
the issuance of the Bonds.
(j) To the knowledge of the Issuer, after due inquiry, no event
has
occurred
and no condition exists which, upon the issuance of the Bonds,
would
constitute an event of default on the part of the Issuer under
the
Prior
Indenture.
(k) The Issuer will not knowingly take or omit to take any
action
Ireasonably within its control the taking or omission of which
would
adversely
affect the Tax-Exempt status of the Bonds. The Issuer will file
or cause
to be filed with the United States Department of Treasury the
information required by Section 149(e) of the Code.
(l) A public hearing relating to the Refunding for the Project
was
held on
May 4, 1999, following public notice thereof, pursuant to
Section
147(f) of
the Code, and the public hearing and approval requirements of
Section
147(f) of the Code have been satisfied.
(m) Within the meaning of Sections 2-2-121 and 2-2-125, Montana
Code
Annotated,
as amended, no "public officer," "public employee," "officer"
or
"employee" of the Issuer is engaged as counsel, consultant,
representative, or agents of the Company, or has a substantial
financial
interest
in the Company. None of the officers, deputies, or employees of
the Issuer
or employees having terminated their employment with the Issuer
within the
six months immediately preceding this Agreement are "interested
in" this
Agreement, the Indenture, the Bonds or the transactions
contemplated thereby, within the meaning of Section 2-2-201,
Montana Code
Annotated,
as amended.
Concurrently with the initial authentication and delivery of the
Bonds
under the Indenture, the Issuer shall
execute and deliver a certificate
reaffirming the foregoing representations,
warranties and agreements as of the
date thereof.
SECTION 2.02.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF COMPANY. The
Company represents, warrants and agrees
that:
(a) It is a corporation duly organized and validly existing
under
the laws
of the State of Washington and duly qualified as a foreign
corporation in good standing in the State, is not in violation of
any
provision
of its Articles of Incorporation or its Bylaws, in each case as
the same
have been amended, has full corporate power to own its
properties
and
conduct its business, and has the corporate power to enter into,
and
by proper
corporate action has duly authorized the execution and delivery
of, this
Agreement and the Tax Certificate, and has the power to issue
and
pledge the
First Mortgage Bonds as contemplated herein and in the Company
Mortgage.
(b) Neither the execution and delivery of this Agreement or the
Tax
Certificate, the consummation of the transactions contemplated
hereby, nor
the
fulfillment of or compliance with the terms and conditions of
this
Agreement (including,
without limitation, the issuance and delivery of the
First
Mortgage Bonds) or the Tax
Series 1999A Restated Loan Agreement
-4-
<PAGE>
Certificate conflicts with or will result in a breach of any of the
terms,
conditions
or provisions of any law or judgment to which the Company or
its
property or assets are subject or of any corporate restriction
contained
in its Articles of Incorporation or its Bylaws, in each case as
the same
have been amended, or any agreement or instrument to which the
Company is
now a party or by which it is bound, or constitutes, with or
without
the giving of notice or lapse of time or both, a default under
any
of the
foregoing, or results in the creation or imposition of any
lien,
charge or
encumbrance whatsoever upon any of the property or assets of
the
Company
(other than any lien, charge or encumbrance which may be
created
in favor
of the Trustee by the Company Mortgage and the Company
Supplemental Indenture) under the terms of any instrument or
agreement.
(c) This Agreement has been duly and validly authorized,
executed
and
delivered by the Company and is a legal, valid and binding
obligation
of the
Company, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization,
moratorium, usury or other similar laws affecting the rights of
creditors
generally,
equitable principles relating to the availability of remedies
and
principles of public or governmental policy limiting the
enforceability of the indemnification and contribution
provisions.
(d) Other than the orders of the Washington Utilities and
Transportation Commission, the California Public Utilities
Commission, the
Idaho
Public Utilities Commission and the Oregon Public Utility
Commission
and the
approval by the Issuer, all of which orders and approvals will
have been
received and be in effect prior to the initial authentication
and
delivery of the Bonds, no consent, approval, authorization or
order
of, or
registration with, any court or governmental or regulatory
agency
or body is
required with respect to the Company for the execution,
delivery
and performance by the Company of this Agreement and the Tax
Certificate.
(e) The Company has received an executed counterpart of the
Indenture
and hereby consents to and approves of the provisions thereof.
(f) The information relating to the Project furnished by the
Company
in writing
to Chapman and Cutler LLP, as Bond Counsel, in connection with
the
issuance by the Issuer of the Bonds, is, to the best of the
Company's
knowledge,
true and correct.
(g) The Prior Agreement and the Prior Indenture are in full
force
and effect
and have not been amended or supplemented.
(h) To the best knowledge of the Company, no event has occurred
and
is
continuing under the provisions of the Prior Indenture that now
constitutes, or with the lapse of time or the giving of notice, or
both,
would
constitute, an event of default under the Prior Indenture.
(i) Upon the initial authentication and delivery of the Bonds,
the
Company
has given or will give timely notice as required by the
provisions
of the
Prior Agreement
Series 1999A Restated Loan Agreement
-5-
<PAGE>
of the
Company's intent to prepay the amounts payable thereunder to
provide
for the redemption of the Prior Bonds on the Redemption Date.
(j) The aggregate principal amount of Bonds authorized to be
issued
under the
Indenture does not exceed the aggregate principal amount of the
Prior
Bonds now Outstanding.
(k) The Company does not, as of the date of issuance of the
Bonds,
reasonably
expect any use of moneys derived from the proceeds of the Bonds
or any
investment or reinvestment thereof or from the sale of the
Project
which
would cause the Bonds to be classified as "arbitrage bonds"
within
the
meaning of Section 148 of the Code.
(l) All of the proceeds of the Prior Bonds, including the
investment
earnings
thereon, have been disbursed in accordance with the provisions
of
the Prior
Indenture and the Prior Agreement and there are no proceeds of
the Prior
Bonds, or investment earnings therefrom, or any other moneys
being held
by the Prior Trustee under the Prior Indenture.
(m) The Pollution Control Facilities that comprise the Project
constitute
Exempt Facilities and consist of those facilities described in
Exhibit A
hereto (as such Exhibit A is from time to time amended or
supplemented in accordance with Section 3.04 hereof), and the
Company
shall not
consent to any changes in the Project which would adversely
affect the
qualification of the Project as a "project" under the Act or
adversely
affect the Tax-Exempt status of the Bonds.
(n) Substantially all of the proceeds of the Prior Bonds have
been
expended
for the purpose of acquiring, constructing and improving the
Project,
which constitutes Exempt Facilities. None of the proceeds of
the
Prior
Bonds were used (i) to acquire land (or an interest therein) or
(ii)
to acquire
any property (or an interest therein) unless the first use of
such
property was pursuant to such acquisition, all within the meaning
of
Section
147 of the Code.
(o) The Montana Department of Health and Environmental Sciences
has
certified
that the pollution control facilities constituting part of the
Project,
as designed, are in furtherance of the purpose of abating or
controlling atmospheric pollutants or contaminants, and water
pollution,
as the case may
be.
(p) No construction, reconstruction or acquisition (within the
meaning of
the Code) of the Project was commenced prior to the taking of
official
action by the Issuer with respect thereto and the Project has
been placed in
service.
(q) The average maturity of the Bonds does not exceed 120% of
the
average
reasonably expected economic life of the Project.
(r) All of the Prior Bonds will be redeemed within 90 days of
the
date of the initial authentication
and delivery of the Bonds, and all of
the
proceeds of the sale of the Bonds will be spent within 90 days of
the
initial
authentication and delivery of the Bonds.
Series 1999A Restated Loan Agreement
-6-
<PAGE>
(s) The Project (i) was designed to meet applicable federal,
state
and local
requirements for the control of pollution or the disposal of
solid
waste, (ii) was and is to be used solely for purposes
contemplated
by the
Act, and (iii) is located within the boundaries of Rosebud
County,
Montana.
(t) The representations, warranties and covenants of the Company
set
forth in
the Project Certificate are incorporated herein by reference
and
are hereby
made a part of this Agreement as if set forth herein.
(u) The Company will cooperate with the Issuer in filing or
causing
to be
filed with the United States Department of Treasury the
information
required
by Section 149(e) of the Code.
(v) The Company will pay the principal of and premium, if any,
and
interest
to the Redemption Date on all Prior Bonds that are validly
presented
to the Company for payment after the Prior Trustee has paid to
the
Company, in accordance with Section 4.08 of the Prior Indenture,
any
moneys
held in trust for the payment of the principal of and premium,
if
any, and
interest on the Prior Bonds.
Concurrently with the initial authentication and delivery of the
Bonds
under the Indenture, the Company shall
execute and deliver a certificate
reaffirming the foregoing representations,
warranties and agreements as of the
date thereof.
ARTICLE III
ISSUANCE OF THE BONDS; THE LOAN;
DISPOSITION OF PROCEEDS OF THE BONDS; THE PROJECT
SECTION 3.01. ISSUANCE OF
BONDS. In order to refinance a portion of the cost
of the Project by effecting the Refunding,
the Issuer shall issue the Bonds
under and in accordance with the Act and
pursuant to the Indenture. The Company
hereby approves the issuance of the Bonds
and all terms and conditions thereof.
SECTION 3.02. ISSUANCE OF
OTHER OBLIGATIONS. The Issuer and the Company
expressly reserve the right to enter into,
to the extent permitted by law, an
agreement or agreements other than this
Agreement with respect to the issuance
by the Issuer, under an indenture or
indentures other than the Indenture, of
obligations to provide additional funds to
pay costs of facilities in addition
to the Project or to provide for the
refunding of all or any principal amount of
the Bonds. Such obligations will not be
entitled to the benefits of the
Indenture, any First Mortgage Bonds or the
Credit Facility.
SECTION 3.03. THE LOAN;
DISPOSITION OF BOND PROCEEDS AND CERTAIN OTHER
MONEYS. The Issuer shall lend to the
Company the proceeds of the issuance and
sale of the Bonds for the purposes
specified in Section 3.01 of this Agreement.
The Issuer and the Company shall,
simultaneously with the delivery of the Bonds,
cause such proceeds, other than accrued
interest,
Series 1999A Restated Loan Agreement
-7-
<PAGE>
if any, to be transferred to the Prior
Trustee for deposit into the Prior Bond
Fund to be used to pay the principal amount
of the Prior Bonds upon their
redemption on the Redemption Date.
SECTION 3.04. CHANGES TO
PROJECT. The Company may at its own expense cause
the Project to be remodeled or cause such
substitutions, modifications and
improvements to be made to the Project from
time to time as the Company, in its
discretion, may deem to be desirable for
its uses and purposes, which
remodeling, substitutions, modifications
and improvements shall be included
under the terms of this Agreement as part
of the Project; provided, however,
that no such remodeling, substitutions,
modifications or improvements shall
change the description of the Project set
forth in Exhibit A to this Agreement
or change the function of any principal
component of the Project described in
Exhibit A to this Agreement unless, in
either case, the Trustee and the Issuer
first receive a Favorable Opinion of Bond
Counsel with respect to such change.
If any such supplement or amendment affects
the description of the Project, the
Company and the Issuer will amend Exhibit A
to this Agreement to reflect such
supplement or amendment, which supplement
or amendment will not be considered as
an amendment to this Agreement requiring
the consent of any Owner, the Trustee
or the Provider for the purposes of Article
XII of the Indenture.
ARTICLE IV
LOAN PAYMENTS; PAYMENTS TO REMARKETING AGENT AND TRUSTEE;
OTHER OBLIGATIONS
SECTION 4.01. LOAN PAYMENTS.
(a) As and for repayment of the loan made to the
Company by the Issuer pursuant to Section
3.03 hereof, the Company shall pay to
the Trustee, for the account of the Issuer,
an amount equal to the aggregate
principal amount of and the premium, if
any, on the Bonds from time to time
Outstanding and, as interest on its
obligation to pay such amount, an amount
equal to interest on the Bonds, such
amounts to be paid in installments due on
the dates, in the amounts and in the manner
provided in the Indenture for the
payment of the principal of and premium, if
any, and interest on the Bonds,
whether at maturity, upon redemption,
acceleration or otherwise; provided,
however, that the obligation of the Company
to make any such payment hereunder
shall be reduced by the amount of any
moneys held by the Trustee under the
Indenture and available for such payment;
and provided further that the
obligation of the Company to make any
payment hereunder shall be deemed to be
satisfied and discharged to the extent of
the corresponding payment made by the
Company of principal of or premium, if any,
or interest on the First Mortgage
Bonds.
(b) In the
event the Company shall fail to make any payment required by
Section 4.01(a) hereof with respect to the
principal of and premium, if any, and
interest on any Bond, the payment so in
default shall continue as an obligation
of the Company until the amount in default
shall have been fully paid, and the
Company will pay interest on any overdue
amount with respect to principal of
such Bond and, to the extent permitted by
law, on any overdue amount with
respect to premium, if any, and interest on
such Bond, at the interest rate then
borne by such Bond until paid.
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SECTION 4.02. PAYMENTS OF
PURCHASE PRICE. The Company shall pay or cause to
be paid for its account to the Trustee
amounts equal to the amounts to be paid
by the Trustee as the purchase price for
such Bonds pursuant to Section 3.01 and
Section 3.02 of the Indenture in respect of
Outstanding Bonds, such amounts to
be paid to the Trustee on the dates such
payments are to be made pursuant to
Section 3.01 and Section 3.02 of the
Indenture; provided, however, that the
obligation of the Company to make any such
payment hereunder shall be reduced by
the amount of any moneys held by the
Trustee under the Indenture and available
for such payment.
SECTION 4.03. PAYMENTS
ASSIGNED; OBLIGATION ABSOLUTE. It is understood and
agreed that the Loan Payments and all
payments to be made by the Company on the
First Mortgage Bonds are, by the Indenture,
pledged and assigned by the Issuer
to the Trustee pursuant to the Indenture,
and that all right, title and interest
of the Issuer hereunder (except for amounts
payable to, and the rights of, the
Issuer under Section 4.04, Section 4.06(a),
Section 5.03, Section 5.06, Section
5.07, Section 5.08 and Section 7.05 hereof
and the Issuer's rights to receive
notices, certificates, requests,
requisitions, directions and other
communications hereunder), including the
right to delivery of the First Mortgage
Bonds, are pledged and assigned to the
Trustee pursuant to the Indenture. The
Company assents to such pledge and
assignment and agrees that the obligation of
the Company to make the Loan Payments and
payments to the Trustee under Section
4.02 hereof and to make the payments on the
First Mortgage Bonds shall be
absolute, irrevocable and unconditional and
shall not be subject to
cancellation, termination or abatement, or
to any defense other than payment, or
to any right of setoff, counterclaim or
recoupment arising out of any breach
under this Agreement or the Indenture or
otherwise by the Company, the Trustee,
the Remarketing Agent, the Provider, the
Auction Agent, the Broker-Dealer or any
other party, and, further, that the Loan
Payments and the other payments due
hereunder and on the First Mortgage Bonds
shall continue to be payable at the
times and in the amounts herein and therein
specified whether or not the
Project, or any portion thereof, shall have
been destroyed by fire or other
casualty, or title thereto, or the use
thereof, shall have been taken by the
exercise of the power of eminent domain,
and that there shall be no abatement of
or diminution in any such payments by
reason thereof, whether or not the Project
shall be used or useful and whether or not
any applicable laws, regulations or
standards shall prevent or prohibit the use
of the Project or for any other
reason. The Project shall not constitute
any part of the Trust Estate or any
part of the security for the Bonds.
SECTION 4.04. PAYMENT OF
EXPENSES. The Company shall pay all of the
Administration Expenses of the Issuer, the
Trustee, the Paying Agent, the
Registrar, the Auction Agent, the Broker
Dealers, the Securities Depository,
Moody's and S&P under the Indenture and
of any Remarketing Agent under a
Remarketing Agreement directly to each such
entity. The Company shall also pay
all of the expenses of the Prior Trustee in
connection with the Refunding and
all other reasonable fees and expenses
incurred in connection with the issuance
of the Bonds, including, but not limited
to, all costs associated with any
discontinuance of the book-entry system
described in Section 2.16 of the
Indenture. The obligations of the Company
under this Section 4.04 shall survive
the termination of this Agreement.
SECTION 4.05.
INDEMNIFICATION. The Company releases the Trustee, the Paying
Agent and the Registrar and their
respective officers, agents, servants and
employees from, agrees that the Trustee,
the Paying Agent and the Registrar and
their respective officers, agents, servants
and
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employees shall not be liable for, and
agrees to indemnify and hold free and
harmless the Trustee, the Paying Agent and
the Registrar and their respective
officers, agents, servants and employees
from and against, any liability for any
loss or damage to property or any injury to
or death of any person that may be
occasioned by any cause whatsoever
pertaining to the Project, except in any case
as a result of the negligence or willful
misconduct of the Trustee, the Paying
Agent and the Registrar and their
respective officers, agents, servants and
employees.
The
Company will indemnify and hold free and harmless the Trustee,
the
Paying Agent and the Registrar and their
respective officers, agents, servants
and employees from and against any loss,
claim, damage, tax, penalty, liability,
disbursement, litigation or other expenses,
attorneys' fees and expenses or
court costs arising out of, or in any way
relating to, the execution or
performance of this Agreement, the Tax
Certificate, the Auction Agreement, the
issuance or sale of the Bonds, the issuance
of the First Mortgage Bonds, the
Refunding, the acceptance or administration
of the trust under the Indenture or
any other cause whatsoever pertaining to
this Agreement, the Tax Certificate,
the Indenture, the Auction Agreement or the
Credit Facility, except in any case
as a result of the negligence or willful
misconduct of the Trustee, the Paying
Agent and the Registrar or their respective
officers, agents, servants and
employees.
The
obligations of the Company under this Section 4.05 shall survive
the
termination of this Agreement.
SECTION 4.06. PAYMENT OF
TAXES AND CHARGES IN LIEU THEREOF. (a) The Company
covenants and agrees that it will, from
time to time for so long as the Company
has an ownership interest in the Project,
promptly pay and discharge or cause to
be paid and discharged when due its share
of all taxes, assessments, levies,
duties, imposts and governmental, utility
and other charges lawfully imposed
upon the Project or any part thereof or
upon income and profits thereof or any
payments hereunder or on the First Mortgage
Bonds. In the event that the Company
sells or otherwise transfers its inter
