UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 14, 2011
AVISTA CORPORATION
(Exact name of registrant as specified in its charter)
| Washington | 1-3701 | 91-0462470 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) | ||
| 1411 East Mission Avenue, Spokane, Washington | 99202-2600 | |||
| (Address of principal executive offices) | (Zip Code) | |||
| Registrant’s telephone number, including area code: 509-489-0500 | ||||
| Web site: http://www.avistacorp.com | ||||
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Section 1 – Registrant’s Business and Operations
Item 1.01 Entry into a Material Definitive Agreement.
Amendment to Committed Line of Credit Agreement
On December 14, 2011, Avista Corporation (Avista Corp. or the Company) amended its $400.0 million committed line of credit agreement with various banks. The committed line of credit was originally entered into on February 11, 2011.
Amendments to the committed line of credit include an extension of the expiration date to February 10, 2017 from February 11, 2015 and revised pricing terms. The following is a summary of the amended pricing terms based on the Company’s current pricing level:
| Amended Pricing |
Previous Pricing | |||
| Facility Fee |
0.125% | 0.20% | ||
| Eurodollar Margin |
0.875% | 1.30% | ||
| Alternate Base Rate Margin |
0.000% | 0.30% | ||
| Letter of Credit Participation Fee |
0.875% | 1.30% |
The lenders have also waived certain technical requirements with respect to borrowings being outstanding under the credit agreement on the date of the extension of the expiration date, the assignment of loans, letter of credit disbursements, letter of credit participations to reflect revised commitments and the notice period with respect to the extension of the expiration date.
The amended committed line of credit is secured by $400.0 million of non-transferable First Mortgage Bonds of the Company issued to the agent bank. Such First Mortgage Bonds would only become due and payable in the event, and then only to the extent, that the Company defaults on its obligations under the committed line of credit.
The amended committed line of credit agreement contains customary covenants and default provisions, including a covenant not to permit the ratio of “consolidated total debt” to “consolidated total capitalization” of Avista Corporation to be greater than 65 percent at the end of any fiscal quarter.
Issuance of First Mortgage Bonds
On December 14, 2011, Avista Corp. issued $85.0 million of 4.45 percent First Mortgage Bonds due in 2041 under a bond purchase agreement with certain institutional investors in the private placement market. The new First Mortgage Bonds were issued under and in accordance with the Mortgage and Deed of Trust, dated as of June 1, 1939, from the Company to Citibank, N.A., trustee, as amended and supplemented by various supplemental indentures and other instruments.
The total net proceeds from the sale of the new bonds were used to repay a portion of the borrowings outstanding under the Company’s $400.0 million committed line of credit.
The bonds have not been, and will not be, registered under the Securities Act of 1933 or any state securities laws and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements.
Section 2 – Financial Information
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
See description of amendment to the Company’s $400.0 million committed line of credit under Item 1.01.
See description of Avista Corp.’s issuance of $85.0 million of 4.45 percent First Mortgage Bonds due in 2041 under Item 1.01.
Section 9 – Financial Statements and Exhibits
Item 9.01 Financial Statements and Exhibits.
| (d) | Exhibits |
| 4.1 | Fifty-Third Supplemental Indenture, dated as of December 1, 2011. | |
| 10.1 | First Amendment and Waiver Thereunder, dated as of December 14, 2011, to the Credit Agreement, dated as of February 11, 2011, among Avista Corporation, the Banks Party hereto, Wells Fargo Bank National Association as an Issuing Bank, and Union Bank N.A. as Administrative Agent and an Issuing Bank. | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| AVISTA CORPORATION | ||
| (Registrant) | ||
| Date: December 16, 2011 | /s/ Mark T. Thies | |
| Mark T. Thies | ||
| Senior Vice President and Chief Financial Officer | ||
Exhibit 4.1
CONFORMED COPY
AVISTA CORPORATION
TO
CITIBANK, N.A.
As Successor Trustee under
Mortgage and Deed of Trust,
dated as of June 1, 1939
Fifty-third Supplemental Indenture
Providing among other things for a series of bonds designated
“First Mortgage Bonds 4.45% Series due 2041”
Due December 14, 2041
Dated as of December 1, 2011
FIFTY-THIRD SUPPLEMENTAL INDENTURE
THIS INDENTURE, dated as of the 1st day of December, 2011, 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, 14th 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 “Fifty-third 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 Fifty-second Supplemental Indentures, being herein sometimes called the “Mortgage”); and
WHEREAS the Original Mortgage and the First through Fifty-first 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 Fifty-second Supplemental Indentures and the Instrument of Further Assurance, dated December 15, 2001, hereinafter referred to; and
WHEREAS the Fifty-second Supplemental Indenture, dated as of August 1, 2011, has been appropriately filed or recorded in the various official records in the States of Washington, Idaho, Montana and Oregon, as set forth in Exhibit B hereto; 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 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
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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 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 120 of the Original Mortgage, as heretofore amended, provides that, without the consent of any holders of bonds, the Company and the Trustee, at any time and from time to time, may enter into indentures supplemental to the Original Mortgage for various purposes set forth therein, including, without limitation, to cure ambiguities or correct defective or inconsistent provisions or to make other changes therein that shall not adversely affect the interests of the holders of bonds of any series in any material respect or to establish the form or terms of bonds of any series as contemplated by Article II; and
WHEREAS Section 8 of the Original Mortgage, as heretofore amended, 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 or by Treasurer’s Certificate, or shall be set forth in an indenture supplemental to the Original Mortgage; that the form of such series, as so established, 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 Company 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 the Company now desires to create a new series of bonds; and
WHEREAS the execution and delivery by the Company of this Fifty-third Supplemental Indenture and the terms of the Bonds of the Fifty-fourth 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 Fifty-third Supplemental Indenture a valid, binding and legal instrument have been performed;
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NOW, THEREFORE, THIS INDENTURE WITNESSETH: That the Company, in consideration of the premises and of other good and valuable consideration, the receipt and 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.
The property so conveyed or intended to be so conveyed under the Mortgage shall include, but shall not be limited to, the property set forth in Exhibit C hereto, the particular description of which is intended only to aid in the identification thereof and shall not be construed as limiting the force, effect and scope of the foregoing.
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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.
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 Fifty-third Supplemental Indenture being supplemental to the Mortgage.
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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:
ARTICLE I
Fifty-fourth Series of Bonds
SECTION 1. (I) There shall be a series of bonds designated “First Mortgage Bonds, 4.45% Series due 2041” (herein sometimes referred to as the “Bonds of the Fifty-fourth Series”), each of which shall also bear the descriptive title First Mortgage Bond and the form thereof is set forth on Exhibit D hereto. The Bonds of the Fifty-fourth 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 Original Mortgage provided. The Bonds of the Fifty-fourth Series shall be limited in aggregate principal amount to $85,000,000 (except for Bonds of such series authenticated and delivered upon transfer of or in exchange for, or in lieu of, other Bonds of such series).
(II) The Bonds of the Fifty-fourth Series shall mature, bear interest, be payable, be redeemable and be otherwise as set forth below:
(a) the principal of Bonds of the Fifty-fourth Series shall (unless theretofore paid) be payable on the Stated Maturity Date (as hereinafter defined);
(b) the Bonds of the Fifty-fourth Series shall bear interest at the rate of four and forty-five one hundredths percentum (4.45%) per annum; interest on such Bonds shall accrue from and including December 14, 2011, except as otherwise provided in the form of bond attached hereto as Exhibit D; 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 for which payment is made shall be computed on the basis of a 360-day year consisting of twelve 30-days months;
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(c) the principal of and premium, if any, and interest on each Bond of the Fifty-fourth 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 Fifty-fourth Series (other than interest payable at Maturity) shall be payable by check, in similar coin or currency, mailed to the registered owner thereof as of the close of business on the Record Date (as hereinafter defined) next preceding each Interest Payment Date; provided, however, that if such registered owner shall be a securities depositary, such payment may be made by such other means in lieu of check as shall be agreed upon by the Company, the Trustee and such registered owner; and, provided, further, that, so long as the Bonds of the Fifty-fourth Series shall be held by an Institutional Investor (as hereinafter defined), payment of principal of and premium, if any, and interest on the Bonds of the Fifty-fourth Series shall be payable in the manner specified in the Bond Purchase Agreement (as hereinafter defined).
(d) The Bonds of the Fifty-fourth Series shall be redeemable in whole at any time, or in part from time to time, at the option of the Company at a redemption price equal to the greater of
(i) 100% of the principal amount of the Bonds being redeemed, and
(ii) the sum of the present values of the remaining scheduled payments of principal of and interest (not including any portion of any scheduled payment of interest which accrued prior to the redemption date) on the Bonds being redeemed discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at a discount rate equal to the Treasury Yield (as hereinafter defined) plus 50 basis points,
plus, in the case of either (i) or (ii) above, whichever is applicable, accrued interest on such Bonds to the date of redemption.
(e) (i) “Treasury Yield” means, with respect to any redemption of Bonds of the Fifty-fourth Series, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price. The Treasury Yield shall be calculated as of the third business day preceding the redemption date (the “Calculation Date”).
(ii) “Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Bonds of the Fifty-fourth Series that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Bonds.
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(iii) “Comparable Treasury Price” means, (A) the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the Calculation Date, as set forth in the H.15 Daily Update of the Federal Reserve Bank of New York or (B) if such release (or any successor release) is not published or does not contain such prices on such business day, the Reference Treasury Dealer Quotation for the Calculation Date.
(iv) “H.15(519)” means the weekly statistical release entitled “Statistical Release H.15 (519)”, or any successor publication, published by the Board of Governors of the Federal Reserve System.
(v) “H.15 Daily Update” means the daily update of H.15(519) available through the worldwide website of the Board of Governors of the Federal Reserve System or any successor site or publication.
(vi) “Independent Investment Banker” means Merrill Lynch, Pierce, Fenner & Smith Incorporated or, if so determined by the Company, any other independent investment banking institution of national standing appointed by the Company and reasonably acceptable to the Trustee.
(vii) “Reference Treasury Dealer Quotation” means, with respect to the Reference Treasury Dealer, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount and quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the Calculation Date).
(viii) “Reference Treasury Dealer” means a primary U.S. Government securities dealer in New York City appointed by the Company and reasonably acceptable to the Trustee.
(f) If less than all of the outstanding Bonds of the Fifty-fourth Series are to be redeemed, the principal amount to be redeemed shall be prorated among all of the holders of such Bonds in the proportion that their respective holdings bear to the aggregate principal amount of such Bonds outstanding on the date of selection. The portion of any Bond to be redeemed shall be in the principal amount of $1,000 or an integral multiple thereof and such rounding allocations as may be requisite for this purpose shall be made by the Trustee in its uncontrolled discretion. The Trustee shall promptly notify the Company in writing of the distinctive numbers of the Bond and the portions thereof so selected for redemption.
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(g) Except as provided in this subsection (II) of Section 1, the Bonds of the Fifty-fourth Series shall not be redeemable prior to the Stated Maturity Date.
(III) (a) At the option of the registered owner, any Bonds of the Fifty-fourth Series, upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City of New York, shall be exchangeable for a like aggregate principal amount of Bonds of the same series of other authorized denominations.
The Bonds of the Fifty-fourth Series shall be transferable, upon the surrender thereof for cancellation, together with a written instrument of transfer in form approved by the registrar duly executed by the registered owner or by his duly authorized attorney, at the office or agency of the Company in the Borough of Manhattan, The City of New York.
Upon any exchange or transfer of Bonds of the Fifty-fourth Series, the Company may make a charge therefor sufficient to reimburse it for any tax or taxes or other governmental charge, as provided in Section 12 of the Original Mortgage, but the Company hereby waives any right to make a charge in addition thereto or any exchange or transfer of Bonds of the Fifty-fourth Series; provided, however, that the Company shall not be required to make any transfer or exchange of any Bonds of the Fifty-fourth for a period of 10 days next preceding any selection of such Bonds for redemption, nor shall it be required to make transfers or exchange of any Bonds of the Fifty-fourth Series which shall have been selected for redemption in whole or in part.
The Bonds of the Fifty-fourth Series shall bear a legend as to restrictions on transfer substantially as set forth below:
The Bonds evidenced hereby have not been registered under the Securities Act of 1933, as amended (the “Securities Act”) and may not be offered, sold, pledged or otherwise transferred in contravention of the Securities Act.
(IV) For all purposes of this Fifty-third Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires, the terms listed below, when used with respect to the Bonds of the Fifty-fourth Series, shall have the meanings specified below:
“Bond Purchase Agreement” means the Bond Purchase Agreement, dated October 27, 2011, between the Company and the purchasers listed on Schedule A thereto.
“Business Day” means any day, other than a Saturday or Sunday, which is not a day on which banking institutions or trust companies in The City of New York, New York are generally authorized or required by law, regulation or executive order to remain closed.
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“Institutional Investor” means (a) any original purchaser of a Bond of the Fifty-fourth Series, (b) any holder of a Bond of the Fifty-fourth Series holding (together with one or more of its affiliates) more than $1,000,000 in aggregate principal amount of the Bonds of the Fifty-fourth Series then outstanding, and (c) any bank, trust company, savings and loan association or other financial institution, any pension plan, any investment company, any insurance company, any broker or dealer, or any other similar financial institution or entity, regardless of legal form.
“Interest Payment Date” means June 1 and December 1 in each year, commencing June 1, 2012.
“Maturity” means the date on which the principal of the Bonds of the Fifty-fourth Series becomes due and payable, whether at the Stated Maturity Date, upon redemption or acceleration, or otherwise.
“Record Date”, with respect to any Interest Payment Date, means the close of business on the Business Day next preceding such Interest Payment Date.
“Stated Maturity Date” means December 14, 2041.
(V) Notwithstanding the provisions of Section 106 of the Original Mortgage, as amended, the Company shall not cause any Bonds of the Fifty-fourth Series, or any portion of the principal amount thereof, to be deemed to have been paid as provided in such Section and its obligations in respect thereof to be deemed to be satisfied and discharged prior to the Maturity thereof unless the Company shall deliver to the Trustee either:
(a) an instrument wherein the Company, notwithstanding the effect of Section 106 of the Original Mortgage, as amended, in respect of such Bonds, shall assume the obligation (which shall be absolute and unconditional) to irrevocably deposit with the Trustee such additional sums of money, if any, or additional government obligations (meeting the requirements of Section 106), if any, or any combination thereof, at such time or times, as shall be necessary, together with the money and/or government obligations theretofore so deposited, to pay when due the principal of and premium, if any, and interest due and to become due on such Bonds or portions thereof, all in accordance with and subject to the provisions of Section 106; provided, however, that such instrument may state that the obligation of the Company to make additional deposits as aforesaid shall be subject to the delivery to the Company by the Trustee of a notice asserting the deficiency accompanied by an opinion of an independent accountant showing the calculation thereof (which opinion shall be obtained at the expense of the Company); or
(b) an Opinion of Counsel to the effect that the holders of such Bonds, or portions of the principal amount thereof, will not recognize income, gain or loss for United States federal income tax purposes as a result of the satisfaction and discharge of the Company’s indebtedness in respect thereof and will be subject to United States federal income tax on the same amounts, at the same times and in the same manner as if such satisfaction and discharge had not been effected.
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(VI) Anything in this Supplemental Indenture or the Bonds of the Fifty-fourth Series to the contrary notwithstanding, any payment of principal of or premium, if any, or interest on any Bond of the Fifty-fourth Series that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; provided, however, that if the Maturity date of any Bond is a date other than a Business Day, the payment otherwise due at Maturity shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.
(VII) The Bonds of the Fifty-fourth Series shall have such further terms as are set forth in Exhibit D hereto. If there shall be a conflict between the terms of the form of bond and the provisions of the Mortgage, the provisions of the Mortgage shall control to the extent permitted by law.
ARTICLE II
Outstanding Bonds
Upon the delivery of this Fifty-third Supplemental Indenture, Bonds of the Fifty-fourth Series in an aggregate principal amount of $85,000,000 are to be issued and will be Outstanding, in addition to $1,578,700,000 aggregate principal amount of bonds of prior series Outstanding at the date of delivery of this Fifty-third Supplemental Indenture.
ARTICLE III
Miscellaneous Provisions
SECTION 1. The terms defined in the Original Mortgage shall, for all purposes of this Fifty-third 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 Fifty-third 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 Fifty-third 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 Fifty-third Supplemental Indenture.
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SECTION 3. Whenever in this Fifty-third 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 Fifty-third 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 Fifty-third 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, the holders of the Bonds Outstanding under the Mortgage, any right, remedy or claim under or by reason of this Fifty-third Supplemental Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all the covenants, conditions, stipulations, promises and agreements in this Fifty-third 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 Outstanding under the Mortgage.
SECTION 5. This Fifty-third Supplemental Indenture shall be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
SECTION 6. The titles of the several Articles of this Fifty-third Supplemental Indenture shall not be deemed to be any part thereof.
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IN WITNESS WHEREOF, on the 5th day of December, 2011, AVISTA CORPORATION has caused its corporate name to be hereunto affixed, and this instrument to be signed and sealed by its President or one of its Vice Presidents, and its corporate seal to be attested by its Corporate Secretary or one of its Assistant Corporate Secretaries for and in its behalf, all in The City of Spokane, Washington, as of the day and year first above written; and on the 5th day of December, 2011, CITIBANK, N.A., has caused its corporate name to be hereunto affixed, and this instrument to be signed and sealed by its President or one of its Vice Presidents or one of its Senior Trust Officers or one of its Trust Officers and its corporate seal to be attested by one of its Vice Presidents or one of its Trust Officers, all in The City of New York, New York, as of the day and year first above written.
| AVISTA CORPORATION | ||
| By: | MARK T. THIES | |
| Name: Mark T. Thies | ||
| Title: Senior Vice President and Chief Financial Officer | ||
| Attest: |
| SUSAN Y. FLEMING |
| Name: Susan Y. Fleming Title: Assistant Corporate Secretary |
| Executed, sealed and delivered by AVISTA CORPORATION in the presence of: |
| DIANE C. THOREN |
| Name: Diane C. Thoren |
| RYAN L. KRASSELT |
| Name: Ryan L. Krasselt |
13
| CITIBANK, N.A., AS TRUSTEE | ||
| By: | WAFAA ORFY | |
| Name: Wafaa Orfy | ||
| Title: Vice President | ||
| Attest: |
| LOUIS PISCITELLI |
| Name: Louis Piscitelli Title: Vice President |
| Executed, sealed and delivered by CITIBANK, N.A., as trustee, in the presence of: |
| JOHN HANNON |
| Name: John Hannon |
| CIRINO EMANUELE |
| Name: Cirino Emanuele |
14
| STATE OF WASHINGTON | ) | |
| ) ss.: | ||
| COUNTY OF SPOKANE | ) |
On the 5th day of December, 2011, before me personally appeared Mark T. Thies, to me known to be a Vice President of AVISTA CORPORATION, one of the corporations that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said Corporation for the uses and purposes therein mentioned and on oath stated that he was authorized to execute said instrument and that the seal affixed is the corporate seal of said Corporation.
On the 5th day of December, 2011, before me, a Notary Public in and for the State and County aforesaid, personally appeared Mark T. Thies, known to me to be a Vice President of AVISTA CORPORATION, one of the corporations that executed the within and foregoing instrument and acknowledged to me that such Corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.
| RAE AN CORNELL |
| Notary Public |
| RAE AN CORNELL |
| Notary Public |
| State of Washington |
| Commission Expires January 29, 2014 |
15
| STATE OF NEW YORK | ) | |
| ) ss.: | ||
| COUNTY OF NEW YORK | ) |
On the 5th day of December, 2011 before me personally appeared Wafaa Orfy, to me known to be a Vice President of CITIBANK, N.A., one of the corporations that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said Corporation for the uses and purposes therein mentioned and on oath stated that she was authorized to execute said instrument and that the seal affixed is the corporate seal of said Corporation.
On the 5th day of December, 2011, before me, a Notary Public in and for the State and County aforesaid, personally appeared Wafaa Orfy, known to me to be a Vice President of CITIBANK, N.A., one of the corporations that executed the within and foregoing instrument and acknowledged to me that such Corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.
| NOREEN IRIS SANTOS |
| Notary Public |
| NOREEN IRIS SANTOS |
| Notary Public, State of New York |
| Registration #01SA6228750 |
| Qualified in Nassau County |
| Commission Expires Sept. 27, 2014 |
16
Exhibit A
MORTGAGE, SUPPLEMENTAL INDENTURES
AND SERIES OF BONDS
| MORTGAGE OR SUPPLEMENTAL INDENTURE |
DATED AS OF |
SERIES | PRINCIPAL AMOUNT ISSUED |
PRINCIPAL AMOUNT OUTSTANDING | ||||||||
| NO. | DESIGNATION |
|||||||||||
| Original |
June 1, 1939 | 1 | 3-1/2% Series due 1964 | $ | 22,000,000 | None | ||||||
| First |
October 1, 1952 | 2 | 3-3/4% Series due 1982 | 30,000,000 | None | |||||||
| Second |
May 1, 1953 | 3 | 3-7/8% Series due 1983 | 10,000,000 | None | |||||||
| Third |
December 1, 1955 | None | ||||||||||
| Fourth |
March 15, 1957 | None | ||||||||||
| Fifth |
July 1, 1957 | 4 | 4-7/8% Series due 1987 | 30,000,000 | None | |||||||
| Sixth |
January 1, 1958 | 5 | 4-1/8% Series due 1988 | 20,000,000 | None | |||||||
| Seventh |
August 1, 1958 | 6 | 4-3/8% Series due 1988 | 15,000,000 | None | |||||||
| Eighth |
January 1, 1959 | 7 | 4-3/4% Series due 1989 | 15,000,000 | None | |||||||
| Ninth |
January 1, 1960 | 8 | 5-3/8% Series due 1990 | 10,000,000 | None | |||||||
| Tenth |
April 1, 1964 | 9 | 4-5/8% Series due 1994 | 30,000,000 | None | |||||||
| Eleventh |
March 1 ,1965 | 10 | 4-5/8% Series due 1995 | 10,000,000 | None | |||||||
| Twelfth |
May 1, 1966 | None | ||||||||||
| Thirteenth |
August 1, 1966 | 11 | 6 % Series due 1996 | 20,000,000 | None | |||||||
| Fourteenth |
April 1, 1970 | 12 | 9-1/4% Series due 2000 | 20,000,000 | None | |||||||
| Fifteenth |
May 1, 1973 | 13 | 7-7/8% Series due 2003 | 20,000,000 | None | |||||||
| Sixteenth |
February 1, 1975 | 14 | 9-3/8% Series due 2005 | 25,000,000 | None | |||||||
| Seventeenth |
November 1, 1976 | 15 | 8-3/4% Series due 2006 | 30,000,000 | None | |||||||
A-1
| MORTGAGE OR SUPPLEMENTAL INDENTURE |
DATED AS OF |
SERIES | PRINCIPAL AMOUNT ISSUED |
PRINCIPAL AMOUNT OUTSTANDING | ||||||||
| NO. | DESIGNATION |
|||||||||||
| Eighteenth |
June 1, 1980 | None | ||||||||||
| Nineteenth |
January 1, 1981 | 16 | 14-1/8% Series due 1991 | 40,000,000 | None | |||||||
| Twentieth |
August 1, 1982 | 17 | 15-3/4% Series due 1990-1992 | 60,000,000 | None | |||||||
| Twenty-First |
September 1, 1983 | 18 | 13-1/2% Series due 2013 | 60,000,000 | None | |||||||
| Twenty-Second |
March 1, 1984 | 19 | 13-1/4% Series due 1994 | 60,000,000 | None | |||||||
| Twenty-Third |
December 1, 1986 | 20 | 9-1/4% Series due 2016 | 80,000,000 | None | |||||||
| Twenty-Fourth |
January 1, 1988 | 21 | 10-3/8% Series due 2018 | 50,000,000 | None | |||||||
| Twenty-Fifth |
October 1, 1989 | 22
23 |
7-1/8% Series due 2013
7-2/5% Series due 2016 |
|
66,700,000
17,000,000 |
|
None
None | |||||
| Twenty-Sixth |
April 1, 1993 | 24 | Secured Medium-Term Notes, Series A ($250,000,000 authorized) | 250,000,000 | 43,000,000 | |||||||
| Twenty-Seventh |
January 1, 1994 | 25 | Secured Medium-Term Notes, Series B ($250,000,000 authorized) | 161,000,000 | None | |||||||
| Twenty-Eighth |
September 1, 2001 | 26 | Collateral Series due 2002 | 220,000,000 | None | |||||||
| Twenty-Ninth |
December 1, 2001 | 27 | 7.75% Series due 2007 | 150,000,000 | None | |||||||
| Thirtieth |
May 1, 2002 | 28 | Collateral Series due 2003 | 225,000,000 | None | |||||||
| Thirty-first |
May 1, 2003 | 29 | Collateral Series due 2004 | 245,000,000 | None | |||||||
| Thirty-second |
September 1, 2003 | 30 | 6.125% Series due 2013 | 45,000,000 | None | |||||||
A-2
| MORTGAGE OR SUPPLEMENTAL INDENTURE |
DATED AS OF |
SERIES | PRINCIPAL AMOUNT ISSUED |
PRINCIPAL AMOUNT OUTSTANDING | ||||||||
| NO. | DESIGNATION |
|||||||||||
| Thirty-third |
May 1, 2004 | 31 | Collateral Series due 2005 | 350,000,000 | None | |||||||
| Thirty-fourth |
November 1, 2004 | 32 | 5.45% Series due 2019 | 90,000,000 | 90,000,000 | |||||||
| Thirty-fifth |
December 1, 2004 | 33 | Collateral Series 2004A | 88,850,000 | 25,000,000 | |||||||
| Thirty-sixth |
December 1, 2004 | 34
35 |
Collateral Series 2004B
Collateral Series 2004C |
|
66,700,000
17,000,000 |
|
None
None | |||||
| Thirty-seventh |
December 1, 2004 | 36 | Collateral Series 2004D | 350,000,000 | None | |||||||
| Thirty-eighth |
May 1, 2005 | 37
38 |
Collateral Series 2005B
Collateral Series 2005C |
|
66,700,000
17,000,000 |
|
None
None | |||||
| Thirty-ninth |
November 1, 2005 | 39 | 6.25% Series due 2035 |
|
100,000,000
50,000,000 |
|
100,000,000
50,000,000 | |||||
| Fortieth |
April 1, 2006 | 40 | Collateral Series due 2011 | 320,000,000 | None | |||||||
| Forty-first |
December 1, 2006 | 41 | 5.70% Series due 2037 | 150,000,000 | 150,000,000 | |||||||
| Forty-second |
April 1, 2008 | 42 | 5.95% Series due 2018 | 250,000,000 | 250,000,000 | |||||||
| Forty-third |
November 1, 2008 | 43 | Collateral Series 2008A | 200,000,000 | None | |||||||
| Forty-fourth |
December 1, 2008 | 44 | 7.25% Series due 2013 | 30,000,000 | None | |||||||
| Forty-fifth |
December 1, 2008 | 45 | Collateral Series 2008B | 17,000,000 | None | |||||||
| Forty-sixth |
September 1, 2009 | 46 | 5.125% Series due 2022 | 250,000,000 | 250,000,000 | |||||||
A-3
| MORTGAGE OR SUPPLEMENTAL INDENTURE |
DATED AS OF |
SERIES | PRINCIPAL AMOUNT ISSUED |
PRINCIPAL AMOUNT OUTSTANDING | ||||||||
| NO. | DESIGNATION |
|||||||||||
| Forty-seventh |
September 1, 2009 | 47 | Collateral Series 2009A | 75,000,000 | None | |||||||
| Forty-eighth |
December 1, 2010 | 48
49 |
Collateral Series 2010A
Collateral Series 2010B |
|
66,700,000
17,000,000 |
|
66,700,000
17,000,000 | |||||
| Forty-ninth |
December 1, 2010 | 50
51 |
3.89% Series due 2020
5.55% Series due 2040 |
|
52,000,000
35,000,000 |
|
52,000,000
35,000,000 | |||||
| Fiftieth |
December 1, 2010 | 52 | 1.68% Series due 2013 | 50,000,000 | 50,000,000 | |||||||
| Fifty-first |
February 1, 2011 | 53 | Collateral Series 2011A | 400,000,000 | 400,000,000 | |||||||
| Fifty-second |
August 1, 2011 | None | ||||||||||
A-4
Exhibit B
FILING AND RECORDING OF
FIFTY-SECOND SUPPLEMENTAL INDENTURE
| FILING IN STATE OFFICES | ||||||
| State |
Office of |
Date |
Financing Statement Document Number | |||
| Washington |
Secretary of State | 10/3/11 | 2011-276-8759-8 | |||
| Idaho |
Secretary of State | 10/3/11 | B-2011-1098482-9 | |||
| Montana |
Secretary of State | 10/3/11 | 584162965 | |||
| Oregon |
Secretary of State | 10/3/11 | 89016226 | |||
| RECORDING IN COUNTY OFFICES | ||||||||||||
| Real Estate Mortgage Records |
Financing Statement Document Number | |||||||||||
| County |
Office of |
Date |
Document Number |
Book |
Page |
|||||||
| Washington |
||||||||||||
| Adams |
Auditor | 10/3/11 | 299010 | N/A | N/A | N/A | ||||||
| Asotin |
Auditor | 10/3/11 | 326440 | N/A | N/A | N/A | ||||||
| Benton |
Auditor | 10/3/11 | 2011-027745 | N/A | N/A | N/A | ||||||
| Douglas |
Auditor | 10/3/11 | 3154743 | N/A | N/A | N/A | ||||||
| Ferry |
Auditor | 10/3/11 | 279025 | N/A | N/A | N/A | ||||||
| Franklin |
Auditor | 10/3/11 | 1772588 | N/A | N/A | N/A | ||||||
| Garfield |
Auditor | 10/3/11 | 20110475 | N/A | N/A | N/A | ||||||
| Grant |
Auditor | 10/3/11 | 1291492 | N/A | N/A | N/A | ||||||
| Klickitat |
Auditor | 10/4/11 | 1095003 | N/A | N/A | N/A | ||||||
| Lewis |
Auditor | 10/3/11 | 3368800 | N/A | N/A | N/A | ||||||
| Lincoln |
Auditor | 10/3/11 | 2011-0459257 | 104 | 3663 | N/A | ||||||
| Pend Oreille |
Auditor | 10/3/11 | 20110309765 | N/A | N/A | N/A | ||||||
| Skamania |
Auditor | 10/3/11 | 2011179169 | N/A | N/A | N/A | ||||||
| Spokane |
Auditor | 10/3/11 | 6033806 | N/A | N/A | N/A | ||||||
| Stevens |
Auditor | 10/3/11 | 20110006752 | N/A | N/A | N/A | ||||||
| Thurston |
Auditor | 10/5/11 | 4231448 | N/A | N/A | N/A | ||||||
| Whitman |
Auditor | 10/3/11 | 706992 | N/A | N/A | N/A | ||||||
| Idaho |
||||||||||||
| Benewah |
Recorder | 10/3/11 | 261010 | N/A | N/A | N/A | ||||||
| Bonner |
Recorder | 10/3/11 | 816127 | N/A | N/A | N/A | ||||||
B-1
| Boundary |
Recorder | 10/3/11 | 252002 | N/A | N/A | N/A | ||||||
| Clearwater |
Recorder | 10/3/11 | 217704 | N/A | N/A | N/A | ||||||
| Idaho |
Recorder | 10/3/11 | 481056 | N/A | N/A | N/A | ||||||
| Kootenai |
Recorder | 10/3/11 | 2329568000 | N/A | N/A | N/A | ||||||
| Latah |
Recorder | 10/4/11 | 546901 | N/A | N/A | N/A |
| RECORDING IN COUNTY OFFICES | ||||||||||||
| Real Estate Mortgage Records |
Financing Statement Document Number | |||||||||||
| County |
Office of |
Date |
Document Number |
Book |
Page |
|||||||
|
Idaho (cont.) |
||||||||||||
| Lewis |
Recorder | 10/3/11 | 139814 | N/A | N/A | N/A | ||||||
| Nez Perce |
Recorder | 10/3/11 | 794696 | N/A | N/A | N/A | ||||||
| Shoshone |
Recorder | 10/3/11 | 464308 | N/A | N/A | N/A | ||||||
| Montana |
||||||||||||
| Big Horn |
Clerk & Recorder | 10/6/11 | 344808 | 117 | 897 | N/A | ||||||
| Broadwater |
Clerk & Recorder | 10/3/11 | 166078 | 138 | 825 | N/A | ||||||
| Golden Valley |
Clerk & Recorder | 10/3/11 | 80835 | M | 15711 | N/A | ||||||
| Meagher |
Clerk & Recorder | 10/3/11 | 139274 | N/A | N/A | N/A | ||||||
| Mineral |
Clerk & Recorder | 10/4/11 | 108507 | N/A | N/A | N/A | ||||||
| Rosebud |
Clerk & Recorder | 10/4/201 | 109082 | 134 | 187 | N/A | ||||||
| Sanders |
Clerk & Recorder | 10/3/11 | 73293 | N/A | N/A | N/A | ||||||
| Stillwater |
Clerk & Recorder | 10/3/11 | 349091 | N/A | N/A | N/A | ||||||
| Treasure |
Clerk & Recorder | 10/4/11 | 81635 | 20 | 64 | N/A | ||||||
| Wheatland |
Clerk & Recorder | 10/3/11 | 107027 | M | 23277 | N/A | ||||||
| Yellowstone |
Clerk & Recorder | 10/4/11 | 3601207 | N/A | N/A | N/A | ||||||
| Oregon |
||||||||||||
| Douglas |
Recorder | 10/3/11 | 2011-014313 | N/A | N/A | N/A | ||||||
| Jackson |
Recorder | 10/4/11 | 2011-30525 | N/A | N/A | N/A | ||||||
| Josephine |
Recorder | 10/4/11 | 2011-011347 | N/A | N/A | N/A | ||||||
| Klamath |
Recorder | 10/4/11 | 2011-011044 | N/A | N/A | N/A | ||||||
| Morrow |
Recorder | 10/3/11 | 2011-28882 | N/A | N/A | N/A | ||||||
| Union |
Recorder | 10/4/11 | 20113298 | N/A | N/A | N/A | ||||||
| Wallowa |
Recorder | 10/3/11 | 66107 | N/A | N/A | N/A | ||||||
B-2
Exhibit C
PROPERTY ADDITIONS
First
THE ADDITIONAL ELECTRIC SUBSTATIONS AND SUBSTATION SITES OF THE COMPANY, in the States of Idaho and Washington, including all buildings, structures, towers, poles, equipment, appliances and devices for transforming, converting and distributing electric energy, and the lands of the company on which the same are situated and all of the company’s real estate and interests therein, machinery, equipment, appliances, devices, appurtenances and supplies, franchises, permits and other rights and other property forming a part of said substations or any of them, or used or enjoyed or capable of being used or enjoyed in connection with any thereof, including, but not limited to, the following situated in the States of Idaho and Washington, to wit:
| 1. | Latah County, Idaho: “Deary 115kV Substation”; Property No. ID-1L-033; Grantor: Estate of Gerald E. Johnson; Ptn of NE/4 NW/4 in Section 19, Township 40 North, Range 1 West, B.M. |
| 2. | Spokane County, Washington: “College & Walnut 115kV Substation”; Property No. WA-32-044; Grantor: River Front Properties, LLC; Lots 1, 4 & 5, portion of Lots 2 & 3, all in Block 8, Chandler’s Second Addition to Spokane Falls, situate in SE/4 of Section 13, Township 25 North, Range 42 East, W.M. |
Second
ADDITIONAL PROTECTION, MITIGATION AND ENHANCEMENT PROPERTY of the Company, in the States of Idaho and Montana, real, personal, or mixed, acquired, constructed and/or installed in, on, under and/or proximate to the Company’s Clark Fork hydroelectric development (including, without limitation, the Cabinet Gorge Hydroelectric Generating Station and the Noxon Rapids Hydroelectric generating Station) for the purpose of protecting and/or enhancing wildlife (including fish and aquatic life), botanical life and/or wetlands, and/or mitigating any harm or damage thereto, and all other property, real, personal or mixed, used or enjoyed or capable of being used or enjoyed in conjunction therewith, including, but not limited to, the following in the States of Idaho and Montana, to wit:
| 1. | Bonner County, Idaho: “Cabinet Gorge Mitigation”: Property No. ID-7B-251; Grantor: Greg S. and Pamela B. Wolf; Portion NE/4, Section 15, Township 57 North, Range 1 East, B.M. |
| 2. | Spokane County, Washington: “Long Lake HED”; Property No. WA-32-257; Grantor: David K. and Reynetta G. Deveau; Portion of SE/4 in Section 30, Township 27 North, Range 40 East, W.M. |
C-1
Exhibit D
(Form of Bond)
The Bonds evidenced hereby have not been registered under the Securities Act of 1933, as amended (the “Securities Act”) and may not be offered, sold, pledged or otherwise transferred in contravention of the Securities Act.
PPN 05379B B@5
AVISTA CORPORATION
First Mortgage Bond,
4.45% Series due 2041
| REGISTERED | REGISTERED | |||
| NO. | $ | |||
AVISTA CORPORATION, a corporation of the State of Washington (hereinafter called the Company), for value received, hereby promises to pay to , or registered assigns, on December 14, 2041
DOLLARS
and to pay the registered owner hereof interest thereon semi-annually in arrears on June 1 and December 1 in each year (each such date being hereinafter called an “Interest Payment Date”), commencing June 1, 2012 and at Maturity (as hereinafter defined), at the rate of four and forty-five one hundredths percentum (4.45%) per annum computed on the basis of a 360-day year consisting of twelve 30-day months, until the Company’s obligation with respect to the payment of such principal shall have been discharged. This bond shall bear interest from December 14, 2011 or from the most recent Interest Payment Date on or prior to the date of this bond to which interest on the bonds of this series has been paid. The principal of and premium, if any, and interest on this bond payable at Maturity shall be payable upon presentation hereof at the office or agency of the Company in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for public and private debts. The interest on this bond (other than interest payable at Maturity) shall be paid by check, in the similar coin or currency, mailed to the registered owner hereof as of the close of business on the Business Day next preceding each Interest Payment Date (each such date being herein called a “Record Date”); provided, however, that if such registered owner shall be a securities depositary, such payment shall be made by such other means in lieu of check as shall be agreed upon by the Company, the Trustee and such registered owner; and provided further that, so long as this Bond shall be held by an Institutional Investor (as defined in the Fifty-third Supplemental Indenture referred to below), payment of principal of and premium, if any, and interest on this Bond shall be payable in the manner specified in the Bond Purchase Agreement (as defined in such Fifty-third Supplemental Indenture). Interest payable at Maturity shall be paid to the person to whom principal shall be paid. As used herein, the term “Maturity” shall mean the date on which the principal of this bond becomes due and payable, whether at stated maturity, upon redemption or acceleration, or otherwise.
D-1
This bond is one of an issue of bonds of the Company issuable in series and is one of a series known as its First Mortgage Bonds, 4.45% Series due 2041, all bonds of all such series being issued and issuable under and equally secured (except insofar as any sinking or other fund, established in accordance with the provisions of the Mortgage hereinafter mentioned, may afford additional security for the bonds of any particular series) by a Mortgage and Deed of Trust, dated as of June 1, 1939 (the “Original Mortgage”), executed by the Company (formerly known as The Washington Water Power Company) to City Bank Farmers Trust Company and Ralph E. Morton, as Trustees (Citibank, N.A., successor Trustee to both said Trustees). The Original Mortgage has been amended and supplemented by various supplemental indentures, including the Fifty-third Supplemental Indenture, dated as of December 1, 2011 (the “Fifty-third Supplemental Indenture”), and, as so amended and supplemented, is herein called the “Mortgage”. Reference is made to the Mortgage for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the holders of the bonds and of the Trustee in respect thereof, the duties and immunities of the Trustee and the terms and conditions upon which the bonds are and are to be secured and the circumstances under which additional bonds may be issued. If there shall be a conflict between the terms of this bond and the provisions of the Mortgage, the provisions of the Mortgage shall control to the extent permitted by law. The holder of this bond, by its acceptance hereof, shall be deemed to have consented and agreed to all of the terms and provisions of the Mortgage and, further, in the event that such holder shall not be the sole beneficial owner of this bond, shall be deemed to have agreed to use all commercially reasonable efforts to cause all direct and indirect beneficial owners of this bond to have knowledge of the terms and provisions of the Mortgage and of this bond and to comply therewith, including particularly, but without limitation, any provisions or restrictions in the Mortgage regarding the transfer or exchange of such beneficial interests and any legend set forth on this bond.
D-2
The Mortgage may be modified or altered by affirmative vote of the holders of at least 60% in principal amount of the bonds outstanding under the Mortgage, considered as one class, or, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected, then such modification or alteration may be effected with the affirmative vote only of 60% in principal amount of the bonds outstanding of the series so to be affected, considered as one class, and, furthermore, for limited purposes, the Mortgage may be modified or altered without any consent or other action of holders of any series of bonds. No modification or alteration shall, however, permit an extension of the Maturity of the principal of, or interest on, this bond or a reduction in such principal or the rate of interest hereon or any other modification in the terms of payment of such principal or interest or the creation of any lien equal or prior to the lien of the Mortgage or deprive the holder of a lien on the mortgaged and pledged property without the consent of the holder hereof.
The principal hereof may be declared or may become due prior to the stated maturity date on the conditions, in the manner and at the time set forth in the Mortgage, upon the occurrence of a Completed Default as in the Mortgage provided.
As provided in the Mortgage and subject to certain limitations therein set forth, this bond or any portion of the principal amount hereof will be deemed to have been paid if there has been irrevocably deposited with the Trustee moneys or direct obligations of or obligations guaranteed by the United States of America, the principal of and interest on which when due, and without regard to any reinvestment thereof, will provide moneys which, together with moneys so deposited, will be sufficient to pay when due the principal of and premium, if any, and interest on this bond when due.
The Mortgage contains terms, provisions and conditions relating to the consolidation or merger of the Company with or into, and the conveyance or other transfer, or lease, of assets to, another corporation and to the assumption by such other corporation, in certain circumstances, of all of the obligations of the Company under the Mortgage and on the bonds secured thereby.
In the manner prescribed in the Mortgage, this bond is transferable by the registered owner hereof in person, or by his duly authorized attorney, at the office or agency of the Company in the Borough of Manhattan, The City of New York, upon surrender and cancellation of this bond, together with a written instrument of transfer whenever required by the Company duly executed by the registered owner or by its duly authorized attorney, and, thereupon, a new fully registered bond of the same series for a like principal amount will be issued to the transferee in exchange herefor as provided in the Mortgage. The Company and the Trustee may deem and treat the person in whose name this bond is registered as the absolute owner hereof for the purpose of receiving payment and for all other purposes.
In the manner prescribed in the Mortgage, any bonds of this series, upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City of New York, are exchangeable for a like aggregate principal amount of bonds of the same series of other authorized denominations.
D-3
The bonds of this series shall be redeemable in whole at any time or in part from time to time, at the option of the Company, upon notice mailed as provided in Section 52 of the Mortgage, at the option of the Company at a redemption price equal to the greater of
(a) 100% of the principal amount of the bonds being redeemed, and
(b) the sum of the present values of the remaining scheduled payments of principal of and interest (not including any portion of any scheduled payment of interest which accrued prior to the redemption date) on the bonds being redeemed discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at a discount rate equal to the Treasury Yield (as hereinafter defined) plus 50 basis points,
plus, in the case of either (a) or (b) above, whichever is applicable, accrued interest on such Bonds to the date of redemption.
“Treasury Yield” means, with respect to any redemption of the bonds of this series, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price. The Treasury Yield shall be calculated as of the third business day preceding the redemption date (the “Calculation Date”).
“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the bonds of this series that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the bonds.
“Comparable Treasury Price” means, (A) the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the Calculation Date, as set forth in the H.15 Daily Update of the Federal Reserve Bank of New York or (B) if such release (or any successor release) is not published or does not contain such prices on such business day, the Reference Treasury Dealer Quotation for the Calculation Date.
“H.15(519)” means the weekly statistical release entitled “Statistical Release H.15 (519)”, or any successor publication, published by the Board of Governors of the Federal Reserve System.
D-4
“H.15 Daily Update” means the daily update of H.15(519) available through the worldwide website of the Board of Governors of the Federal Reserve System or any successor site or publication.
“Independent Investment Banker” means Merrill Lynch, Pierce, Fenner & Smith Incorporated or, if so determined by the Company, any other independent investment banking institution of national standing appointed by the Company and reasonably acceptable to the Trustee.
“Reference Treasury Dealer Quotation” means, with respect to the Reference Treasury Dealer, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount and quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the Calculation Date).
“Reference Treasury Dealer” means a primary U.S. Government securities dealer in New York City appointed by the Company and reasonably acceptable to the Trustee.
Except as provided above, the bonds of this series are not redeemable prior to their stated maturity date.
No recourse shall be had for the payment of the principal of or premium, if any, or interest on this bond against any incorporator or any past, present or future subscriber to the capital stock, stockholder, officer or director of the Company or of any predecessor or successor corporation, as such, either directly or through the Company or any predecessor or successor corporation, under any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, all such liability of incorporators, subscribers, stockholders, officers and directors being released by the holder or owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Mortgage.
This bond shall not become obligatory until Citibank, N.A., the Trustee under the Mortgage, or its successor thereunder, shall have signed the form of certificate endorsed hereon.
D-5
IN WITNESS WHEREOF, AVISTA CORPORATION has caused this bond to be signed in its corporate name by its President or one of its Vice Presidents by his signature or a facsimile thereof, and its corporate seal to be impressed or imprinted hereon and attested by its Corporate Secretary or one of its Assistant Corporate Secretaries by his signature or a facsimile thereof.
| Dated: | AVISTA CORPORATION | |||
| By: |
| |||
| Name: | ||||
| Title: | ||||
| ATTEST: |
| |
| Name: | ||
| Title: |
D-6
TRUSTEE’S CERTIFICATE
This bond is one of the bonds of the series herein designated, described or provided for in the within-mentioned Mortgage.
| CITIBANK, N.A. | ||
| Trustee | ||
| By |
| |
| Authorized Signatory | ||
D-7
Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER THEREUNDER
This First Amendment to Credit Agreement and Waiver Thereunder (this “Amendment”), dated as of December 14, 2011, is entered into by AVISTA CORPORATION, a Washington corporation (the “Borrower”), the financial institutions identified on the signature pages hereof as “Continuing Lenders” (the “Continuing Lenders”), the financial institutions identified on the signature pages hereof as “Exiting Lenders” (the “Exiting Lenders”), the financial institutions identified on the signature pages hereof as “New Lenders” (the “New Lenders” and, together with the Continuing Lenders and the Exiting Lenders, the “Lenders”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as an Issuing Bank, and UNION BANK, N.A., as Administrative Agent (the “Administrative Agent”) and an Issuing Bank.
Recitals
A. The parties hereto, other than the New Lenders, are party to a Credit Agreement dated as of February 11, 2011 (the “Credit Agreement”). Terms defined in the Credit Agreement and not otherwise defined herein have the same respective meanings when used herein, and the provisions of Section 1.02 of the Credit Agreement are incorporated herein by reference.
B. The Borrower, the Continuing Lenders and the New Lenders wish to revise the pricing terms of the Credit Agreement, extend the Expiration Date pursuant to Section 2.20 of the Credit Agreement and restate Schedule 2.01 to the Credit Agreement, and the Lenders wish to waive certain requirements of Section 2.20 of the Credit Agreement. Accordingly, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Lenders, the Issuing Banks and the Administrative Agent hereby agree as set forth below.
SECTION 1. Amendments to Credit Agreement. Subject to satisfaction of the conditions precedent set forth in Section 3 of this Amendment, the Borrower, the Continuing Lenders and the New Lenders hereby agree that the Credit Agreement is amended as set forth below.
(a) The definition of “Applicable Rate” in Section 1.01 of the Credit Agreement is amended in full to read as follows:
“‘Applicable Rate’ shall mean, on any date with respect to the Facility Fee, Eurodollar Loans, ABR Loans or the LC Participation Fee, the rate per annum set forth in the following table in the ‘Facility Fee,’ ‘Eurodollar Margin,’ ‘ABR Margin’ or ‘LC Participation Fee’ column, as applicable, for the Pricing Level in effect for such date.
| Pricing Level |
Facility Fee | Eurodollar Margin | ABR Margin | LC Participation Fee | ||||
| I |
0.100% | 0.775% | 0.000% | 0.775% | ||||
| II |
0.125% | 0.875% | 0.000% | 0.875% | ||||
| III |
0.175% | 0.950% | 0.000% | 0.950% | ||||
| IV |
0.200% | 1.050% | 0.050% | 1.050% | ||||
| V |
0.250% | 1.250% | 0.250% | 1.250% | ||||
| VI |
0.300% | 1.450% | 0.450% | 1.450% |
For purposes of determining which Pricing Level is applicable in the foregoing table, the following rules will apply:
‘Pricing Level I’ will be applicable at any date if, at such date, the Senior Debt Rating is Fifth Lowest Investment Grade or higher;
‘Pricing Level II’ will be applicable at any date if, at such date, the Senior Debt Rating is Fourth Lowest Investment Grade and Pricing Level I is not applicable;
“Pricing Level III” will be applicable at any date if, at such date, the Senior Debt Rating is Third Lowest Investment Grade and neither Pricing Level I nor Pricing Level II is applicable;
‘Pricing Level IV’ will be applicable at any date if, at such date, the Senior Debt Rating is Second Lowest Investment Grade and none of Pricing Level I, Pricing Level II or Pricing Level III is applicable;
‘Pricing Level V’ will be applicable at any date if, at such date, the Senior Debt Rating is Lowest Investment Grade and none of Pricing Level I, Pricing Level II, Pricing Level III or Pricing Level IV is applicable;
‘Pricing Level VI’ will be applicable at any date if, at such date, (i) the Senior Debt Rating is Highest Non-Investment Grade or lower or (ii) there is no applicable Senior Debt Rating.”
(b) The definition of “Expiration Date” in Section 1.01 of the Credit Agreement is amended in full to read as follows:
“‘Expiration Date’ shall mean February 10, 2017.”
(c) Schedule 2.01 to the Credit Agreement is amended in full to be in the form attached hereto as Schedule 2.01.
SECTION 2. Waivers. Subject to satisfaction of the conditions precedent set forth in Section 3 of this Amendment, the Lenders hereby waive (a) the notice provided for in Section 2.20(a) of the Credit Agreement with respect to extension of the Expiration Date, (b) the provisions of Section 2.20(f) of the Credit Agreement, to the extent different from the provisions of Section 5 hereof, and (c) the condition specified in Section 4.03(a) of the Credit Agreement that no Loans be outstanding on the date of extension of the Expiration Date pursuant to Section 2.20.
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SECTION 3. Conditions Precedent. This Amendment shall become effective on the date (the “Effective Date”), not later than December 30, 2011, on which all of the conditions set forth below have been fulfilled.
(a) The Administrative Agent shall have received all of the following, each dated the Effective Date (unless otherwise specified below), in form and substance satisfactory to the Administrative Agent and in the number of originals requested thereby:
(i) this Amendment, duly executed by the Borrower, the Lenders and the Issuing Banks;
(ii) evidence that the Borrower has furnished to the trustee under the First Mortgage the evidence of extension contemplated by Article I, Section 1, subsection (II)(h) of the Supplemental Indenture;
(iii) opinions of Davis Wright Tremaine LLP, counsel to the Borrower, Hawley Troxell Ennis & Hawley LLP, Idaho counsel to the Borrower, and Crowley Fleck PLLP, Montana counsel to the Borrower (or such other firm or firms approved by the Administrative Agent), each addressed to the Administrative Agent, the Lenders and the Issuing Banks (or, in the case of the latter two opinions, addressed to Davis Wright Tremaine LLP), with respect to such matters relating to (A) the Borrower, (B) this Amendment and each Commitment Extension Supplement delivered pursuant hereto (the “Amendment Documents”) and (C) the Loan Documents as amended by the Amendment Documents as the Administrative Agent or any Lender or Issuing Bank may reasonably request (the Borrower hereby instructing each such counsel to deliver its opinion to the Administrative Agent);
(iv) evidence satisfactory to the Administrative Agent that the Borrower has obtained all consents and approvals of, and has made all filings and registrations with, any Governmental Authority required in order to consummate the Transactions (as defined in Section 4(b) hereof), in each case without the imposition of any condition that, in the judgment of the Administrative Agent, could adversely affect the rights or interests of the Lenders, the Issuing Banks or the Administrative Agent under any of the Amendment Documents or the Loan Documents as amended thereby;
(v) a copy of the articles of incorporation of the Borrower (as most recently amended and restated), including all amendments thereto, certified as of a recent date by the Secretary of State of the State of Washington;
(vi) certificates, each dated as of a recent date, from the appropriate Governmental Authorities of the States of Washington, Idaho, Montana and Oregon as to the good standing of the Borrower to do business in those states;
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(vii) a certificate of the Secretary or Assistant Secretary of the Borrower certifying (A) that attached thereto is a true and complete copy of the restated articles of incorporation and the bylaws of the Borrower as in effect on the Effective Date of this Amendment and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors of the Borrower authorizing the Transactions, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certification with respect thereto furnished pursuant to clause (v) above and (D) as to the incumbency and specimen signature of each officer executing any Amendment Document or any other document delivered in connection therewith on behalf of the Borrower;
(viii) a certificate of another officer of the Borrower as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate provided pursuant to clause (vii) above;
(ix) a certificate of a Financial Officer of the Borrower certifying that the representations and warranties set forth in Sections 4(f) and (g) of this Amendment are true and correct;
(x) an endorsement or other written assurance, dated as of a recent date, provided by First American Title Insurance Company confirming that title insurance policy number NSL 31426-SEA issued thereby, including all endorsements thereto (collectively the “Title Policy”), (A) insures the Lien of the First Mortgage (including as modified by the Supplemental Indenture) securing the First Mortgage Bond, in each case with the Expiration Date extended to February 10, 2017, (B) insures the trustee under the First Mortgage as the insured party and (C) insures the Borrower’s title to the real property subject to the Lien of the First Mortgage, and the validity and first priority of the Lien of the First Mortgage (subject to Liens permitted to exist by the terms of the First Mortgage), in an amount not less than $785,000,000, certified by a Financial Officer of the Borrower;
(xi) a Commitment Extension Supplement with respect to each Additional Commitment Lender, duly executed by such Additional Commitment Lender, the Borrower and each Issuing Bank;
(xii) an Administrative Questionnaire, duly executed by each New Lender; and
(xiii) such other documents as the Administrative Agent or any Lender, or legal counsel to any of them, may reasonably request.
(b) All fees payable by the Borrower to the Administrative Agent, the “Co-Lead Arrangers” identified on the cover page of the Credit Agreement, the Issuing Banks, the Lenders or any of their respective Affiliates on or prior to the Effective Date with respect to this Amendment, and all amounts payable by the Borrower pursuant to Section 10.05 of the Credit Agreement for which invoices have been delivered to the Borrower on or prior to the Effective Date, shall have been paid in full or arrangements satisfactory to the Administrative Agent shall have been made to cause them to be paid in full.
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(c) All legal matters incident to the Amendment Documents, the Loan Documents as amended thereby and the Transactions shall be reasonably satisfactory to the Administrative Agent, the Lenders, the Issuing Banks and their respective legal counsel.
SECTION 4. Representations and Warranties. In order to induce the Lenders, the Issuing Banks and the Administrative Agent to enter into this Amendment, the Borrower represents and warrants to them as set forth below.
(a) The Borrower has the corporate power and authority (i) to execute and deliver the Amendment Documents, (ii) to perform its obligations under the Amendment Documents and under the Loan Documents as amended thereby and (iii) to borrow Loans and procure the issuance of Letters of Credit.
(b) The execution and delivery of the Amendment Documents by the Borrower, the performance by the Borrower of its obligations under the Amendment Documents and the Loan Documents as amended thereby, and the borrowing of Loans and procurement of Letters of Credit under the Credit Agreement as amended hereby (collectively the “Transactions”), (i) have been duly authorized by all requisite corporate and, if required, stockholder action and (ii) will not (A) violate any provision of law, statute, rule or regulation the violation of which could reasonably be expected to impair the validity or enforceability of any Amendment Document or any Loan Document as amended thereby or materially impair the rights of or benefits available to the Lenders, the Issuing Banks or the Administrative Agent under any Amendment Document or any Loan Document as amended thereby, (B) violate any provision of the certificate or articles of incorporation or other constitutive documents or bylaws of the Borrower or any Significant Subsidiary, (C) violate any order of any Governmental Authority the violation of which could reasonably be expected to impair the validity or enforceability of any Amendment Document or any Loan Document as amended thereby or materially impair the rights of or benefits available to the Lenders, the Issuing Banks or the Administrative Agent under any Amendment Document or any Loan Document as amended thereby, (D) violate any provision of any indenture or other material agreement or instrument evidencing or relating to borrowed money to which the Borrower or any Significant Subsidiary is a party or by which any of them or any of their property is or may be bound, in a manner that could reasonably be expected to impair the validity or enforceability of any Amendment Document or any Loan Document as amended thereby or materially impair the rights of or benefits available to the Lender, the Issuing Banks or the Administrative Agent under any Amendment Document or any Loan Document as amended thereby, (E) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument in a manner that could reasonably be expected to impair the validity or enforceability of any Amendment Document or any Loan Document as amended thereby or materially impair the rights of or benefits available to the Lenders, the Issuing Banks or the Administrative Agent under any Amendment Document or any Loan Document as amended thereby or (F) result in the creation or imposition under any such indenture, agreement or other instrument of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower.
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(c) This Amendment has been duly executed and delivered by the Borrower and constitutes, and each other Amendment Document when executed and delivered by the Borrower will constitute, a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms.
(d) No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the Transactions, except such as have been made or obtained and are in full force and effect.
(e) The First Mortgage constitutes a valid and perfected first-priority Lien on the collateral purported to be encumbered thereby (subject to Liens permitted to exist by the terms of the First Mortgage), enforceable against all third parties in all jurisdictions, and secures the payment of all obligations of the Borrower under the First Mortgage Bond, and the execution, delivery and performance of this Amendment and the other Amendment Documents do not adversely affect the Lien of the First Mortgage.
(f) The representations and warranties set forth in the Credit Agreement and in each other Loan Document are true and correct in all material respects on and as of the Effective Date after giving effect to the Amendment Documents, except to the extent such representations and warranties expressly relate to an earlier date.
(g) No Default or Event of Default has occurred and is continuing either before or after giving effect to the Amendment Documents.
SECTION 5. Assignment of Loans, LC Disbursements and LC Participations to Reflect Revised Commitments.
(a) On the Effective Date, each Additional Commitment Lender shall purchase, as an assignment from the Exiting Lenders, such portions of the Exiting Lenders’ Commitments, Loans, unreimbursed LC Disbursements and participations in Letters of Credit outstanding at such time such that, after giving effect to such assignments, the respective aggregate amount of Commitments, Loans, unreimbursed LC Disbursements and participations in Letters of Credit of each Additional Commitment Lender shall be equal to its Pro Rata Share (determined by reference to Schedule 2.01 attached hereto) of the aggregate Commitments, Loans, unreimbursed LC Disbursements and participations in Letters of Credit outstanding. The purchase price for the Commitments, Loans, unreimbursed LC Disbursements and participations in Letters of Credit so assigned shall be the sum of (i) the principal amount of the Loans and unreimbursed LC Disbursements so assigned plus the amount of accrued and unpaid interest thereon as of the date of assignment, (ii) the amount of accrued and unpaid LC Participation Fees as of the date of assignment on the participations in Letters of Credit so assigned and (iii) the amount of accrued and unpaid Facility Fees as of the date of assignment on the Commitments so assigned. Each Additional Commitment Lender shall pay the aggregate purchase price payable by it to the Administrative Agent on the Effective Date, and the Administrative Agent shall promptly forward to each Exiting Lender the portion thereof payable to it. Upon payment of the applicable amounts to the Exiting Lenders, the Exiting Lenders shall automatically be deemed to have sold and made the applicable assignments to the Additional Commitment Lenders and shall be released from their respective obligations under the Loan Documents, and the Additional Commitment Lenders shall automatically be deemed to have purchased and accepted such assignments from the Exiting Lenders and, in the case of each Additional Commitment Lender not already a Lender under the Credit Agreement, shall become parties to the Credit Agreement and, to the extent of the interests assigned thereto, have the rights and obligations of Lenders under the Credit Agreement and the other Loan Documents.
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(b) Without limiting the foregoing, upon the effectiveness of the assignments contemplated by clause (a) above, (i) each Exiting Lender shall be discharged from its Commitment and other obligations (other than the return of its Note) under the Credit Agreement and shall no longer be a Lender thereunder, (ii) the Borrower, the Administrative Agent and the Issuing Banks shall be deemed to have consented to the assignments effected pursuant to clause (a) above, and (iii) the Administrative Agent shall record the Commitments, Loans and LC Disbursements of each Additional Commitment Lender and each Exiting Lender as provided in Section 10.04 of the Credit Agreement to reflect such assignments.
SECTION 6. Effect of Amendment on Interest and Fee Rates. Changes in interest rates and fee rates effected by this Amendment shall apply with respect to interest and fees accruing on or after the Effective Date, and interest rates and fee rates in effect before the Effective Date shall apply with respect to interest and fees accrued before the Effective Date.
SECTION 7. Reference to and Effect on Loan Documents.
(a) On and after the effective date of this Amendment, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement,” “thereunder,” “thereof,” “therein” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as amended by this Amendment.
(b) Except as specifically amended above, the Credit Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed. Without limiting the generality of the foregoing, the First Mortgage and all of the collateral described therein do and shall continue to secure the payment of all obligations under the First Mortgage Bond, as amended hereby.
(c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent, any Issuing Bank or any Lender under any of the Loan Documents or constitute a waiver of any provision of any of the Loan Documents, except as expressly provided herein.
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SECTION 8. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier or e-mail shall be effective as delivery of an originally executed counterpart of this Amendment.
SECTION 9. Governing Law. THIS AMENDMENT AND THE OTHER AMENDMENT DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. Headings. Section headings in this Amendment are for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
[Signature pages follow.]
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The parties hereto have caused this Amendment to be executed by their respective duly authorized representatives as of the date first written above.
| AVISTA CORPORATION | ||
| By: | /s/ Mark T. Thies | |
| Name: Mark T. Thies | ||
| Title: Senior Vice President and Chief Financial Officer | ||
| First Amendment to Credit Agreement and Waiver Thereunder | S-1 |
| UNION BANK, N.A., as Administrative Agent, an Issuing Bank and a Continuing Lender | ||
| By: | /s/ Bryan P. Read | |
| Name: | Bryan P. Read | |
| Title: | Vice President |
| First Amendment to Credit Agreement and Waiver Thereunder | S-2 |
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as an Issuing Bank and a Continuing Lender | ||
| By: | /s/ Tom Beil | |
| Name: Tom Beil | ||
| Title: Senior Vice President | ||
| First Amendment to Credit Agreement and Waiver Thereunder | S-3 |
| THE BANK OF NEW YORK MELLON, as a Continuing Lender | ||
| By: | /s/ Mark W. Rogers | |
| Name: | Mark W. Rogers | |
| Title: | Vice President |
| First Amendment to Credit Agreement and Waiver Thereunder | S-4 |
| KEYBANK NATIONAL ASSOCIATION, as a Continuing Lender | ||
| By: | /s/ Keven D. Smith | |
| Name: | Keven D. Smith | |
| Title: | Senior Vice President |
| First Amendment to Credit Agreement and Waiver Thereunder | S-5 |
| U.S. BANK NATIONAL ASSOCIATION, as a Continuing Lender | ||
| By: | /s/ Raymond J. Palmer | |
| Name: | Raymond J. Palmer | |
| Title: | Senior Vice President |
| First Amendment to Credit Agreement and Waiver Thereunder | S-6 |
| BANK OF AMERICA, N.A., as a Continuing Lender | ||
| By: | /s/ Mark N. Crawford | |
| Name: | Mark N. Crawford | |
| Title: | Senior Vice President |
| First Amendment to Credit Agreement and Waiver Thereunder | S-7 |
| JPMORGAN CHASE BANK, N.A., as a Continuing Lender | ||
| By: | /s/ John E. Zur | |
| Name: | John E. Zur | |
| Title: | Authorized Officer |
| First Amendment to Credit Agreement and Waiver Thereunder | S-8 |
| UBS LOAN FINANCE LLC, as a Continuing Lender | ||
| By: | /s/ Irja R. Otsa | |
| Name: | Irja R. Otsa | |
| Title: | Associate Director |
| By: | /s/ Mary E. Evans | |
| Name: | Mary E. Evans | |
| Title: | Associate Director |
| First Amendment to Credit Agreement and Waiver Thereunder | S-9 |
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Continuing Lender | ||
| By: | /s/ William O’Daly | |
| Name: | William O’Daly | |
| Title: | Director |
| By: | /s/ Sanja Gazahi | |
| Name: | Sanja Gazahi | |
| Title: | Associate |
| First Amendment to Credit Agreement and Waiver Thereunder | S-10 |
| COBANK, ACB, as a New Lender | ||
| By: | /s/ Josh Batchelder | |
| Name: | Josh Batchelder | |
| Title: | Vice President |
| First Amendment to Credit Agreement and Waiver Thereunder | S-11 |
| BANNER BANK, as a Continuing Lender | ||
| By: | /s/ Ben Luety | |
| Name: | Ben Luety, CPA | |
| Title: | Assistant Vice President |
| First Amendment to Credit Agreement and Waiver Thereunder | S-12 |
| BANK HAPOALIM B.M., as an Exiting Lender | ||
| By: | /s/ Helen H. Gateson | |
| Name: | Helen H. Gateson | |
| Title: | Vice President |
| By: | /s/ Frederic S. Becker | |
| Name: | Frederic S. Becker | |
| Title: | Senior Vice President |
| First Amendment to Credit Agreement and Waiver Thereunder | S-13 |
| CIBC INC., as an Exiting Lender | ||
| By: | /s/ Robert W. Casey Jr. | |
| Name: | Robert W. Casey Jr. | |
| Title: | Authorized Signatory |
| By: | /s/ Joshua J. Hogarth | |
| Name: | Joshua J. Hogarth | |
| Title: | Authorized Signatory |
| First Amendment to Credit Agreement and Waiver Thereunder | S-14 |
| COMERICA BANK, as an Exiting Lender | ||
| By: | /s/ Steve Clear | |
| Name: | Steve Clear | |
| Title: | Vice President |
| First Amendment to Credit Agreement and Waiver Thereunder | S-15 |
| FIRST COMMERCIAL BANK LTD., | ||
| NEW YORK BRANCH, as an Exiting Lender | ||
| By: | /s/ Jason Lee | |
| Name: | Jason Lee | |
| Title: | Vice President and General Manager |
| First Amendment to Credit Agreement and Waiver Thereunder | S-16 |
| SCOTIABANK INC., as an Exiting Lender | ||
| By: | /s/ J.F. Todd | |
| Name: | J.F. Todd | |
| Title: | Managing Director |
| First Amendment to Credit Agreement and Waiver Thereunder | S-17 |
SCHEDULE 2.01
Names, Commitments and Addresses of Lenders
| Lender |
Commitment | |||
| Union Bank, N.A. 445 South Figueroa Street Los Angeles, CA 90071 Attention: Bryan Read Telecopy: 213-236-4096 |
$ | 60,000,000 | ||
| Wells Fargo Bank, National Association 601 West 1st Avenue, Suite 900 Spokane, WA 99201 Attention: Tom Beil / Jessy Hummel Telecopy: 866-917-7929 |
$ | 60,000,000 | ||
| The Bank of New York Mellon BNY Mellon Center, Room 3600 Pittsburgh, PA 15258-0001 Attention: Mark W. Rogers Telecopy: 412-236-6112 |
$ | 42,500,000 | ||
| KeyBank National Association 601 108th Avenue Bellevue, WA 98004 Attention: Keven Smith Telecopy: 425-709-4348 |
$ | 42,500,000 | ||
| U.S. Bank National Association 101 South Capitol Boulevard Boise, ID 83712 Attention: Holland Williams Telecopy: 208-383-7574 |
$ | 42,500,000 | ||
| Bank of America, N.A. 800 5th Avenue, Floor 36 WA 1-501-36-06 Seattle, WA 98104 Attention: Mark Crawford Telecopy: 206-585-8638 |
$ | 33,725,000 | ||
| Lender |
Commitment | |||
| JPMorgan Chase Bank, N.A. 10 South Dearborn Street, Floor 9 Chicago, IL 60603 Attention: John Zur Telecopy: 312-732-1762 |
$ | 33,725,000 | ||
| UBS Loan Finance LLC 677 Washington Boulevard Stamford, CT 06901 Attention: Denise Bushee Telecopy: 203-719-3888 |
$ | 33,725,000 | ||
| Credit Suisse AG, Cayman Islands Branch 11 Madison Avenue New York, NY 10010 Attention: William O’Daly Telecopy: 212-743-2254 |
$ | 21,012,500 | ||
| CoBank, ACB 5500 South Quebec Street Greenwood Village, CO 80111 Attention: Josh Batchelder Telecopy: 303-740-4120 |
$ | 20,000,000 | ||
| Banner Bank 802 West Riverside Avenue Spokane, WA 99201 Attention: Ben Luety Telecopy: 509-482-5765 |
$ | 10,312,500 | ||
|
|
|
|||
| Total: |
$ | 400,000,000 | ||
2