20180924Thies Exhibit 12.pdf

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ON BETIAIJE OF AVISTA CORPORATION
DAVID J. MEYER
VICE PRES]DENT AND CHIEF COUNSEL FOR
REGULATORY & GOVERNMENTAL AFEA]RS
P.O. BOX 3121
]-41-]- EAST MISS]ON AVENUE
SPOKANE, VIASHfNGTON 99220-3721
TELEPHONE: [phone]
FACSIMILE: [phone]
DAVI D . MEYERGAVI STACORP . COM
ON BEHAI,F OE. HYDRO ONE I,IMITED
ELIZABETH THOMAS, PARTNER
KARI VANDER STOEP, PARTNER
K&L GATES LLP
925 FOURTH AVENUE, SUITE 29OO
SEATTLE, VIA 981014-1158
TELEPHoNE: [phone]
FACSIMILE: [phone]
L] Z . THOMASGKLGATES . COM
KARI . VAN DERSTOEP G KLGATES . COM
BEFORE THE IDAIIO PT'BLIC UTILITIES COMMISSION
IN THE MATTER OE THE JOINT
APPLICATION OE HYDRO ONE LIMITED
(ACTING THROUGH ITS INDIRECT
SUBSIDfARY, OLYMPUS EQUITY LLC)
AND
AVISTA CORPORAT]ON
FOR AN ORDER AUTHOR]Z]NG PROPOSED
TRANSACTION
CASE NO. AVU-E-17-05
CASE NO. AVU-G-71_09
EXHIB]T NO. 12
MARK T. THIES
FOR AVISTA CORPORAT]ON
(ELECTRIC AND NATURAL GAS)
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SERVICES AND TNDEMNITY AGREEMENT
This Services and Indemnity Agreement, dated as of [o], 2018 (this "Agreement"), is
among GSS Holdings (AGS), Inc. ("HoldCo"), a Delaware corporation, Global Securitization
Services, LLC ("Global"), a Delaware limited liability company, and Avista Corporation, a
Washington corporation (the "Company").
WHEREAS, HoldCo is an affiliate of Global; and
WHEREAS, HoldCo has been requested and has agreed to hold one share of limited
preferred voting stock (the "Share") to be issued by the Company.
NOW, THEREFORE, in consideration of the mutual promises herein contained, and
other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
Section l. HoldCo's Service.
(a) HoldCo agrees to hold the Share as provided subject to the rights and preferences
with respect to the Share as provided in the Amended and Restated Articles of Incorporation of
the Company dated as of [o], as may be amended from time to time (the "Company Articles")
and the Amended and Restated Bylaws of the Company dated as of [o], as may be amended
from time to time (the "Company Bylaws" and, together with the Company Articles, the
"Com pany Governing Documents").
(b) In consideration of HoldCo holding the Share pursuant to Section I (a) of this
Agreement, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the Company, the Company shall pay to Global a fee in the amount
of $5,000.00 per year for each year that the Share continues to be outstanding and held by
HoldCo. Such fee for the first year of this Agreement shall be due and payable by the Company
to Global upon the execution of this Agreement, and such fee for subsequent years shall be due
and payable by the Company to Global no later than each respective anniversary date hereof (the
"Payment Date"). Invoices in respect of such annual fee will be issued by Global by no later
than 30 days prior to the Payment Date during the term of this Agreement and sent to: Avista
Corporation, 14ll East Mission Avenue, Spokane, Washington 99220, Attn: Marian Durkin,
Senior Vice President, General Counsel, Corporate Secretary and Chief Compliance Officer.
(c) HoldCo and Global hereby agree to maintain in strict confidence all information
regarding the Company and its affiliates, including without limitation, information regarding
transactions to which the Company or any of its affiliates is a party, except as may be required
by law to be disclosed.
(d) The Company shall reimburse Global for any reasonable, documented fees and
out-of-pocket expenses incurred pursuant to this Agreement customary for the type of
corporations formed in Delaware such as HoldCo. Such fees and expenses shall be payable by
the Company to Global within thirfy (30) days of demand to the Company; provided that the
Company receives from Global an invoice therefor together with satisfactory evidence of such
fees and expenses.
Exhibit No. 12
Case Nos. AVU-E-1 7-09/AVU-G-1 7-05
M. Thies, Avista
Schedule 1, Page I of 6
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(e) The Company agrees to inform HoldCo and Global, as necessary and in a timely
manner, of any information which is material with respect to any matter as to which HoldCo is
asked to vote in its capacity as the holder of the Share.
Section 2. Indemnification by Company.
(a) In consideration of HoldCo's service as the holder of the Share, recognizing that
the Company benefits from such service, and subject to Sections 2(b),4,5, 6 and 14, the
Company hereby agrees to indemnify and hold HoldCo and Global (collectively, the
"lndemnitees") harmless from and against any and all claims, liabilities, losses, damages,
judgments, settlements, costs and expenses (including, without limitation, court costs and
reasonable attorneys' fees and disbursements) (individually, a "Loss" and collectively, "Losses")
that the Indemnitees may sustain or incur as a result of (i) HoldCo's service as the holder of the
Share or (ii) any act or omission of HoldCo as the holder of the Share, irrespective of the time
when the claim giving rise to such Loss or Losses is asserted or when the amount of such Loss or
Losses is established, excluding however any Losses resulting from the gross negligence or
willful misconduct of any Indemnitee.
(b) Upon the Indemnitees' written verification to the reasonable satisfaction of the
Company of the amount and cause of any Loss or Losses incurred by the Indemnitees or either of
them, the Company shall pay each such Loss covered by this Section directly as and when due to
the Indemnitee entitled thereto.
Section 3. HoldCo and Global Representations. Warranties and Covenants. HoldCo
and Global represent and warrant that HoldCo was incorporated on July 17,2018. HoldCo has
not engaged in any business other than in connection with its ownership of the Share and has no
other assets or liabilities other than this Agreement, the Share and its rights as a shareholder
under the Company Governing Documents. HoldCo and Global covenant that HoldCo will not
engage in any business activities and will not incur any liabilities other than pursuant to this
Agreement. HoldCo and Global covenant that HoldCo will not sell, assign, transfer, pledge,
hypothecate or otherwise convey the Share without the prior written consent of the Company and
in conformity with the Company Governing Documents. For as long as HoldCo owns the Share,
HoldCo and Global each covenant that HoldCo will remain duly qualified and in good standing
to do business in each jurisdiction in which the nature of HoldCo's business orthe ownership of
its assets and properties makes such qualification necessary other than in such jurisdictions
where the failure to be so qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on HoldCo. For as long as
HoldCo owns the Share, HoldCo and Global each covenant that it will not dissolve, liquidate or
wind-up HoldCo.
Section 4. Duty to Defend: Advance of Expenses. If any judicial or administrative
proceeding, or threatened proceeding, including any government investigation, whether civil
criminal or otherwise (individually, an ooAction" and collectively, "Actions"), is asserted,
commenced or brought against the Indemnitees, or any of them, for which the Indemnitees may
be indemnified by the Company pursuant to Section 2(a), the Company shall have the right (in
its sole discretion) to retain and direct counsel to defend such Action, and shall permit the
Indemnitees to monitor the defense thereof. The Indemnitees shall cooperate fully with the
Exhibit No. 12
Case Nos. AVU-E-1 7-09/AVU-G- 1 7-05
M. Thies, Avista
Schedule 1, Page 2 of6
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Company and with such counsel in such defense. The Company shall assume responsibility for
all reasonable fees and disbursements of such counsel.
Section 5. Reimbursement by Indemnitees. The Indemnitees hereby agree that if it is
determined that the Indemnitees, or any of them, are not entitled to indemnification pursuant to
the provisions of Section 2(a) and the Company shall have paid any amounts to or on behalf of
such Indemnitees, then promptly after such determination shall have been made, the Indemnitees,
or those of them not entitled to indemnification as aforesaid, shalljointly and severally repay all
amounts paid bythe Companyto oron behalf of the Indemnitees in connection with all matters
as to which it has been determined that such Indemnitees are not entitled to indemnification.
Section 6. Notice of Claims: Settlements.
(a) If the Indemnitees, or any of them, receives complaints, claims or other notices of
any actions, Losses or other liabilities that may give rise to indemnification under Section 2,the
Indemnitees shall promptly notify the Company in writing of each such complaint, claim or other
notice; but the omission to so notiff the Company shall not relieve the Company from any
liability under this Agreement, except to the extent that the Company is prejudiced as a result of
such failure.
(b) The Company shall not be obligated to indemnifi, the Indemnitees for any
settlements of any action or Losses otherwise covered by the indemnity provided hereunder that
are effected without the Company's prior written consent, which consent shall not be
unreasonably withheld.
Section 7. No Lawsuits. Except to the extent provided in Section 2(a) including, but
not limited to, to the extent of any gross negligence or willful misconduct on the part of an
Indemnitee or in connection with the enforcement of representations, warranties or covenants set
forth in Section 3, the Company agrees that it will not assert, commence or bring any action
against the Indemnitees, or prosecute any lawsuit in state or federal court against the Indemnitees
on account of HoldCo's service as holder of the Share, or as a result of any act or omission by
the Indemnitees covered by the Company's agreement to indemniff under Section 2.
Section 8. Notices. Any notice or other communication under this Agreement shall
be in writing and deemed given upon receipt by a party at its address set forth on the signature
page hereof or at such other address as such party shall hereafter furnish in writing.
Section9. Counterparts:Modification:Headings.
(a) This Agreement may be executed in any number of counterparts, each of which
shall constitute one and the same instrument, and any party may execute this Agreement by
signing any such counterpart. A signature to this Agreement transmitted electronically shall
have the same authority, effect and enforceability as an original signature.
(b) No modification of this Agreement shall be binding unless executed in writing by
the parties hereto or their respective successors and permitted assigns.
Exhibit No. 12
Case Nos. AVU-E-1 7-09/AVU-G-1 7-05
M. Thies, Avista
Schedule 1, Page 3 of6
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(c) Section headings are not part of this Agreement, but are solely for convenience of
reference and shall not affect the meaning or interpretation of any provisions of this Agreement.
Section 10. Successors and Assiens: Sole Benefit. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns. Nothing expressed or referred to herein is intended or
shall be construed to give any person other than the Company or the Indemnitees and the
Indemnitees' heirs, executors, administrators, successors and assigns any legal or equitable rights,
remedies or claims under or with respect to any provisions of this Agreement. Subject to Section
16, no party hereto may assign its obligations under this Agreement without the prior consent of
the other parties hereto.
Section I l. Asreement Not Exclusive. The right to indemnification provided to the
Indemnitees under this Agreement shall be independent of,, and neither subject to nor in
derogation of, any other rights to indemnification or exculpation to which HoldCo or Global may
be entitled, including, without limitation, any such rights that may be asserted under any other
agreement, applicable corporate law, the Company Governing Documents or any other contract
or insurance.
Section 12. Costs of Enforcement. The Company shall pay all reasonable,
documented costs and expenses incurred by the Indemnitees in the enforcement of their rights
under this Agreement, including, without limitation, all reasonable court costs and attorney's
fees.
Section 13. Severability. If any provision of this Agreement, or the application
thereof to any person, place or circumstance, shall be held by a court of competent jurisdiction to
be invalid, unenforceable or void, the remainder of this Agreement and such provisions as
applied to other persons, places and circumstances shall remain in full force and effect.
Section 14. No Violation of Law. The Company shall be relieved of any obligation to
make payment of an amount to an Indemnitee pursuant to the terms of this Agreement if
payment of such amount would constitute a violation by the Company of applicable law or
regulation, but only so long as, and only to the extent that, such payment constitutes such a
violation.
Section 15. Governins Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, without reference to applicable
principles of conflict of laws. The parties hereto irrevocably (a) submit to the non-exclusive
jurisdiction of any New York State court sitting in New York City or the United States District
Court for the Southern District of New York in any action or proceeding arising out of or relating
to this Agreement, (b) waive, to the fullest extent they may effectively do so, any defense based
on inconvenient forum, improper venue or lack of jurisdiction to the maintenance of any such
action or proceeding, and (c) waive all right to trial by jury in any action, proceeding or
counterclaim arising out of this Agreement or the transactions contemplated hereby.
Exhibit No. '12
Case Nos. AVU-E- 1 7-09/AVU-G-1 7-05
M. Thies, Avista
Schedule 1, Page 4 of6
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Section 16. Prior Approval. This Agreement (and any rights or obligations hereunder)
may not be assigned by HoldCo or Global to any pany without the prior approval of any such
assignee by any applicable state utility regulatory authority with jurisdiction over the Company.
Section 17. Termination. Except as otherwise specified, this Agreement shall be in
full force and effect from the date hereof until it is terminated by the parties in accordance
herewith. This Agreement may be terminated by any party upon thirty (30) days prior written
notice of termination to the other parties; provided that no termination of this Agreement shall be
effective until a replacement holder of the Share has been appointed and consented to by the
Company and any applicable state utility regulatory authority with jurisdiction over the
Company. In the event of a termination of this Agreement by Global or HoldCo, Global or
HoldCo shall provide a pro rata refund of the annual fee paid in advance for the year in which
such termination is effected.
Section I 8. Survival. The provisions of this Section l8 and Sections 1(c),2, 4, 5, 6,7,
71, 14, 15 and the last sentence of Section 17 shall survive termination or expiry of this
Agreement.
IS ignature Page Follows]
Exhibit No. '12
Case Nos. AVU-E- 1 7-09/AVU-G-1 7-05
M. Thies, Avista
Schedule '1, Page 5 of 6
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o IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by its duly authorized officers, as of the day and year first above written.
GSS HOLDINGS (AGS), INC.
Name:
Title:
Address
Vice President
68 South Service Road. Suite 120
Melville, NY I 1747
GLOBAL SECURITIZATION SERVICES, LLC
B
Name:
Title:
Address:
Kevin P. Burns
President
I l4 West 47th Street, Suite 2310
New York, NY 10036
AVISTA CORPORATION
Name:
Title:
Address:l4l 1 East Mission Avenue
Spokane, W A 99220
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Exhibit No. 12
Case Nos. AVU-E-'1 7-09/AVU-G- 1 7-05
M. Thies, Avista
Schedule '1, Page 6 of 6