20110111Compliance Filing.pdf

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IC Utilities Commission
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ttention: Jean D. Jewell, Secretary
Case No. A VU-U-08-03
We are submitting the following information in compliance with the Commission's Order No. 30674 under
Case No. A VU-U-08-03 for the sale of$83,700,OOO debt securities.
On December 15, 2010, $66.7 millon of the City of Forsyth, Montana Pollution Control Revenue
Refunding Bonds, (Avista Corporation Colstrip Project) due 2032, which had been held by Avista Corp. since 2008,
were refunded by a new bond issue (Series 201OA). The new bonds were not offered to the public and were
purchased by Avista Corp. due to market conditions. The Company expects that at a later date, subject to market
conditions, these bonds wil be remarketed to unaffiiated investors. So long as A vista Corp. is the holder of these
bonds, the bonds will not be reflected as an asset or a liability on Avista Corp.'s Consolidated Balance Sheet.
On December 15, 2010, $17.0 milion of the City of Forsyth, Montana Pollution Control Revenue
Refunding Bonds, (Avista Corporation Colstrip Project) due 2034, which had been held by Avista Corp. since 2009,
were refunded by a new bond issue (Series 201OB). The new bonds were not offered to the public and were
purchased by Avista Corp. due to market conditions. The Company expects that at a later date, subject to market
conditions, the bonds will be remarketed to unaffiliated investors. So long as Avista Corp. is the holder of these
bonds, the bonds will not be reflected as an asset or a liability on A vista Corp.' s Consolidated Balance Sheet.
See enclosed Loan Agreement and Trust Indentures for more details on the transactions.
Please contact Damien Lysiak at [phone] if you have any questions.
Sincerely,~_C~
Diane C. Thoren
Treasurer
Enclosure
.
C f=' i"
tnii JAN I I AM 9= 4 l
A VISTA CORPORATION
TO
CITIBANK, N.A.
As Successor Trustee under
Mortgage and Deed of Trust,
dated as of June 1, 1939
Fort-eighth Supplemental Indenture
Providing among other thingsfor two series of bonds designated
"First Mortgage Bonds, Collateral Series 2010A"
Due October 1, 2032
and
"First Mortgage Bonds, Collateral Series 20JOB"
Due March 1, 2034
Dated as of December 1,2010
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.
FORTY-EIGHTH SUPPLEMENTAL ~ENTURE
TilS INDENTUR, dated as of the 1st day of December, 2010, between
AVISTA CORPORATION (formerly known as The Washington Water Power
Company), a corpration of the State of Washington, whose post offce address is 1411
East Mission Avenue, Spokane, Washigton 99202 '(the "Company"), and CITIBANK,
N.A., formerly First Nationa City Ban (successor by merger to First National City Trust
Company, formerly City Ban Farers Tru Company), a national baning association
incorporated and existing under the laws of the United States of Amenca, whose post
office address is 388 Greenwich Street, 14th Floor, New York, 10013 New York (the
"Truee"), as Trustee under the Mortgage and Deed of Trut, dated as of June 1, 1939
(the "Onginal 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 "Fort-eighth Supplemental Indentue") being supplemental to
the Onginal Mortgage, as heretofore supplemented and amended.
WHREAS pursuat to a wntten request of the Company made in
accordance with Section 103 of the Onginal Mortgage, Francis M. Pitt (then Individual
Trustee under the Mortgage, as supplemented) ceased to be a trstee 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 Onginal Mortgage the Company covenanted that it
would execute and deliver such furher instrents and do such fuher acts as might be
necessary or proper to cary out more effectualy the purses of the Onginal Mortgage
and to make subject to the lien of the Onginal Mortgage any propert thereafer acquired
intended to be subject to the lien thereof; and
WHEREAS the Company has heretofore executed and delivered, in
addition to the Onginal Mortgage, the indentues supplemental thereto, and has issued the
senes of Bonds, set forth in Exhbit A hereto (the Onginal Mortgage, as supplemented
and amended by the First though Fort-seventh Supplemental Indentues, being herein
sometimes called the "Mortgage"); and
WHEREAS the Onginal Mortgage and the First through Forty-sixth
Supplementa Indentures have been appropriately fied or recorded in varous offcial
records in the States of Washington, Idaho, Montaa and Oregon, as set fort in the First
through Fort~seventh Supplemental Indentues and the Instrent of Furter Assurance,
dated December i 5, 2001, hereinafter referred to; and
WHEREAS the Fort-seventh Supplementa Indenture, dated as of
November 1,2009, has been appropnately fied or recorded in the States of Washington,
Idaho, Montaa and Oregon, as set forth in Exhibit B hereto; and
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NYJ 3067279.6 779483 672870
WHEREAS for the purose of confirming or pedecting the lien of the
Mortgage on certain of its properties, the Company has heretofore executed and delivered
a Short Form Mortgage and Secunty Agreement, in multiple counterpars dated as of
varous dates in 1992, and such instrent has been appropnately filed or recorded in the
varous official records in the States of Montana and Oregon; and
WHREAS for the purse of confirming or pedecting 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 i 5, 2001, and such instent
has been appropnately filed or recorded in the varous offcial records in the States of
Washington, Idao, Montana and Oregon; and
WHEREAS in addition to the propert descnbed in the Mortgage the
Company has acquired certin other propert, nghts and interests in propert; and
WHREAS Section 120 of the Onginal 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 indentues supplemental to the Onginal
Mortgage for vanous puroses set fort 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 matenal respect or to establish the form or terms of bonds of any senes as
contemplated by Article II; and
WHEREAS Section 8 of the Onginal Mortgage, as heretofore amended,
provides that the form of each senes of bonds (other than the Firt Senes) issued
thereunder and of the coupons to be attched to coupon bonds of such senes shall be
established by Resolution of the Board of Directors of the Company or by Treasrer's
Certificate, or shall be set forth in an indenture supplemental to the Onginal Mortgage;
that the form of such senes, as so established, shall specify the descnptive title of the
bonds and various other terms thereof; and that such senes 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 refernng to the terms and
conditions upon which such bonds are to be issued and/or secured under the Mortgage;
and
and
WHEREAS the Company now desires to create two new senes of bonds;
WHEREAS the execution and delivery by the Company of this Fort-
eighth Supplemental Indentue, and the terms of the Bonds of the Forty-eighth and Forty-
ninth Senes, hereinafer referred to, have been duly authonzed by the Board of Directors
of the Company by appropnate Resolutions of said Board of Directors, and all things
necessar to make this Forty-eighth Supplemental Indenture a valid, binding and legal
instrent have been performed;
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NY3 3067279.6779483672870
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NOW, THREFORE, THS INENTURE WITNSSETH: That the
Company, in consideration of the premises and of other good and valuable consideration,
the receipt and suffciency whereof are hereby acknowledged, hereby confrms the estate,
title and nghts of the Trustee (including, without limitation, the lien of the Mortgage on
the . propert of the Company subjected thereto, whether now owned or hereafer
acquired) held as secunty for the payment of both the pnncipal 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 confrms the
grant, bargain, sale, release, conveyance, assignent, transfer, mortgage, pledge, setting
over and confirmation unto the Trutee, contained in the Mortgage, of all the following
descnbed properties of the Company, whether now owned or hereafer acquired, namely:
All of the propert, real, personal and mixed, of every character
and wheresoever situated (except any hereinafer or in the Mortgage
expressly excepted) whi ch the Compan y now owns or, subje ct to the
provisions of Section 87 of the Onginal Mortgage, may hereafter acquire
pnor to the satisfaction and dischage of the Mortgage, as fully and
completely as if herein or in the Mortgage specifically descnbed, and
including (without in anywise limitig or impainng 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 leaehold and other interests in real estate; all
nghts to the use or appropnation of water, flowage nghts, water storage
nghts, flooding nghts, and other nghts in respect of or relating to water;
all plants for the generation of electncity, 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
an other works and stctures and the equipment thereof and all
improvements, extensions and additions thereto; all generators, machinery,
engines, turbines, boilers, dynamos, transformers, motors, electnc
machines, switchboards, regulators, meters, electncal and mechanical
appliances, conduits, cables, pipes and mains; all lines and systems for the
transmission and distbution of electnc current, gas, steam heat or water
for any purose; all towers, mai, pipes, poles, pole lines, conduits,
cables, wires, switch racks, insulators, compressors, pumps, fittings,
valves and conne ctions; all motor vehicles and automobiles; all too Is,
implements, apparatus, fuiture, stores, supplies and equipment; all
franchises (except the Company's frchise to be a corpration),.licenses,
permits, nghts, powers and pnvileges; and (except as hereinafter or in the
Mortgage expressly excepted) all the right, title and interest of the
Company in and to all other propert of any kind or natue.
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The propert so conveyed or intended to be so conveyed under the
Mortgage shall include, but shall not be limited to, the propert set fort in
Exhibit C hereto, the particular descnption of which is intended only to
aid in the identification thereof and shall not be constred as limiting the
force, effect and scope of the foregoing.
TOGETHER WIll all and singular the tenements, hereditaents and
appurenances belonging or in anywise appertaining to the aforesaid propert or any par
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,
earings, income, product and profits thereof, and all the estate, nght, 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 par and parcel
thereof.
TH COMPANY HEREBY CONFIRMS that, subject to the provisions of
Section 87 of the Original Mortgage, all the propert, nghts, and frchises acquired by
the Company after the date thereof (except any hereinbefore or hereinafer or in the
Mortgage expressly excepted) are and shall be as fully embraced within the lien of the
Mortgage as if such propert, nghts and frchises had been owned by the Company at
the date of the Original Mortgage and had been specifically described therein.
PROVIDED llAT 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:
(1) cash, shares of stock and obligations (including bonds, notes and other securties) 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 usua course of business or for consumption in the operation of any
properties of the Company; (3) bils, notes and accounts receivable, and all contracts,
leases and operating agreements not specifically pledged under the Mortgage or
covenanted so to be; (4) electnc energy and other matenals or products generated,
manufactured, produced or purchased by the Company for sale, distnbution or use in the
ordinar course of its business; and (5) any propert heretofore released pursuant to any
provisions of the Mortgage and not heretofore disposed of by the Company; provided,
however, that the propert and nghts 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 Truee or a receiver or trstee shall enter
upon and take possession of the Mortgaged and Pledged Propery in the maner provided
in Aricle XII of the Original Mortgage by reason of the occurrence of a Completed
Default as defined in said Aricle XII.
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TO HA VE AND TO HOLD all such properties. real, personal and mixed,
grated, bargained. sold, released, conveyed, assigned, tranferred, mortgaged, pledged,
set over or confirmed by the Compay in the Mortgage as aforesaid, or intended so to be,
unto the Trutee, and its successors, heirs and assign forever.
IN TRUST NEVERTHELESS, for the same puroses and upon the same
terms, trsts and conditions and subject to and with the same provisos and covenants as
set forth in the Mortgage, this Fort-eighth Supplemental Indentue being supplemental
to the Mortgage.
AND IT is HEREBY FURTHR CONFIRMD by the Company that all
the terms, conditions, provisos, covenants and provisions contained in the Mortgage shall
affect and apply to the propert in the Mortgage descnbed and conveyed, and to the
estates, rights, obligations and duties of the Company and the Trustee and the
beneficiares of the trst with respect to said propert, and to the Trustee and its
successors in the trt, in the same maner and with the same effect as if the said propert
had been owned by the Company at the time of the execution of the Onginal Mortgage,
and had been specifically and at lengt descnbed in an conveyed to said Trustee by the
Original Mortgage as a par of the propert therein stated to be conveyed.
The Company fuer covenants and agrees to and with the Trustee and its
successor or successors in such trt under the Mortgage, as follows:
ARTICLE I
Fort-eighth Series of Bonds
SECTION i.
(I) There shall be a senes of bonds designated "Collateral Senes
201OA" (herein sometimes referred to as the "Forty-eighth Senes"), each of which shall
also bear the descriptive title Firt Mortgage Bond. and the form thereof, is set forth on
Exhbit D hereto. Bonds of the Fort-eighth Senes shall be issued as fully registered
bonds in denominations of One Thousand Dollar 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 i 0 of the Mortgage provided.
(II) The Bonds of the Fort-eighth Senes shall mature, bear interest, be
payable, be redeemable and be otherwse as set forth below:
(a) the Bonds of the Fort-eighth Series shall be initially authenticated
and delivered under the Mortgage in the aggregate pnncipal amount of
$66,700,000, which pnncipal amount is equal to the outstanding aggregate
pnncipal amount of the 201 OA Revenue Bonds, and shall matur on October i,
2032, which is the stated matunty date of the 20 i OA Revenue Bonds;
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NY3 3067279.6 779483 672870
(b) the Bonds of the Fort-eighth Series shall bear interest at the same
rate or rates as shall be in effect from time to time in respect of the 2010A
Revenue Bonds; and interest on such bonds shall be payable at the same times as
interest is payable on the 20 i OA Revenue Bonds;
~ ~~~ ~~ ~~oo ~ B~~ ~~~~Series payable at Maturity shall be payable upon presentation thereof at the offce
or agency of the Company in the Borough of Manatt, 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 Fort-eighth Senes (other than
interest payable at Maturity) shall be payable directly to the registered owner
thereof;
(d) the Bonds of the Forty-eighth Series shall not be redeemable, in
whole or in par, at the option of the Company; and
(e) (i) the Bonds of the Forty-eighth Senes are to be issued and
delivered to the 2010A Revenue Bond Trustee in order to secure the obligations
of the Company under Section 4.01 of the 2010A Loan Agreement;
(ii) in the event that any 2010A Revenue Bonds are to beredeemed pursuant to Section 4.03 of the 2010A Revenue Bond Indentu
following a Determination of Taxabilty (as defined in the 2010A Revenue Bond
Indentue), Bonds of the Fort-eighth Senes, in a pnncipal amount equal to the
pnncipal amount of2010A Revenue Bonds to be redeemed, shall be redeemed on
the date fixed for redemption of the 2010A Revenue Bonds, at the pnncipal
amount thereof plus accrued interest to the redemption date;
(iii) in the event that all 201 OA Revenue Bonds have becomeimmediately due and payable pursuant to Section 9.02(a) of the 2010A Revenue
Bond Indenture followig the occurence of an Event of Default (as defined in the2010A Revenue Bond Indentue), the Bonds of the Fort-eighth Senes (unless
already due and payable) shall thereupon be redeemed at the pnncipal amount
thereof plus accrued interest to the redemption date (the obligation to effect such
redemption being rescinded upon the rescission of such acceleration);
(iv) the obligation of the Company to make any payment of the
pnncipal of or interest on the Bonds of the Fort-eighth Senes shall be reduced by
the amount of any moneys held by the 2010A Revenue Bond Trutee under the
Revenue Bond Indentur and available to make the corresponding payment of the
pnncipal of or interest on the 20 lOA Revenue Bonds;
(v) the Truee shall be entitled to presume that the obligation
of the Company to pay the pnncipal of and interest on the Bonds of the Fort-
eighth Senes as the sae shall become due and payable shall have been fully
NY3 3067279.6 779483 672870 7
satisfied and discharged uness and until it shall have received a wntten notice
from the 2010A Revenue Bond Trustee, signed by an authonzed offcer thereof,
stating that the pnncipal of and/or interest on the Bonds of the Fort-eighth Senes
has become due and payable and has not ben fuly paid, and spcifying the
amount of fuds required to make such payment; and
(vi) Anytng in ths Supplementa Indentue or in the Bonds of
the Fort-eighth Senes to the contrar notwthstading, if, at the time of the
Matuty of the Bonds of the Fort-eighth Senes, the stated aggregate principal
amount of such Bonds then Outstading shall exceed the aggregate principal
amount of 2010A Revenue Bonds then outstading, the aggregate pnncipal
amount of such Bonds shall be deemed to have been reduced by the amount of
such excess.
(II) The Bonds of the Fort-eighth Senes shall be non-trsferrble
except to a successor trstee under the 201 OA Revenue Bond Indentue. No servce
charge shall be made for the registration of transfer or exchange of Bonds of the Fort-
eighth Senes.
In the event of an application by the 2010A Revenue Bond Trustee for a
substituted Bond of the Fort..eighth Series pursuat to Section 16 of the Onginal
Mortgage, the 2010A Revenue Bond Trustee shall not be required to provide any
indemnity or pay any expenses or charges as contemplated in said Section 16.
(I) For all purses of ths Arcle I, except as otherwse expressly
provided or unless the context otherse requires, the terms defined below shall have the
meanings specified:
"City" mean the City of Forsyth, Montana, a political subdivision of the
State of Montana.
"2010A Loan Agreement" means the Loan Agreement, dated as of
December 1, 2010, between the City and the Company, relating to the 2010A
Revenue Bonds.
"2010A Revenue Bonds" mean the Pollution Control Revenue
Refuding Bonds (Avista Corporation Colstnp Project) Senes 2010A issued by
the City.
''2010A Revenue Bond Indenture" means the Trust Indenture, dated as
of December 1,2010, between the City and The Ban of New York Mellon Trust
Company, N.A., trstee, relatig to the 2010A Revenue Bonds.
"2010A Revenue Bond Trustee" means the trustee under the 2010A
Revenue Bond Indentue.
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(V) The Bonds of the Forty-eighth Series shall have such other terms
as are set fort in the form of bond attached hereto as Exhbit D.
Copies of the 2010A Revenue Bond Indenture and the 2010A Loan
Agreement are on fie at the offce of the 2010A Revenue Bond Trustee at 601 Union
Street, Suite 520, Seattle, WA 98101-2321 and at the offce of the Company at 1411 East
Mission Avenue, Spokane, W A 99202.
ARTICLE II
Fort-ninth Series of Bonds
SECTION 1.
(I) There shall be a senes of bonds designated "Collateral Senes
201OB" (herein sometimes referred to as the "Fort-ninth Senes"), each of which shall
also bear the descriptive title First Mortgage Bond, and the form thereof, is set fort on
Exhibit D hereto. Bonds of the Fort-nith Series shall be issued as fully registered
bonds in denominations of One Thousad Dollars and, at the option of the Company, any
amount in excess thereof (the exercise of such option to be evidenced by the execution
and delivery thereof) and shall be dated as in Section 10 of the Mortgage provided.
(II) The Bonds of the Forty-ninth Senes shall matue, bear interest, be
payable, be redeemable and be otherwse as set forth below:
(a) the Bonds of the Forty-ninth Senes shall be initially authenticated
and delivered under the Mortgage in the aggregate pnncipal amount of
$17,000,000, which principal amount is equal to the outstading aggregate
principal amount of the 201 OB Revenue Bonds, and shall matue on March 1,
2034, which is the stated matunty date of the 2010B Revenue Bonds;
(b) the Bonds of the Forty-ninth Senes shal bear interest at the same
rate or rates as shall be in effect from time to time in respect of the 2010B
Revenue Bonds; and interest on such bonds shall be payable at the same times as
interest is payable on the 2010B Revenue Bonds;
(c) the pnncipal of and interest on each Bond of th Fort-ninth Senes
payable at Matunty shall be payable upon presentation thereof at the office or
agency of the Company in the Borough of Manatt, The City of New York, in
such coin or curency as at the time of payment is legal tender for public and
pnvate debts. The interest on each Bond of the Fort-ninth Senes (other than
interest payable at Maturity) shall be payable directly to the registered owner
thereof;
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(d) the Bonds of the Fort-ninth Senes shall not be redeemable, in
whole or in par, at the option of the Company; and
(e) (i) the Bonds of the Fort-ninth Senes are to be issued and
delivered to the 201 OB Revenue Bond Trustee in order to secure the obligations
of the Company under Section 4.01 of the 2010B Loan Agreement;
(i) in the event that any 2010B Revenue Bonds are to be
redeemed pursuant to Section 4.03 of the 2010B Revenue Bond Indentue
following a Determination of Taxability (as defined in the 2010B Revenue Bond
Indenture), Bonds of the Fort-ninth Senes, in a pnncipal amount equa to the
principal amount of 201 OB Revenue Bonds to be redeemed, shall be redeemed on
the date fixed for redemption of the 201 OB Revenue Bonds, at the pnncipal
amount thereof plus accrued interest to the redemption date;
(ii) in the event that all 2010B Revenue Bonds have become
immediately due and payable pursuant to Section 9.02(a) of the 2010B Revenue
Bond Indentue following the occurence of an Event of Default (as defined in the
2010B Revenue Bond Indentu), the Bonds of the Fort-ninth Series (unless
already due and payable) shall thereupon be redeemed at the pnncipal amount
thereof plus accrued interest to the redemption date (the obligation to effect such
redemption being rescinded upon the rescission of such acceleration);
(ii) the obligation of the Company to make any payment of the
pnncipal of or interest on the Bonds of the Fort-ninth Senes shall be reduced by
the amount of any moneys held by the 2010B Revenue Bond Trustee under the
Revenue Bond Indentue and available to make the corresponding payment of the
pnncipal of or interest on the 201 OB Revenue Bonds;
(iv) the Trustee shall be entitled to presume that the obligation
of the Company to pay the pnncipal of and interest on the Bonds of the Fort-
ninth Series as the same shall become due and payable shall have been fully
satisfied and discharged unless and until it shal have received a wntten notice
from the 2010B Revenue Bond Trustee, signed by an authonzed offcer thereof,
stating that the pnncipal of and/or interest on the Bonds of the Fort-ninth Senes
has become due and payable and has not been fully paid, and specifying the
amount of fuds required to make such payment; and
(v) Anything in this Supplemental Indenture or in the Bonds of
the Fort-ninth Senes to the contr notwthstanding, if, at the time of the
Matuty of the Bonds of the Fort-ninth Senes, the stated aggrgate principal
amount of such Bonds then Outstading shall exceed the aggregate principal
amount of 201 OB Revenue Bonds then outstanding, the aggregate pnncipal
amount of such Bonds shall be deemed to have been reduced by the amount of
such excess.
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NY3 3067279.6779483 67270
(II) The Bonds of the Fort-ninth Senes shall be non~transferrble
except to a successor trstee under the 2010B Revenue Bond Indentue. No service
charge shall be made for the registtion of transfer or exchange of Bonds of the Fort~ninth Senes. .
In the event of an application by the 2010B Revenue Bond Trustee for a
substituted Bond of the Forty-ninth Senes pursuat to Section 16 of the Onginal
Mortgage, the 2010B Revenue Bond Trustee shall not be required to provide any
indemnity or pay any expenses or charges as contemplated in said Section 16.
(IV) For all puroses of this Aricle II, except as otherwse expressly
provided or unless the context otherwse requires, the terms defined below shall have the
meanings specified:
"City" means the City of Forsyth, Montana, a political subdivision of the
State of Montana.
"2010B Loan Agreement" means the Loan Agreement, dated as of
December i, 2010, between the City and the Company, relating to the 2010B
Revenue Bonds.
"2010B Revenue Bonds" means the Pollution Control Revenue
Refunding Bonds (Avista Corpration Colstnp Project) Senes 2010B issued by
the City.
"2010B Revenuè Bond Indenture" means the Trust Indentue, dated as
of December 1,2010, between the City and The Ban of New York Mellon Trust
Company, N.A., trustee, relating to the 2010B Revenue Bonds.
"2010B Revenue Bond Trustee" mean the trustee under the 2010B
Revenue Bond Indentue.
(V) The Bonds of the Fort-ninth Senes shall have such other terms as
are set fort in the form of bond atthed hereto as Exhbit D.
Copies of the 2010B Revenue Bond Indentue and the 2010B Loan
Agreement are on file at the offce of the 2010B Revenue Bond Trustee at
601 Union Stret, Suite 520, Seattle, WA 98101-2321 and at the offce of
the Company at 1411 East Mission Avenue, Spokane, W A 99202.
IINY3 3067279.6 779483 6n870
ARTICLE III
Outstanding Bonds
Upon the delivery of this Fort-eighth Supplemental Indentur, Bonds of
the Fort-eighth Senes in the aggregate principal amount of $66,700,000 and Bonds of
the Fort-ninth Series in the aggregate pnncipal amount of $17,000,000 are to be issued
and wil be Outstading, in addition to $1,428,000,000 aggregate pnncipal amount of
bonds of pnor senes Outdig at the date of delivery of this Fort-eighth
Supplemental Indentue (which amount excludes $66,700,000 in aggregate pnncipal
amount of First Mortgage Bonds, Collatera Senes 2005B, to be retired simultaneously
with the issuance and delivery of the bonds of the Fort-eighth and Fort-ninth Senes).
ARTICLE iv
Miscellaneous Provisions
SECTION 1. The terms defined in the Onginal Mortgage shall, for all
puroses of this Fort-eighth Supplementa Indentue, have the meanngs specified in
the Original Mortgage.
SECTION 2. The Trustee hereby confrms its acceptance of the trs
in the Original Mortgage declared, provided, created or supplemented and agrees to
perform the same upon the terms and conditions in the Onginal Mortgage set fort,
including the following:
The Trustee shall not be responsible in any maner whatsoever for or in
respect of the validity or sufciency of this Fort-eighth Supplementa Indentue or for or
in respect of the recitals contaned herein, all of which recitas are made by the Company
solely. Each and every term and condition contaied in Aricle XVI of the Onginal
Mortgage, shal apply to and form pa of this Fort-eighth Supplementa Indenture with
the same force and effect as if the same were herein set fort in full, with such omissions,
varations and insertions, if any, as may be appropnate to make the same conform to the
provisions of this Forty-eighth Supplemental Indenture.
SECTION 3. Whenever in ths Fort-eighth Supplemental Indentue
either of the paries hereto is named or referred to, ths shall, subject to the provisions
of Articles XV and XVI of the Onginal Mortgage be deemed to include the successors
and assigns of such pary, and all the covenants and agreements in this Fort-eighth
Supplemental Indenture contained by or on behalf of the Company, or by or on behalf
of the Trutee, or either of them, shall, subject as aforesaid, bind and inure to the
respective benefits of the respective successors and assigns of such paries, whether so
expressed or not.
12
NY3 3067279.6 779483 672870
SECTION 4. Nothing in this Fort-eighth Supplemental Indenture,
expressed or implied, is intended, or shall be constred, to confer upon, or to give to,
any person, firm or corporation, other than the paries hereto and the holders of the
bonds and coupons Outstanding under the Mortgage, any nght, remedy or claim under
or by reason of this Fort-eighth Supplemental Indentue or any covenant, condition,
stipulation, promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this Forty-eighth Supplemental Indentue
contained by or on behalf of the Company shall be for the sole and exclusive benefit of
the paries hereto, and of the holders of the bonds and of the coupons Outstading
under the Mortgage.
SECTION 5. Ths Fort-eighth Supplemental Indentue shall be
executed in several counterpar, 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 severa Aricles of this Fort-eighth
Supplementa Indentue shall not be deemed to be any par thereof.
13
NY3 3067279.6 779483 672870
IN WITNSS WHEREOF, on the 7th day of December, 2010, A VISTA
CORPORATION has caused its corporate name to be hereunto affed, and this
instrent to be signed and sealed by its President or one of its Vice Presidents, and its
corporate seal to be attested by its Corprate Secreta or one of its Assistat Corporate
Secretares for and in its behalf, all in The City of Spokane, Washington, as of the day
and year first above wntten; and on the 7th day of December, 2010, CITIBANK, N.A.,
has caused its corporate name to be hereunto affed, and this instrment to be signed and
sealed by its President or one of its Vice Presidents or one of its Senior Trust Offcers or
one of its Trust Offcers and its corporate seal to be attested by one of its Vice Presidents
or one of its Trust Offcers, all in The City of New York, New York, as of the day and
year fist above wntten.
A VISTA CORPORATION
BY:~fl~
Na : Jason R. Thackston
Title: Vice President
Attest:
5ug~ y. f~ /Y~
Name: Susan Y. Fleming /
Title: Assistant Corporate Secreta
Executed, sealed and delivered
by A VISTA CORPORATION
in the presence of:ciQ~
Name: Diane C. Thoren
h: L ~~NamÇ ian Krasselt
14
CITlBANK, N.A., AS TRUSTEE
..--
&
Attest:
=" .~--#;.~
,/:t6uis Piscitelli
6--Vice President.Y
=
ÇITIBA/KÕ
Executed, sealed and delivered
by CITlBANK, N.A.,
as trustee. in the presence of:
==
~
Name: Cirino Emanuele
l 5
STATE OF WASHIGTON )
) ss.:
COUNTY OF SPOKANE )
On the 7th day of December, 2010, before me personally appeared Jason
R. Thackston, to me known to be a Vice President of A VISTA CORPORATION, one of
the corporations that executed the within and foregoing instrent, and acknowledged
said instrent to be the free and volunta act and deed of said Corporation for the uses
and puroses therein mentioned and on oath stated that he was authonzed to execute said
instrment and that the seal affixed is the corporate seal of said Corporation.
On the 7th day of December, 2010, before me, a Notary Public in and for
the State and County aforesaid, personally appeared Jason R. Thackston, known to me to
be a Vice President of AVISTA CORPORATION, one of the corporations that executed
the within and foregoing instrent and acknowledged to me that such Corporation
executed the same.
IN WITNSS WHREOF, I have hereunto set my hand and affixed my
offcial seal the day'and year fit above wntten.
\\"tllI"i,~ ,,\ ~~ ..c:.c!..FiA/",,,
~ ~ ....S\ON i...~ ~~ ~ -...~s -i,6/.... -( ~.. ..- :,,~ '?~..'...u ¡p.'
: i NOTARY i =¥: . . ..~ '" \ PUBUC : :: ::c; ~.. .. 0'"-: "" ... ... r. $~, /".. ...!-29-20':'.. ~,0 ~
, "0 ......... ,i.\~ """ ¡: WA.S~\\','ilii"..,,\\\
tfU t+ Co~
Nota Public
16
STATE OF NEW YORK )
) ss.:COUNTY OF NEW YORK )
On the ih day of December, 2010, before me personally appeared Wafaa
Orfy, to me known to be a Vice President of CITlBANK, 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 he was authorized to execute said instrument
and that the seal affixed is the corporate seal of said Corporation.
On the ih day of December, 20 1 0, before me, a Notary Public in and for
the State and County aforesaid, personally appeared Wafaa Orf, known to me to be an
Vice President of CITlBANK, 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 myoffcial seal the day and year firs aboïì L 5t
.7:7 . ..~
Notary Public
Notary Stamp
NOREEN IRIS SANTOS
Notary Public, State of New York
Registration #OISA6228750
Qualified in Nassau County
Commission Expires Sept. 27, 20 i 4
17
EXHIBIT A
MORTGAGE, SUPPLEMENTAL INDENTURES
AND SERIS OF BONDS
MORTGAGE OR SERIES PRINCIPAL PRINCIPAL
SUPPLEMENTAL AMOUNT AMOUN
INDENTURE DATED AS OF NO.DESIGNATION ISSUED OUTSTANDING
Original June I, 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 I, 1955 None
Fourth March 15, 1957 None
Fifth July I, 1957 4 4-7/8% Series due 1987 30,000,000 None
Sixth Januar 1, 1958 5 4- )/8% Series due 1988 20,000,000 None
Seventh August l, 1958 6 4-3/8% Series due 1988 15,000,000 None
Eighth Januar i, 1959 7 4-3/4% Series due 1989 15,000,000 None
Ninth January I, 1960 8 5-3/8% Series due 1990 10,000,000 None
Tenth April I, 1964 9 4-5/8% Series due 1994 30,000,000 None
Eleventh March 1, I 965 10 4-5/8% Series due 1995 10,000,000 None
Twelfth May I, 1966 None
Thirteenth August I, 1966 11 6% Series due 1996 20,000,000 None
Fourteenth April I, 1970 12 9-1/4% Series due 2000 20,000,000 None
Fifteenth May I, 1973 13 7-7/8% Series due 2003 20,000,000 None
Sixteenth Februar 1, 1975 14 9-3/8% Series due 2005 25,00,000 None
Seventeenth November I, 1976 15 8-3/4% Series due 2006 30,000,000 None
Eighteenth June 1, 1980 None
A-I
NY3 3067279.6 779483 672870
MORTGAGE OR SERIES PRICIPAL PRINCIPAL
SUPPLEMENTAL AMOUNT AMOUNT
INDENTURE DATED AS OF NO.DESIGNA nON ISSUED OUTSANDING
Nineteenth Januar I, 198 I 16 14- I /8% Series due 40,000,000 None
1991
Twentieth August 1, 1982 17 15-3/4% Series due 60,000,000 None
1990-1992
Twenty-First September I, 1983 18 13-1/2% Series due 60,000,000 None
20B
Twenty-Second March 1, 1984 19 B-l/4% Series due 60,000,000 None
1994
Twenty-Third December I, 1986 20 9-l/4% Series due 2016 80,000,000 None
Twenty-Fourt Januar 1, 1988 21 10-3/8% Series due 50,000,000 None
20LS
Twenty-Fift October 1, 1989 22 7-l/8% Series due 20B 66,700,000 None
7-215% Series due 2016
23 17,000,000 None
Twenty-Sixth April 1, 1993 24 Secured Medium-Term 250,00,00 43,000,000
Notes, Series A
($250,000,000
authorized)
Twenty-Seventh Januar I, 1994 25 Secured Medium- Tenn 161,000,000 None
Notes, Series B
($250,000,000
authorized)
Twenty-Eighth September I, 2001 26 Collateral Series due 220,000,000 None
2002
Twenty- N ¡nth December 1,2001 27 1.75% Series due 2007 150,000,000 None
Thirtieth May 1,2002 28 Collateral Series due 225,000,000 None
2003
Thirt-first May 1,2003 29 Collateral Series due 245,00,000 None
2004
Thirt-second September I, 2003 30 6.125% Series due 45,000,000 45,00,000
2013
A-2
NY3 3067279.6 77983672870
MORTGAGE OR SERIES PRINCIPAL PRINCIPAL
SUPPLEMENTAL AMOUNT AMOUN
INDENTURE DATED AS OF NO.DESIGNA nON ISSUED OUTSTANDING
Thirt-third May 1,2004 31 Collateral Series due 350,000,000 None
2005
Thirt-fourth November I, 2004 32 5.45% Series due 2019 90,000,000 90,000,000
Thirt-fifth December 1,2004 33 Collateral Series 88,850,000 25,000,000
2004A
Thirt-sixth December I, 200 34 Collateral Series 2004B 66,700,000 None
35 Collateral Series 2004C 17,000,000 None
Thirt-seventh December 1,2004 36 Collateral Series 350,000,000 None
20040
Thirt-eighth May 1,2005 37 Collateral Series 2005B 66,700,000 66,700,ooll)
38 Collateral Series 2005C 17,000,000 None
Thirt-ninth November I, 2005 39 6.25% Series due 2035 100,000,000 100,000,000
50,00,000 50,00,000
Fortieth April I, 2006 40 Collateral Series due 320,00,000 320,000,000
2011
Fort-first December l, 2006 41 5.70% Series due 2037 150,000,00 150,000,000
Fort-second April i, 2008 42 5.95% Series due 2018 250,000,000 250,000,000
Fort-third November 1,2008 43 Collateral Series 200,000,000 None
2008A
Fort-fourt December 1,2008 44 7.25% Series due 2013 30,000,000 30,000,000
Fort-fift December i, 2008 45 Collateral Series 2008B 17,000,000 None
Fort-sixth September 1, 2009 46 5.125% Series due 250,000,000 250,000,000
2022
(I) To be retired in connection with the issuance and delivery of the First Mortgage Bonds, Collateral Series
20 lOA.
A-3
NY3 3067279.6779483 672870
MORTGAGE OR SERIES PRINCIPAL PRINCIPAL
SUPPLEMENTAL AMOUNT AMOUN
INDENTRE DATED AS OF NO.DESIGNATION ISSUED OUTTANDING
Forty-seventh September 1, 2009 47 Collateral Series 75,000,000 75,000,000
2009A
A-4
NY3 3067279.6 779483 672870
EXHIBITB
FILING AND RECORDING OF
FORTY -SEVENTH SUPPLEMENTAL INDENTURE
FILING IN STATE OFFICES
Financing Statement
State Offce of Date Document Number
Washington Secretary of State 1/19/10 2010-020-6503-9
Idaho Secretary of State 1/19/10 B2010-10741 05-5
Montana Secretary of State 1/19110 577254030
Oregon Secretary of State 1/19/10 84309
RECORDING IN COUNTY OFFICES
Real Estate Mortgage Records
Financing
Statement
Document Document
County Ofce of Date Number Book Page Number
Washington
Adams Auditor 1/19110 294186 N/A N/A N/A
Asotin Auditor 1119110 317109 N/A N/A N/A
Benton Auditor 1/19/10 2010-001413 N/A N/A N/A
Douglas Auditor 1/19/10 3140787 N/A N/A N/A
Ferry Auditor 1119/10 276008 N/A N/A N/A
Franklin Auditor 1119110 1745059 N/A N/A N/A
Garteld Auditor 1/19/10 20100040 N/A N/A N/A
Grant Auditor 1/19/10 1266000 N/A N/A N/A
Klickitat Auditor 1119/10 1086736 N/A N/A N/A
Lewis Auditor 1/19/10 3339583 N/A N/A N/A
Lincoln Auditor 1/19110 2010-0454285 100 4198 N/A
Pend Oreile Auditor 1120/10 2010-0304211 N/A N/A N/A
Skamania Auditor 1125/10 2010174763 N/A N/A N/A
Spokane Auditor 1129/10 5871475 N/A N/A N/A
Stevens Auditor 1119/10 2010 0000420 N/A N/A N/A
Thurston Auditor 2/1/10 4134285 N/A N/A N/A
Whitman Auditor 1/19110 697257 N/A NlA N/A
Idaho
B-1
NY3 3067279.6 779483 672870
RECORDING IN COUNTY OFFICES
Real Estate Mortgage Records
Financing
Statement
Document DocumentCountyOffce of Date Number Book Page Number
Benewah Recorder 1/19/10 256186 N/A N/A N/A
Bonner Recorder 1/19/10 786462 N/A N/A NlA
Boundary Recorder 1/19/10 245318 N/A N/A NlA
Clearwater Recorder 1/19/10 213420 N/A N/A N/A
Idaho Recorder 1/19/10 470594 N/A N/A N/A
Kootenai Recorder 1/19110 2249762000 N/A N/A N/A
latah Recorder 1/20110 534934 N/A N/A N/A
Idaho (cont.)-----
lewis Recorder 1119/10 138074 N/A NlA N/A
Nez Perce Recorder 1/19/10 777152 N/A N/A N/A
Shoshone Recorder 1/19/10 455806 N/A N/A N/A
Montana
Big Horn Clerk & Recorder 1119/10 342311 109 1 N/A
Broadwater Clerk & Recorder 1/19/10 162665 128 207 N/A
Golden Valley Clerk & Recorder 1/19/10 80204 M 14691 N/A
Meagher Clerk & Recorder 1/19110 137369 N/A N/A N/A
Mineral Clerk & Recrder 1/19110 106046 N/A N/A N/A
Rosebud Clerk & Recorder 1/20/10 106346 128 195 N/A
Sanders Clerk & Recorder 1/19/10 68270 N/A N/A N/A
Stilwater Clerk & Recorder 1/19/10 342952 N/A N/A N/A
Treasure Clerk & Recorder 1119/10 81040 19 373 N/A
Wheatland Clerk & Recorder 1/19/10 106122 M 21658 NlA
Yellowstone Clerk & Recorder 1/19110 3537916 N/A N/A NlA
Oreaon
Douglas Recorder 1120/10 2010-002165 N/A N/A N/A
Jackson Recrder 1/20110 2010-002237 N/A N/A N/A
Josephine Recorder 1/19110 2010-000654 NlA N/A N/A
Klamath Recorder 1/20/10 2010-000708 N/A N/A N/A
Morrow Recorder 1119/10 2010-25380 N/A N/A N/A
Union Recorder 1/19/10 20100193 N/A N/A N/A
Wallowa Recorder 1/19/10 63060 N/A N/A N/A
B-2
NY3 3067279.6779483 672870
EXlBITC
PROPERTY ADDITIONS
First
THE ADDITIONAL ELECTRIC SUBSTATIONS AND SUBSTATION
SITES OF THE COMPAN, in the State of Washington, including all buildings,
structues, towers, poles, equipment, appliances and devices for trsforming, converting
and distnbuting electnc energy, and the lands of the company on which the sae are
situated and all of the company's real estate and interests therein, machinery, equipment,
appliances, devices, appurenances and supplies, franchises, permits and other nghts and
other property forming a par 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 situted in the States of Washigton and Idaho, to wit:
1. Lincoln County, WA: "Reardan Twin Buttes i 15kV Sub"; Propert No. WA-
22-033; Grantor: James S. and Jo An Roberts; Portion of SW/4 NW/4 and
NW/4 W/4 of Section 9, Township 24 North, Range 39 East, W.M.
2. Bonner County, ID: "Old Town 115kV Sub"; Propert No. ID-7B-041;
Grantor: Bonner County Board of Commissioners; 35' x 250' stnp of vacated
Diamond Lumber Road in NW/4 SE/4 SE/4 of Section 24, Township 56
Nort, Range 6 West, B.M.
3. Kootenai County, ID: "Carlin Bay 115kV Sub"; Propert No. ID-K-047;
Grantor: Jeanine Deborah Kraack; Pt of NW/4 of Section 5, Township 48
Nort, Range 3 West, B.M.
4. Pinecroft Spokane County, Washington: "Irvin 1 i 5kV Sub"; Propert No.
WA-32-082; Grantor: LLC; Parcel 3-F Record of Surey in SW/4, Section 3,
Township 25 Nort, Rage 44 East, W.M.
5. Latah County, Idaho: "Moscow 230kV Substation"; Property No. ID-l L-031;
Grantor: George Wallace Johnson and Gerald Walter Johnson; Ptn of SW/4
NW/4 and NW/4 SW/4 in Section 14, Townhip 39 Nort Range 5 West,
B.M.
Second
BUSINESS OFFICE/S AND OR REAL ESTATE, in the State of Washington,
to wit:
C-1
NY3 3067279.6 779483 672870
1. Spokane County, WA: "North Center Properties"; Propert No. WA-32-004;
Grantor: Bar VanWert; Porton of W /2 of Block 6, Ross Cour addition to
City of Spokane, located in the SW/4 of Section 9, Township 25 Nort, Range
43 East, W.M.
2. Spokane County, WA: "Nort Center Properties"; Property No. WA-32-004;
Grator: Michael 1. Allen; Lot 1, Block One, Hamin's Subdivision of East
Half of Block 6, Ross Cour Addition to City of Spokane, located in the SW /4
of Section 9, Township 25 Nort, Rage 43 East, W.M.
3. Whitman County, Washington: "Pullman Service Center"; Property No. WA-
38-001; Grantor: State of Washington; SW/4 NW/4 in Section 3, Townhip
14 Nort, Range 45 East, W.M.
4. Spokane County, Washington: ''Nort Crescent Properies"; Property No.
WA-32-004; Grantor: Zachar & Caroline King; Lots 3 and 10, Hole's
Subdivision of Block 13, Ross Park Addition in SW/4 of Section 9, Township
25 North, Range 43 East, W.M.
Third
ADDITIONAL PROTECTION, MITIGATION AND ENHANCEMENT PROPERTY of the
Company, in the State of Idaho, real, personal, or mixed, acquired, constcted and/or
installed in, on, under and/or proximate to the Company's Clark Fork hydroelectric
development (including, without limitation, the Cabinet Gorge Hydroelectrc Generating
Station and the Noxon Rapids Hydroelectnc generating Station) for the purse of
protecting and/or enhancing wildlife (including fish and aquatic life), botanical life and/or
wetlands, and/or mitigating any har or damage thereto, and all other propert, 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 State of Idaho, to wit:
1. Bonner County, Idaho: "Cabinet Gorge Mitigation; Trestle Creek";
Propert No. ID-7B-251; Grtor: State of Idaho, Deparent of
Lands; SW/4 NE/4 and N/2 SE/4, in Section 16, Township 57 North,
Rage 1 East, B.M.
C-2
NY3 3067279.6 779483 672810
date fixed for redemption of the 2010_ Revenue Bonds, at the pnncipal amount thereof
plus accrued interest to the redemption date.
In the event that all 2010_ Revenue Bonds have become immediately due
and payable pursuant to Section 9.02(a) of the 2010_ Revenue Bond Indenture
following the occurence of an Event of Default (as defined in the 2010_ Revenue Bond
Indenture), the bonds of this senes (uness already due and payable) shall thereupon be
redeemed at the pnncipal amount thereof plus accrued interest to the redemption date (the
obligation to effect such redemption being rescinded upon the rescission of such
acceleration).
The obligation of the Company to make any payment of the pnncipal of or
interest on the bonds of this senes shall be reduced by the amount of any moneys held by
the 2010_ Revenue Bond Trustee under the 2010_ Revenue Bond Indenture and
available to make the corresponding payment of the pnncipal of or interest on the 2010_
Revenue Bonds.
Anyting in this bond to the contrary notwthstading, if, at the time of the
Matuty of the bonds of this senes, the stated aggregate pnncipal amount of such bonds
then outstanding shall exceed the aggregate pnncipal amount of 2010_ Revenue Bonds
then outstading, the aggregate principal amount of such bonds shall be deemed to have
been reduced by the amount of such excess.
The pnncipal hereof may be declared or may become due pnor to the
stated matuity date on the conditions, in the maner and at the time set forth in the
Mortgage, upon the occurence of a Completed Default as in the Mortgage provided.
As provided in the Mortgage and subject to certain limitations therein set
fort, this bond or any portion of the pnncipal 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 guanteed by the United States of Amenca, the pnncipal of
and interest on whch when due, and without regard to any reinvestment thereof, will
provide moneys which, together with moneys so deposited, will be sufcient to pay when
due the principal of and premium, if any, and interest on this bond when due.
The Mortgage contans terms, provisions and conditions relatig to the
consolidation or merger of the Company with or into, and the conveyance or other
transfer, or lease, of assets to, another Corpration and to the assuption by such other
Corpration, in certain circumstances, of all of the obligations of the Company under the
Mortgage and on the bonds secured thereby.
This bond is non-transferable except as required to effect transfer to any
successor trstee under the 2010_ Revenue Bond Indentue, any such trasfer to be
made at the office or agency of the Company in the Borough of Manatt The City of
New York, upon surender and cancellation of ths bond, together with a wntten
D-3
NY3 3067279.6 779483 672870
instrument of transfer whenever required by the Company duly executed by the registered
owner or by its duly authonzed attorney, and, thereupon, a new fully registered bond of
the same series for a like pnncipal amount will be issued to the tranferee 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 puroses.
In the maner prescnbed in the Mortgage, any bonds of this senes, upon
surender 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 pnncipal
amount of bonds of the same senes of other authonzed denominations.
No recourse shall be had for the payment of the pnncipal of or interest on
this bond against any incorporator or any past, present or future subscnber 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 oflaw, statute or constitution or by the enforcement
of any assessment or otherwse, all such liability of incorporators, subscnbers,
stockholders, offcers 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 Citiban, N.A., the Trustee
under the Mortgage, or its successor thereunder, shall have signed the form of certificate
endorsed hereon.
D-4
NY3 306n79.6 779483 672870
IN WITNESS WHREOF, AVISTA CORPORATION has caused this
bond to be signed in its corprate name by its President or one of its Vice Presidents by
his signatue or a facsimile thereof, and its corprate seal to be impressed or impnnted
hereon and attested by its Corprate Secretar or one of its Assistant Corporate
Secretares by his signatue or a facsimile thereof.
Dated:
A VISTA CORPORATION
By:
Name:
Title:
ATTEST:
NY3 3067279.6 779483 672870
TRUSTEE'S CERTIFICATE
Ths bond is one of the bonds, of the senes herein designated, descnbed or
provided for in the withn-mentioned Mortgage.
CITIBANK, N.A.
Trustee
By:
Authonzed Offcer
NY3 3067279.6 779483 672870
ASSIGNMENT FORM
FOR V ALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
(please insert social securty or other identifjing number of assignee J
(please print or tyewrite name and addres of assignee 1
the within bond of A VIST A CORPORATION and does hereby irrevocably constitute
and appoint , Attorney, to transfer said bond on the books of the
within-mentioned Company, will :fl power of substitution in the premises.
Dated:
(signature of assignor L
Notice: The signatue to this assignment
must correspond with the name as wntten
upon the face of the bond in every paricular
without alteration or enlargement or any
change whatsoever.
NY3 3067279.6 779483 672870
r r: i \,!\'J~"_,,,l'
201 ì JAri -S AM 10: 06
iD:\!-;~~;
UTILlTiE~:
LOAN AGREEMENT
BEfWEEN
CITY OF FORSYTH, MONfANA
AND
A VISTA CORPORA nON
$ I 7 ,00,00
CITY OF FORSYTH, MONTANA
POLLUTION CONfROL REVENUE REFUNDING BONDS
(A VISTA CORPORATION COLSTRIP PROJECT)
SERIES 2010B
DATED AS OF DECEMBER 1,2010
The amounts payable to the Issuer and certain other rights of the Issuer under this Loan
Agreement (except for amounts payable to, and certain rights of, the Issuer under Section 4.04,
Section 4.06(a), Section 5.03, Section 5.06, Section 5.07, Section 5.08 and Section 7.05 hereof
and any rights of the Issuer to receive notices, certficates, requests, requisitions, directions and
other communications hereunder) and the rights of the Issuer to any Credit Facility and any
Additional Collateral therefor that may be delivered by the Company in accordanc~ with Section
4.09 hereof, have been pledged and assigned to The Bank of New York Mellon Trust Company,
N A., as Trustee under the Trust Indenture, dated as of December 1,2010, and prior to an Event
of Default, the Issuer's right to give approvals and consents hereunder, from the Issuer. For the
purpse of pedecting the security interest of such Trustee in such amounts payable and such
nghts assigned to such Trustee under the Montana Uniform Commercial Code - Secured
Transactions, the counterpar of this Loan Agreement actually delivered to the Trustee shaJJ be
deemed the original thereof.
2893227.01.0Rdoc
870260IRBlmo Series 20lOB Lo Agreement
LOAN AGREEMENT
BETN
CITY OF FORSITH, MONTANA
AND
A VISTA CORPORATION
$17,00 ,000
CITY OF FORSYT, MONTANA
POLLUTION CONTROL REVENUE REFUNDING BONDS
(A VISTA CORPORA nON COLSTRIP PROJECT)
SERIES 20 lOB
DATED AS OF DECEMBER i , 2010
The amounts payable to the Issuer and certain other rights of the Issuer under this Loan
Agreement (except for amounts payable to, and certain rights of, the Issuer under Section 4.04,
Section 4.06(a), Section 5.03, Section 5.06, Section 5.07, Section 5.08 and Section 7.05 hereof
and any rights of the Issuer to receive notices, certificates, requests, requisitions, directions and
other communications hereunder) and the rights of the Issuer to any Credit Facilty and any
Additional Collateral therefor that may be delivered by the Company in accordance with Section
4.09 hereof, have been pledged and assigned to The Bank of New York Mellon Trust Company,
N.A., as Trustee under the Trust Indenture, dated as of December I, 20l0, as amended and
restated, from the Issuer. For the purpose of perfecting the security interest of such Trustee in
such amounts payable and such rights assigned to such Trustee under the Montana Uniform
Commercial Code - Secured Transactions, the counterpart of this Loan Agreement actually
delivered to the Trustee shall be deemed the original thereof.
This counterpart of the Loan Agreement has been actually delivered to the Trustee and
the Trustee acknowledges receipt thereof.
TH BANK OF NEW YORK MELLON TRUST
COMPANY, N .A., Trustee
Series 2010B Loan Agreement
TABLE OF CONTENTS
SECTION PAGE
Recitals.............................................................................................................................................1
ARTICLE I DEFINITIONS ................................................................................................................2
ARTICLE II REPREENTATIONS, WARRANTIES AND AGREEMENTS.............................................2
Section 2.01. Representations, Warranties and Agreements of Issuer ................................2
Section 2.02. Representations. Warranties and Agreements of Company ..........................
ARTICLE II ISSUANCE OF THE BONDS; THE LOAN; DISPOSITION OF PROCEEDS OF
THE BONDS; THE PROJECf ...........................................................................7
Section 3.01. Issuance of Bonds ..........................................................................................7
Section 3.02. Issuance of Other Obligations........................................................................7
Section 3.03. The Loan; Disposition of Bond Proceeds and Certain Other
Moneys...................................................................................................7
Section 3.04. Changes to Project .........................................................................................7
ARTICLE IV LOAN PAYMENTS; PAYMENTS TO REMARKETING AGEN AND
TRUSTEE; ÜTHER OBLIGATIONS .................................................................8
Section 4.01. Loan Payments ...............................................................................................8
Section 4.02. Payments of Purchase Prce ...........................................................................8
Section 4.03. Payments Assigned; Obligation Absolute .....................................................9
Section 4.04. Payment of Expenses .....................................................................................9
Section 4.05. Indemnification ..............................................................................................9
Section 4.06. Payment of Taxes and Charges in Lieu Thereof.........................................10
Section 4.07. Credit Facility ..............................................................................................1 1
Section 4.08. Compliance With Pror Agreement .............................................................1 1
Section 4.09. Delivery of Additional Collateral ................................................................12
Section 4.10. First Mortgage Bonds ..................................................................................13
ARTICLEV SPECIAL COVENANTS ..............................................................................................13
Section 5.01. Maintenance of Existence; Conditions Under Which
Exceptions Permitted ...........................................................................13
Section 5.02. Permits or Licenses ......................................................................................14
Section 5.03. Arbitrage Covenant......................................................................................14
Section 5.04. Financing Statements ...................................................................................14
Section 5.05. Covenants With Respect to Tax-Exempt Status of the Bonds.....................l4
Section 5.06. Indemnification of Issuer .............................................................................15
Section 5.07. Records of Company; Maintenance and Operation of the
Project ..................................................................................................15
Section 5.08. Right of Access to the Project.....................................................................16
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SECTION PAGE
Section 5.09. Remarketing Agent ......................................................................................16
Section 5.10. Covenant to Provide Ongoing Disclosure....................................................l6
AR'ÌiCLE VI ASSIGNMENT ........... ........ ....... ....................................... ........... ................ ....... ... .....17
Section 6.01. Conditions....................................................................................................17
Section 6.02. Documents Furnished to Trustee .................................................................17
Section 6.03. Limitation.....................................................................................................17
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES .................. ................................................17
Section 7.01. Events of Default .........................................................................................17
Section 7.02. Force Majeure ..............................................................................................18
Section 7.03. Remedies......................................................................................................19
Section 7.04. No Remedy Exclusive..................................................................................19
Section 7.05. Reimbursement of Attorneys' Fees .............................................................19
Section 7.06. Waiver of Breach .........................................................................................20
ARTICLE VII PURCHASE OR REDEMPTION OF BONDS .................. ......... ...... ............ .... ............ .20
Section 8.01. Redemption of Bonds ..................................................................................20
Section 8.02. Purchase of Bonds........................................................................................20
Section 8.03. Obligation to Prepay ....................................................................................20
Section 8.04. Compliance With Indenture.........................................................................21
ARTICLE IX MISCELLANEOUS .............................................................. ......................................22
Section 9.01. Term of Agreement......................................................................................22
Section 9.02. Notices .........................................................................................................22
Section 9.03. Paries in Interest; Reference to First Mortgage Bonds, Other
Additional Collateral, Credit Facility, Etc. ..........................................22
Section 9.04. Amendments ...............................................................................................23
Section 9.05. Counterparts ................. ................................................ ...............................23
Section 9.06. Severability ..................................................................................................23
Section 9.07. Governing Law ...........................................................................................23
Signatures.......................................................................................................................................24
EXHIBIT A Project Description
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LOAN AGREEMENT
This LOAN AGREEMENT, dated as of December i, 2010, between the Issuer (as defined
below) and the Company (as defined below), is between the CITY OF FORSYTH, MONTANA, a
political subdivision duly organized and existing under the Constitution and laws of the State
(the "Issuer"), and AVISTA CORPORATION, a corporation duly organized under the laws of the
State of Washington and duly qualified to conduct business in the State (the "Company").
RECITALS:
A. The Issuer is authorized by the provisions of the Act to issue one or more series of
its revenue bonds to finance all or part of the cost of projects consisting of exempt facilities (as
such term is used in the Code) located within the terrtonal limits of the Issuer.
B. The Act provides that payment of the principal of and interest on revenue bonds
issued thereunder shaH be secured by a pledge of the revenues out of which such revenue bonds
shall be payable and may be secured by a pledge of an agreement relating to a project.
C. The Issuer has previously issued the Prior Bonds on behalf of the Company for the
purpse of refinancing a portion of the costs of acquiring and improving the Project.
D. The Issuer is authorized by the Act to issue its revenue refunding bonds to refund
the Prior Bonds.
E. By proper action of its governing boy taken pursuant to and in accordance with the
provisions of the Act, the Issuer has authorized and undertaken to issue its Pollution Control
Revenue Refunding Bonds (Avista Corporation Colstrip Project) Series 20WB and the issuance
of the Bonds to refund the Prior Bonds is authorized by the provisions of the Act.
F. The issuance of the Bonds to refund the Prior Bonds wil provide financing on more
advantageous terms for the cost of the Project financed by the Prior Bonds.
G. The Bonds shall be issued under and pursuant to the Trust Indenture, dated as of
December i, 2010, between the Issuer and The Bank of New York Mellon Trust Company,
NA., as Trustee, pursuant to which the Issuer shall pledge and assign to the Trustee certn
rights of the Issuer hereunder.
H. Pursuant to this Agreement, the Issuer wil Joan the proceeds of the Bonds to the
Company to provide financing for the Project, and the Company agrees to make, or cause to be
made, payments suffcient to pay when due (whether at stated maturity, by acceleration or
otherwise) the principal of and premium, if any, and interest on the Bonds.
i. The Company agrees under this Agreement to pay, or cause to be paid, when due,
the purchase price of Bonds purchased pursuant to the terms of the Indenture.
Series 201 0 Lon Agreement
J. The issuance, sale and delivery of the Bonds and the execution and delivery of this
Agreement and the Indenture have been in all respects duly and validly authorized in accordance
with the Act and the Bond Resolution.
K. The Company may provide Additional Collateral as provided herein and in the
Trust Indenture.
In consideration of the respective representations and agreements contained in this
Agreement, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
All words and terms used but not otherwise defined in this Agreement, shall for all
purposes of this Agreement have the meanings specified in Article I of the Indenture, unless the
context clearly requires otherwise. In addition, the following words and terms shall have the
following meanings when used in this Agreement:
"Affliate" means any entity controllng, controlled by or under common control with the
Company.
"Indenture" means the Trust Indenture, dated as of December i, 2010, between the
Issuer and the Trustee, relating to the issuance of the Bonds as such Trust Indenture may be
supplemented and amended from time to time as therein permitted.
The words "hereto," "hereunder" and other words of similar import refer to this
Agreement as a whole.
ARTICLE II
REPRESENTATIONS, WARRNTIES AND AGREEMENTS
Section 2.01. Representations, Warranties and Agreements of Issuer. The Issuer
represents, warrants and agrees that:
(a) The Issuer is a political subdivision of the State, duly organized and
validly existing under the Constitution and laws of the State.
(b) Under the Act, the Issuer has the power to enter into the transactions
contemplated by this Agreement and the Indenture and to car out its obligations
hereunder and thereunder, including the issuance and sale of the Bonds. By proper action
of its governing body, the Issuer has been duly authorized to execute, deliver and duly
perform this Agreement and the Indenture and to issue and sell the Bonds and has made
an determinations and findings as and where required by Section 90-5-106 of the Act.
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(c) The aggregate principal amount of the Bonds authorized to be issued
under the Indenture for the purpse of refunding the Pror Bonds does not exceed the
aggregate principal amount of the Pror Bonds now outstanding.
(d) The Pror Agreement and the Prior Indenture are each in full force and
effect and have not been amended or supplemented.
(e) The proceeds of the sale of the Bonds (i) wil be deposited with the Prior
Trustee for deposit into the Prior Bond Fund to provide a portion of the moneys
necessary for the Refunding and (ii) wil be applied by the Prior Trustee to redeem the
Pror Bonds pursuant to the Pror Indenture on the Redemption Date. The Pror Bonds
are now outstanding in the principal amount of $17,00,00. Prior to the issuance and
delivery of the Bonds, the Pror Trustee wil be given irrevocable instructions and wil be
directed to caU all of the Prior Bonds for redemption on the Redemption Date.
(f) The Bonds are to be issued under and secured by the Indenture, pursuant
to which certin of the Issuer's right. title and interest in this Agreement and the revenues
derived by the Issuer pursuant to this Agreement wil be pledged and assigned to the
Trustee as security for payment of the principal and purchase price of, premium, if any.
and interest on the Bonds.
(g) Neither the execution and delivery of this Agreement or the Indenture, the
issuance and sale of the Bonds, the consummation of the transactions contemplated
hereby and thereby, nor the fulfillment of or compliance with the tenns and conditions of
this Agreement, the Tax Certificate, the Indenture or the Bonds conflcts with or results in
a breach of the terms, conditions or provisions of any restriction or any agreement or
instrument to which the Issuer is now a party or by which it is bound, or constitutes a
default under any of the foregoing.
(h) The Issuer has not assigned or pledged and wil not assign or pledge its
interest in this Agreement other than to secure the Bonds.
(i) To the knowledge of the Issuer. after due inquiry. no litigation is pending
or threatened against the Issuer to restrain or enjoin the issuance or sale of the Bonds or
in any way affecting any authority for or the validity of the Bonds, the Indenture, this
Agreement or the existence or powers of the Issuer or the right of the Issuer under the Act
to refinance a portion of the costs of the Project through the issuance of the Bonds.
G) To the knowledge of the Issuer, after due inquiry, no event has occurred
and no condition exists which, upon the issuance of the Bonds, would constitute an event
of default on the part of the Issuer under the Prior Indenture.
(k) The Issuer wil not knowingly take or omit to take any action reasonably
within its control the tang or omission of which would adversely afect the Tax-Exempt
status of the Bonds. The Issuer wil fie or cause to be filed with the United States
Department of Treasury the infonnation required by Section i 49( e) of the Code.
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(I) A public hearing relating to the Refunding for the Project was held on
August 23,199, following public notice thereof, pursuant to Section 147(t) of the Code,
and the public hearing and approval requirements of Section 147(f) of the Code have
been satisfied.
(m) Within the meaning of Sections2-2-121 and 2-2-125, Montana Code
Annotated, as amended, no "public officer," "public employee," "officer" or "employee"
of the Issuer is engaged as counseL. consultant, representative, or agents of the Company,
or has a substantial financial interest in the Company. None of the offcers, deputies, or
employees of the Issuer or employees having terminated their employment with the
Issuer within the six months immediately preceding this Agreement are "interested in"
this Agreement, the Indenture, the Bonds or the transactions contemplated thereby, within
the meaning of Section 2-2-201, Montana Code Annotated, as amended.
Concurrently with the initial authentication and delivery of the Bonds under the
Indenture, the Issuer shall execute and deliver a certificate reaffrmng the foregoing
representations, warranties and agreements as of the date thereof.
Sectin 2.02. Representations7 Warranties and Agreements of Company. The Company
represents, warrants and agrees that:
(a) It is a corpration duly organized and validly existing under the laws of
the State of Washington and duly qualified as a foreign corpration in good standing in
the State, is not in violation of any provision of its Articles of Incorpration or its
Bylaws, in each case as the same have been amended, has full corporate power to own its
properties and conduct its business, and has the corprate power to enter into, and by
proper corprate action has duly authorized the execution and delivery of, this Agreement
and the Tax Certficate.
(b) Neither the execution and delivery of this Agreement or the Tax
Certificate, the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement or the Tax
Certificate conficts with or wil result in a breach of any of the terms, conditions or
provisions of any law or judgment to which the Company or its propert or assets are
subject or of any corprate restriction contained in its Articles of Incorporation or its
Bylaws, in each case as the same have been amended, or any agreement or instrument to
which the Company is now a par or by which it is bound, or constitutes, with or without
the giving of notice or lapse of time or both, a default under any of the foregoing, or
results in the creation or impoition of any lien, charge or encumbrance whatsoever upon
any of the property or assets of the Company (other than any lien, charge or encumbrance
which may be created in favor of the Provider on any Bonds purchased by or pledged to
the Provider or on the Company's nght to receive certain moneys under the Indenture)
under the terms of any instrument or agreement.
(c) This Agreement has been duly and validly authorized, executed and
delivered by the Company and is a legal, valid and binding obligation of the Company,
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enforceable in accordance with its terms, except as enforceability may be limited by
bankrptcy, insolvency, reorganization, moratorium, usury or other similar laws affecting
the rights of creditors generally, equitable principles relating to the availability of
remedies and principles of public or governmental policy limiting the enforceabilty of
the indemnification and contribution provisions.
(d) Other than the orders of the Washington Utilities and Transporttion
Commission, the Idaho Public Utilities Commission and the Public Utility Commission
of Oregon and the approval by the Issuer, all of which orders and approvals wil have
been received and be in effect prior to the initial authentication and delivery of the Bonds,
no consent, approval, authorization or order of, or registration with, any court or
governmental or regulatory agency or body is required with respect to the Company for
the execution, delivery and pedormance by the Company of this Agreement and the Tax
Certificate.
(e) The Company has received an executed counterpart of the Indenture and
hereby consents to and approves of the provisions thereof (including, without limitation,
the provisions applicable to it).
(f) The information relating to the Project furnished by the Company in
writing to Chapman and Cutler LLP, as Bond Counsel, in connection with the issuance
by the Issuer of the Bonds, is, to the best of the Company's knowledge, true and correct.
(g) The Pror Agreement and the Pror Indenture are in full force and effect
and have not been amended or supplemented.
(h) To the best knowledge of the Company, no event has occurred and is
continuing under the provisions of the Pror Indenture that now constitutes, or with the
lapse of time or the giving of notice, or both, would constitute, an event of default under
the Prior Indenture.
(i) Upon the initial authentication and delivery of the Bonds, the Company
has given or wil give timely notice as required by the provisions of the Prior Agreement
of the Company's intent to prepay the amounts payable thereunder to provide for the
redemption of the Pror Bonds on the Redemption Date.
0) The aggregate principal amount of Bonds authorized to be issued under
the Indenture does not exceed the aggregate principal amount of the Prior Bonds now
Outstanding.
(k) The Company does not, as of the date of issuance of the Bonds,
reasonably expect any use of moneys derived from the proceeds of the Bonds or any
investment or reinvestment thereof or from the sale of the Project which would cause the
Bonds to be classified as "arbitrage bonds" within the meaning of Section 148 of the
Code.
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(I) All of the proceeds of the Pnor Bonds, including the investment earnings
thereon, have been disbursed in accordance with the provisions of the Pnor Indenture and
the Prior Agreement and there are no proceeds of the Prior Bonds, or investment earnings
therefrom, or any other moneys being held by the Prior Trustee under the Prior Indenture.
(m) The Pollution Control Facilities that comprise the Project constitute
Exempt Facilities and consist of those facilties described in Exhibit A hereto (as such
Exhibit A is from time to time amended or supplemented in accordance with Section 3.04
hereof), and the Company shall not consent to any changes in the Project which would
adversely affect the qualification of the Project as a "project" under the Act or adversely
affect the Tax-Exempt status of the Bonds.
(n) Substantially all of the proceeds of the Pnor Bonds have been expended
for the purpose of acquiring, constructing and improving the Project, which constitutes
Exempt Facilties. None of the proceeds of the Pnor Bonds were used (i) to acquire land
(or an interest therein) or (ii) to acquire any propert (or an interest therein) unless the
first use of such property was pursuant to such acquisition, all within the meaning of
Section 147 of the Code.
(0) The Montana Department of Health and Environmental Sciences has
certified that the poHution control facilities constituting part of the Project, as designed.
are in furtherance of the purpse of abating or controllng atmospheric pollutants or
contaminants, and water pollution, as the case may be.
(p) No construction, reconstruction or acquisition (within the meaning of the
Code) of the Project was commenced prior to the taking of offcial action by the Issuer
with respect thereto and the Project has been placed in service.
(q) The average maturity of the Bonds does not exceed 120% of the average
reasonably expected remaining economic life of the Project.
(r) All of the Prior Bonds wil be redeemed within 90 days of the date of the
. initial authentication and delivery of the Bonds, and all of the proceeds of the sale of the
Bonds wil be spent within 90 days of the initial authentication and delivery of the Bonds.
(s) The Project (i) was designed to meet applicable federal, state and local
requirements for the control of pollution or the disposal of solid waste, (ii) was and is to
be used solely for purses contemplated by the Act, and (iii) is located within the
boundaries of Rosebud County, Montana.
(t) The representations, warranties and covenants of the Company set forth in
the Project Certificate are incorprated herein by reference and are hereby made a part of
this Agreement as if set forth herein.
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(u) The Company wil cooperate with the Issuer in filing or causing to be fied
with the United States Department of Treasury the information required by
Section 149(e) of the Code.
(v) The Company wil pay the principal of and premium, if any, and interest
to the Redemption Date on all Pror Bonds that are validly presented to the Company for
payment after the Pror Trustee has paid to the Company, in accordance with Section 4.08
of the Pror Indenture, any moneys held in trust for the payment of the principal of and
premium, if any, and interest on the Prior Bonds.
Concurrently with the initial authentication and delivery of the Bonds under the
Indenture, the Company shall execute and deliver a certificate reaffrming the foregoing
representations, warranties and agreements as of the date thereof.
ARTICLE III
ISSUANCE OF THE BONDS; THE LOAN;
DISPOSITION OF PROCEEDS OF THE BONDS; THE PROJECT
Sectin 3.01. Issuance of Bonds. In order to refinance a portion of the cost of the Project
by effecting the Refunding, the Issuer shall issue the Bonds under and in accordance with the Act
and pursuant to the Indenture. The Company hereby approves the issuance of the Bonds and all
terms and conditions thereof.
Section 3.02. Issuance of Other Obligatins. The Issuer and the Company expressly
reserve the right to enter into, to the extent permitted by law, an agreement or agreements other
than this Agreement with respect to the issuance by the Issuer, under an indenture or indentures
other than the Indenture, of obligations to provide additional funds to pay costs of facilities in
addition to the Project or to provide for the refunding of an or any principal amount of the
Bonds. Such obligations wil not be entitled to the benefits of the Indenture, any Credit Facilty
or any Additional Collateral.
Sectin 3.03. The Loan; Dispositon of Bond Proceeds and Certin Other Moneys. The
Issuer shall lend to the Company the proceeds of the issuance and sale of the Bonds for the
purposes specified in Section 3.01 of this Agreement. The Issuer and the Company shall,
simultaneously with the delivery of the Bonds, cause such proceeds, other than accrued interest,
if any, to be transferred to the Pror Trustee for deposit into the Pror Bond Fund to be used to
pay the principal amount of the Pror Bonds upon their redemption on the Redemption Date.
Section 3.04. Changes to Project. The Company may at its own expense cause the
Project to be remodeled or cause such substitutions, modifications and improvements to be made
to the Project from time to time as the Company, in its discretion, may deem to be desirable for
its uses and purposes, which remodeling, substitutions, modifications and improvements shall be
included under the terms of this Agreement as part of the Project; provided, however, that no
such remodeling, substitutions, modifications or improvements shall change the descnption of
the Project set forth in Exhibit A to this Agreement or change the function of any principal
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component of the Project described in Exhibit A to this Agreement unless, in either case, the
Trustee and the Issuer first receive a Favorable Opinion of Bond Counsel with resp~ct to such
change. If any such supplement or amendment affects the description of the Project, the
Company and the Issuer wil amend Exhibit A to this Agreement to reflect such supplement or
amendment, which supplement or amendment wil not be considered as an amendment to this
Agreement requiring the consent of any Owner, the Trustee or the Provider for the purposes of
Article XII of the Indenture.
ARTICLE iv
LOAN PAYMENTS; PAYMENTS TO REMARKETING AGENT AND TRUSTEE;
OTHER OBLIGATIONS
Sectin 4.01. Lon Payments. (a) As and for repayment of the loan made to the
Company by the Issuer pursuant to Section 3.03 hereof, the Company shall pay to the Trustee,
for the account of the Issuer, an amount equal to the aggregate principal amount of and the
premium, if any, on the Bonds from time to time Outstanding and, as interest on its obligation to
pay such amount, an amount equal to interest on the Bonds, such amounts to be paid in
installments due on the dates, in the amounts and in the manner provided in the Indenture for the
payment of the principal of and premium, if any, and interest on the Bonds, whether at maturity,
upon redemption, acceleration or otherwise; provided, however, that the obligation of the
Company to make any such payment hereunder shall be reduced by the amount of any moneys
held by the Trustee under the Indenture and available for such payment; and provided, further,
that the obligation of the Company to make any payment hereunder shall be deemed to be
satisfied and discharged to the extent of the corresponding payment made (i) by the Provider to
the Trustee under any Credit Facility (unless the Credit Facilty then in effect shall be an
insurance policy, in which case such obligation of the Company shall not be deemed to be
satisfied and discharged) or (ii) by the Company of principal of or premium, if any, or interest on
any First Mortgage Bonds and any Additional Collateral that corresponds to the principal of or
premium, if any, or interest on the Bonds.
(b) In the event the Company shall fail to make any payment required by
Section 4.01(a) hereof with respect to the pnncipal of and premium, if any, and interest on any
Bond, the payment so in default shall continue as an obligation of the Company until the amount
in default shall have been fully paid, and the Company wil pay interest on any overdue amount
with respect to principal of such Bond at the interest rate then borne by such Bond until paid.
Section 4.02. Payments of Purchase Prie. (a) The Company shaH payor cause to bepaid for its account to the Trustee amounts equal to the amounts to be paid by the Trustee as the
purchase price for such Bonds pursuant to Section 3.01 and Section 3.02 of the Indenture in
respect of Outstanding Bonds, such amounts to be paid to the Trustee on the dates such payments
are to be made pursuant to Section 3.01 and Section 3.02 of the Indenture; provided, however,
that the obligation of the Company to make any such payment hereunder shall be reduced by the
amount of any moneys held by the Trustee under the Indenture and available for such payment.
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(b) The Company may provide for the payment of the amounts to be paid by the
Trustee pursuant to Section 3.01 and Section 3.02 of the Indenture by the delivery of a Credit
Facility, which consists of a direct pay letter of credit, to the Trustee. The Company hereby
irrevocably authorizes and directs the Trustee to draw moneys under such Credit Facility in
accordance with the provisions of the Indenture and such Credit Facilty to obtain the moneys
necessary to pay the purchase price for Bonds payable under Section 3.01 and Section 3.02 of the
Indenture if and when due.
Section 4.03. Payments Assigned; Obligaton Absolute. It is understood and agreed that
the Loan Payments and all payments to be made by the Company on any First Mortgage Bonds
and any Additional CoHateral that corresponds to the principal of or premium, if any, or interest
on the Bonds are, by the Indenture, pledged and assigned by the Issuer to the Trustee pursuant to
the Indenture, and that all right, title and interest of the Issuer hereunder (except for amounts
payable to, and the rights of, the Issuer under Section 4.04, Section 4.06a), Section 5.03,
Section 5.06, Section 5.07, Section 5.08 and Section 7.05 hereof and the Issuer's rights to receive
notices, certificates, requests, requisitions, directions and other communications hereunder) are
pledged and assigned to the Trustee pursuant to the Indenture. The Company assents to such
pledge and assignment and agrees that the obligation of the Company to make the Loan
Payments and payments to the Trustee under Section 4.02 hereof and to make the payments on
any First Mortgage Bonds and any Additional Collateral that corresponds to the principal of or
premium, if any, or interest on the Bonds shall be absolute, irrevocable and unconditional and
shaH not be subject to canceHation, termination or abatement, or to any defense other than
payment, or to any right of setoff, counterclaim or recoupment arising out of any breach under
this Agreement or the Indenture or otherwise by the Company , the Trustee, the Remarketing
Agent, the Provider or any other party, and, further, that the Loan Payments and the other
payments due hereunder and on any First Mortgage Bonds and any Additional Collateral that
corresponds to the principal of or premium, if any, or interest on the Bonds shall continue to be
payable at the times and in the amounts herein and therein specified whether or not the Project,
or any portion thereof, shall have been destroyed by fire or other casualty, or title thereto, or the
use thereof, shall have been taken by the exercise of the power of eminent domain, and that there
shall be no abatement of or diminution in any such payments by reason thereof, whether or not
the Project shall be used or useful and whether or not any applicable laws, regulations or
standards shall prevent or prohibit the use of the Project or for any other reason. The Project
shall not constitute any part of the Trust Estate or any part of the security for the Bonds.
Section 4.04. Payment of Expenses. The Company shaH pay the reasonable
compensation and reimbursement of reasonable expenses and advances payable to the Issuer, the
Trustee, the Paying Agent, the Registrar, the Secunties Depository, Mooy's and S&P under the
Indenture an of any Remarketing Agent under a Remarketing Agreement directly to each such
entity. The Company shall also pay all of the expenses of the Prior Trustee in connection with
the Refunding and all other reasonable fees and expenses incurred in connection with the
issuance of the Bonds, including underwriting and legal fees and expenses. The obligations of
the Company under this Section 4.04 shall survive the termination of this Agreement.
Section 4.05. Indemnificaton. The Company releases the Trustee, the Paying Agent and
the Registrar and their respective officers, agents, servants and employees from, agrees that the
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Trustee, the Paying Agent and the Registrar and their respective offcers, agents, servants and
employees shall not be liable for, and agrees to indemnify and hold free and harmless the
Trustee, the Paying Agent and the Registrr and their respective officers, agents, directors,
servants and employees from and against, any liability for any loss or damage to property or any
injury to or death of any person that may be occasioned by any cause whatsoever pertaining to
the Project, except in any case as a result of the negligence or wilful misconduct of the Trustee,
the Paying Agent and the Registrar and their respective offcers, agents, servants and employees.
The Company wiJ indemnify and hold free and harmless the Trustee, the Paying Agent
and the Registrar and their respective offcers, agents, servants, directors and employees from
and against any loss, claim, damage, tax, penalty, liability, disbursement, litigation or other
expenses, attorneys' fees and expenses or court costs arising out of, or in any way relating to, the
execution or peiformance of this Agreement, the Tax Certificate, the issuance or sale of the
Bonds, the delivery of any Credit Facility, the delivery of any Additional Collateral pursuant to
Section 4.08 hereof, the Refunding, the acceptance or administration of the trust under the
Indenture or any other cause whatsoever pertaining to this Agreement, the Tax Certficate, the
Indenture or the Credit Facility, except in any case as a result of the negligence or wilful
misconduct of the Trustee, the Paying Agent and the Registrar or their respective offcers,
agents, servants and employees.
The obligations of the Company under this Section 4.05 shall survive the termination of
this Agreement and the earlier removal or resignation of the Trustee.
Section 4.06. Payment of Taxes and Charges in Lieu Thereof. (a) The Company
covenants and agrees that it wil, from time to time for so long as the Company has an ownership
interest in the Project, promptly pay and discharge or cause to be paid and discharged when due
its share of all taxes, assessments, levies, duties, imposts and governmental, utilty and other
charges lawfully imposed upon the Project or any part thereof or upon income and profits thereof
or any payments hereunder or on any Credit Facility or any Additional CollateraL. In the event
that the Company sells or otherwise transfers its interest in the Project while the Bonds are
Outstanding, the Company shall require the purchasers or transferor of the Company's interest in
the Project to assume the Company's obligations under this Section 4.06a).
(b) The Company shall payor cause to be satisfied and discharged or make adequate
provision to satisfy and discharge (including the provisions of adequate bonding therefor) within
60 days after the same shall accrue, any lien or charge upon the Loan Payments or payments
under Section 4.02 hereof or amounts payable on any Credit Facility or any Additional
Collateral, and an lawful claims or demands for labor, materials, supplies or other charges which,
if unpaid, might be or become a lien thereon.
(c) Notwithstanding subsections (a) and (b) of this Section, the Company may, at its
expense and in its own name and behalf or in the name and behalf of the Issuer, in good faith
contest any such liens, taxes, assessmenli: and other charges and, in the event of any such contest,
may permit such liens, taxes, assessments or other charges so contested to remain unpaid during
the period of such contest and any appeal therefrom; provided, further, that during such period
enforcement of such contested item is effectively stayed, unless by nonpayment of any such
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items the lien of the Indenture as to the amounts payable hereunder or on any Credit Facility or
any Additional Collateral wil be materially endangered, in which event the Company shall
promptly pay and cause to be satisfied and discharged all such unpaid items. The Issuer wil
cooperate fully with the Company in any such contest. In the event that the Company shall fail
to pay any of the foregoing items required by this Section to be paid by the Company, the Issuer
or the Trustee may (but shall be under no obligation to) pay the same, and any amounts so
advanced therefor by the Issuer or the Trustee shall become an additional obligation of the
Company to the part making the advance. The Company agrees to repay the amounts so
advanced, from the date thereof, together (to the extent permitted by law) with interest thereon
until paid at a rate per annum which is one percentage point greater than the highest rate per
annum then borne by any of the Bonds.
Sectin 4.07. Credit Facüit. (a) The Issuer and the Company agree to be bound by the
provisions of the Indenture pertining to any Credit Facilty.
(b) The Company may provide for a Change of Credit Facilty at any time that the
Bonds are subject to optional redemption pursuant to Section 4.02(b) of the Indenture, provided
that the Company delivers to the Trustee and the Remarketing Agent not less than 30 days before
the effective date of the Change of Credit Facilty:
(1) a notice which (A) states the effective date of the Change of Credit
Facility, (B) describes the terms of the Change of Credit Facilty, (C) directs the Trustee
to give notice pursuant to Section 2.17 of the Indenture that the Bonds are subject to
mandatory purchase, in whole, on or before the effective date of the Change of Credit
Facility in accordance with Section 3.02(b) of the Indenture, and (D) directs the Trustee
to take any other action as shall be necessary for the Trustee to take to effect the Change
of the Credit ràcility; and
(2) on or before the effective date of the Change of Credit Facility, the
Company shall furnish to the Trustee a Favorable Opinion of Bond Counsel with respect
to such Change of Credit Facility and stating, in effect, that such Change of Credit
Facility is authorized under this Agreement.
(c) The Company may provide for one or more extensions of a Credit Facility for any
period commencing after its then-current expiration date without complying with the foregoing
provisions of this Section, including, but not limited to, the delivery to the Trustee of new First
Mortgage Bonds in substitution for First Mortgage Bonds then held by the Trustee, identical in
all respects to any First Mortgage Bonds then held by the Trustee except for a subsequent stated
maturity date.
(d) The Company may rescind its election to make a Change of Credit Facility at any
time prior to the effective date thereof.
Sectin 4.08. Compliance With Prior Agreement. The Company hereby confirms its
obligations under the Pror Agreement to furnish any moneys required to be deposited with the
Pror Trustee under the Prior Indenture in order to redeem the Pror Bonds on the Redemption
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Date, to the extent that the proceeds of the Bonds on deposit in the Pnor Bond Fund, together
with any investment earnings thereon, is less than the amount required to pay the principal of and
applicable redemption premium and interest on the Prior Bonds upon their redemption on the
Redemption Date, in accordance with the terms and conditions of the Pnor Indenture.
Section 4.09. Delivery of Additnal CoI1oral.(a) During any period that the Bonds are
secured by a Credit Facilty, the obligation of the Company pursuant to Section 4.01 hereof to
repay the loan made to it by the Issuer pursuant to Section 3.03 hereof may be secured
Additional Collateral.
(b) Any Additional Collateral shall (i) mature on the same date and in the same
principal amount as the Bonds, (ii) bear interest at the same rate and be payable at the same times
as the Bonds, (iii) contain mandatory redemption provisions correlative to the mandatory
redemption provisions of Section 4.03 of the Indenture, and (iv) subject to the provisions of
Section 4.09(c) hereof, require payments of the principal thereof and premium, if any, and
interest thereon to be made to the Trustee for the account of the Issuer. If such Additional
Collateral consists of First Mortgage Bonds, they shall be delivered to and registered in the name
of the Trustee (or, subject to Section 5.12 of the Indenture, the Trustee's nominee) for the
account of the Issuer and the benefit of the Owners from time to time of the Bonds and shall be
held, voted, transferred and surrendered by the Trustee subject to and in accordance with the
respective provisions of this Agreement and the Indenture. Any moneys received by the Trustee
with respect to such Additional Collateral shall be used to make the corresponding payment then
due of principal of and premium, if any, or interest on the Bonds in accordance with the terms of
the Bonds and the Indenture. Any proceeds of such Additional Collateral in excess of the
amounts necessary to pay in full the principal of and premium, if any, or interest on the Bonds
shall be remitted to the Company.
(c) The Company shall receive a credit against its obligations to make any payment of
principal of and premium, if any, or interest on any Additional Collateral described in
Section 4.09(b) hereof (whether at matunty, upon redemption or otherwise), and such obligations
shall be fully or partially, as the case may be, satisfied and discharged, in an amount equal to the
amount, if any, paid by the Company under Section 4.01 hereof, or otherwise satisfied or
discharged, in respect of the principal of and premium, if any, or interest on the Bonds; provided,
however, that, if the Credit Facility then in effect shall be an insurance policy, the Company shall
receive no such credit for any payment with respect to any Bond made by the Provider. The
obligations of the Company to make such payment of principal of and premium, if any, or
interest on any Additional Collateral shall be deemed to have been reduced by the amount of
such credit.
(d) On any Business Day, the Company may provide for the release of the then-existing
Additional Collateral by delivering other Additional Collateral to the Trustee to secure the
obligation of the Company to repay the loan made to it pursuant to Section 3.03 hereof, but only
if the Company shall, on the date of delivery of such other Additional Collateral, simultaneously
deliver to the Trustee:
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(i) a Favorable Opinion of Bond Counsel regarding the delivery of such other
Additional Collateral and the release of then-existing Additional Collateral; and
(ii) written evidence from the Provider that it has reviewed the proposed
Additional Collateral and finds the same to be acceptable.
Sectin 4.10. First Mortgage Bonds. (a) The Issuer agrees that if the Additional
Collateral or Credit Facility consists of First Mortgage Bonds, (i) such First Mortgage Bonds
shall be issued and delivered to, registered in the name of and held by the Trustee (or, subject to
Section 5.12 of the Indenture, the Trustee's nominee) for the benefit of the Owners from time to
time of the Bonds, and the Company shall make all payments of principal of and premium, if
any, and interest on such First Mortgage Bonds to the Trustee as the registered owner thereof;
(ii) the Indenture shall provide that the Trustee shall not sell, assign or transfer the First
Mortgage Bonds except to a successor trustee under the Indenture and shall surrender First
Mortgage Bonds to the Company Mortgage Trustee in accordance with the provisions of Section
4.09(d) and Section 4.l0(b) hereof; and (iii) the Company may take such actions as it shall deem
to be desirable to effect compliance with such restrctions on transfer, including the placing of an
appropriate legend on each First Mortgage Bond and the issuance of stop-transfer instructions to
the Company Mortgage Trustee or any other transfer agent under the Company Mortgage.
(b) If the Additional Collateral or the Credit Facility consists of First Mortgage Bonds
and any Bonds cease to be Outstanding (other than by reason of the payment of First Mortgage
Bonds or by reason of the payment of principal of or interest on the Bonds by the Provider and
other than those Bonds in lieu of or in exchange or substitution for which other Bonds shall have
ben authenticated and delivered), the Issuer shall cause the Trustee to surrender to the Company
Mortgage Trustee a corresponding principal amount of First Mortgage Bonds.
ARTICLE V
SPECIAL COVENANTS
Section 5.01. Maintenance of Existence; Conditons Under Which Exceptions
Permitted. The Company shall maintain in good stading its corporate existence as a
corpration organized under the laws of one of the states of the United States or the Distrct of
Columbia and wil remain duly qualified to do business in the State for so long as the Company
has an ownership interest in the Project, wil not dissolve or otherwise dispose of all or
substantially all of its assets and wil not consolidate with or merge into another corpration;
provided, however, that the Company may, without violating the foregoing, undertake from time
to time anyone or more of the following, if, prior to the effective date thereof, such action is
approved by all public utility commissions or similar entities that are required by law to approve
such action and there shall have been delivered to the Trustee a Favorable Opinion of Bond
Counsel with respect to the contemplated action:
(a) consolidate or merge with another corporation or sell or otherwise transfer
to another entity all or substantially all of its assets as an entirety, provided the resulting,
surviving or transferee entity, as the case may be, shall be (i) the Company or (ii) an
- 13 -Senes 2010B Loan Agreement
entity qualified to do business in the State as a foreign corpration or incorporated and
existing under the laws of the State which shall have assumed in wnting all of the
obligations of the Company hereunder, under the Credit Facility Agreement and with
respect to any Credit Facilty or any Additional Collateral and shall deliver to the Trustee
an opinion of counsel to the Company that such consolidation or merger complies with
the provisions of this Section 5.01; or
(b) convey all or substantially all of its assets to one or more wholly-owned
subsidiaries of the Company so long as the Company shall remain in existence and
primarily liable on all of its obligations hereunder and the subsidiary or subsidiaries to
which such assets shaH be so conveyed shall guarantee in writing the performance of all
of the Company's obligations hereunder, under the Credit Facility Agreement, under any
First Mortgage Bonds and, if applicable, under any Additional CollateraL.
Section 5.02. Permits or Licenses. In the event that it may be necessary for the proper
performance of this Agreemcnt on the par of the Company or the Issuer that any application or
applications for any permit or license to do or to perform certain things be made to any
governmcntal or other agency by the Company or the Issuer, the Company and the Issuer each
shaH, upon the request of either, execute such application or applications.
Section 5.03. Arbitrage Covenant. The Issuer, to the extent it has any control over
proceeds of the Bonds, and the Company covenant and represent to each other and to and for the
benefit of the Beneficial Owners that so long as any of the Bonds remain Outstanding, moneys
on deposit in any fund in connection with the Bonds, whether such moneys were derived from
the proceeds of the sale of the Bonds or from any other sources, wil not be used in a manner
which wil cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the
Code and any lawful regulations promulgated thereunder, as the same exist on this date or may
from time to time hereafter be amended, supplemented or reyised. The Company also covenants
for the benefit of the Beneficial Owners to comply with all of the provisions of the Tax
Certficate. The Company reserves the right, however, to make any investment of such moneys
permitted by State law, if, when and to the extent that said Section 148 or regulations
promulgated thereunder shall be repealed or relaxed or shall be held void by final judgment of a
court of competent jurisdiction, but only upon receipt of a Favorable Opinion of Bond Counsel
with respect to such investment.
Sectin 5.04. Financing Statements. The Company shall, to the extent required by law,
fie and record, refile and re-record, or cause to be fied and recorded, refied and re-recorded, all
documents or notices, including the financing statements and continuation statements, referred to
in Section 5.05 of the Indenture. The Issuer shall cooperate fuHy with the Company in taking
any such action. Concurrently with the execution and delivery of the Bonds, the Company shall
cause to be delivered to the Trustee the opinion of counsel required pursuant to Section 5.05(a)
of the Indenture.
Section 5.05. Covenants With Respect to Tax-Exempt Status of the Bonds. The
Company covenants for the benefit of the Owners of the Bonds and the Issuer that it (a) has not
taken, and wil not take or pennit to be taken on its behalf, any action which would adversely
- 14-Scncs 2010B Lon Agreement
affett the Tax-Exempt status of the Bonds and (b) wil take, or require to be taken, such actions
as may, from time to time, be required under applicable law or regulation to continue to cause
the Bonds to be Tax-Exempt.
Section 5.06. Indemnifcation of Issuer. (a) The Company agrees that the Issuer, its
elected or appointed offcials, officers, agents, servants and employees, shaH not be liable for,
and agrees that it wil at all times indemnify and hold free and harmless the Issuer, its elected or
appointed offcials, offcers, agents, servants and employees from and against, and pay all
expenses of the Issuer, its elected or appointed offcials, offcers, agents, servants and employees
relating to, (a) any lawsuit, proceeding or claim arising in connection with the Project or this
Agreement that results from any action taken by or on behalf of the Issuer, its elected or
appointed officials, officers, agents, servants and employees pursuant to or in accordance with
this Agreement or the Indenture that may be occasioned by any cause whatsoever, except the
negligence or wilful misconduct of the Issuer, its elected or appointed offcials, officers, agents,
servants or employees, or (b) any liabilty for any loss or damage to propert or any injury to or
death of any person that may be occasioned by any cause whatsoever pertining to the Project,
except the negligence or wilful misconduct of the Issuer, its elected or appointed offcials,
officers, agents, servants or employees. In case any action shall be brought against the Issuer in
respect of which indemnity may be sought against the Company, the Issuer shall promptly notify
the Company in writing and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Issuer and the payment of all expenses.
Failure by the Issuer to notify the Company shall not relieve the Company from any liabilty
which it may have to the Issuer otherwise than under this Section 5.06. The Issuer shall have the
right to employ separate counsel in any such action and partcipate in the defense thereof, such
counsel shall be paid by the Issuer unless the employment of such counsel has been authorized
by the Company. The Company shall not be liable for any settlement of any such action without
its consent, but if any such action is settled with the consent of the Company or if there be final
judgment for the plaintiff in any such action, the Company agrees to indemnify and hold free and
harmless the Issuer, its elected or appointed officials, offcers, agents, servants and employees
from and against any loss or liability by reason of such settlement or judgment. The Company
will reimburse the Issuer, its elected or appointed officials, offcers, agents, servants and
employees for any action taken pursuant to Section 5.03 of the Indenture.
(b) The obligations of the Company under this Section 5.06 shall survive the
termnation of this Agreement.
(c) It is the intention of the parties that the Issuer, its elected or appointed offcials,
offcers, agents, servants and employees shall not incur any pecuniary liability by reason of the
terms of this Agreement or the Indenture, or the undertakings required of the Issuer hereunder or
thereunder or by reason of the issuance of the Bonds, the execution of the Indenture or the
performance of any act required of the Issuer by this Agreement or the Indenture or requested of
the Issuer by the Company.
Section 5.07. Records of Company; Maintenance and Operation of the Project. (a) The
Trustee and the Issuer shall be permitted at all reasonable times during the term of this
Agreement to examine the books and records of the Company with respect to the Project;
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provided, however, that information and data contained in the books and records of the Company
shall be considered propnetary and shall not be voluntarily disclosed by the Trustee or the Issuer
except as required by law.
(b) The Company shall cause the Project to be maintained in good repair and shall
cause the Project to be insured in accordance with standard industry practice and shall pay all
costs thereof. All proceeds of such insurance shall be for the account of the Company.
(c) The Company shall be entitled to the proceeds of any condemnation award or
porton thereof made for damage to or taking of any of the Project or other propert of the
Company.
(d) Anything in this Agreement to the contrary notwithstanding, the Company shall
have the nght at any time to cause the operation of the Plant to be tenninated if the Company
shall have determined or concurred in a determination that the continued operation of the Plant is
uneconomical for any reason.
Section 5.08. Right of Access to the Project. The Company agrees that the Issuer, the
Trustee and their respective duly authonzed agents shall have the right, for so long as the
Company has an ownership interest in the Project and subject to such limitations, restnctions and
requirements as the Company may reasonably prescnbe for plant secunty and safety reasons and
in order to preserve secret processes and formulae, at all reasonable times to enter upon and to
examine and inspect the Project~ provided, however, nothing contained herein shall entitle the
Issuer or the Trustee to any information or inspection involving confidential matenal of the
Company. Information and data contained in the boks and records of the Company shall be
considered propnetary and shall not be voluntanly disclosed by the Issuer or the Trustee except
as required by law. In the event that the Company sells or otherwise transfers its interest in the
Project, the Company shall require the purchaser or transferee of the Company's interest in the
Project to agree that the Issuer. the Trustee and their respective duly authonzed agents shall have
the same nghts, and be subject to the same limitations, as are provided in this Section with
respect to the Project.
Sectin 5.09. Remarketing Agent. So long as any of the Bonds are subject to optional or
mandatory purchase pursuant to the provisions of the Indenture (except dunng a Term Interest
Rate Penod that extends to the matunty of the Bonds), the Company shall cause a Remarketing
Agent to be appointed and acting pursuant to a Remarketing Agreement at aU such times as shall
be necessary in order to provide for the remarketing of the Bonds and the establishment of
interest rates to be borne by the Bonds in accordance with the provisions of the Indenture.
Sectin 5.10. Covenant to Provid Ongoing Disclosure. The Company hereby covenants
and agrees that, the Company shall enter into a wntten undertking for the benefit of the holders
of the Bonds, as required by Section (b)(5)(i) of Secunties and Exchange Commission Rule
15c2-12 under the Securities Exchange Act of 1934, as amended (17 CFR Part 240, §24O.15c2-
12)(the "Rule").
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ARTICLE VI
ASSIGNMENT
Sectin 6.01. Conditions. With the consent of the Provider of any then-existing Credit
Facility, the Company's interest in this Agreement may be assigned in whole or in part by the
Company: (a) to another entity, subject, however, to the conditions that such assignment shall
not relieve (other than as described in Section 5.01 (a)(ii) hereof) the Company from primaryliabilty for its obligations to pay amounts due with respect to any Credit Facility or any
Additional Collateral or to make the Loan Payments or to make payments to the Trustee under
Section 4.02 hereof or for any other of its obligations hereunder, or (b) to an Affiiate in
connection with the conveyance of the Plant to such Affiiate, subject, however, to the conditions
that (i) such Affiliate is an entity described in Section 5.01 (a)(ii) hereof (in which case the
Company shall be relieved of all obligations hereunder and with respect to any Credit Facility or
any Additional Collateral); (ii) such conveyance is approved by any public utilty commissions
or similar entities that are required by law to approve such conveyance; and (iii) the Company
shall have delivered to the Trustee and the Provider (A) an opinion of counsel to the Company
that such assignment complies with the provisions of this Section 6.01 and (B) a Favorable
Opinion of Bond Counsel with respect to such assignment.
Sectin 6.02. Documents Furnished to Trustee. The Company shall, within 30 days
after the delivery thereof, furnish to the Issuer, the Provider and the Trustee a true and complete
copy of the agreements or other documents effectuating any assignment pursuant to Section 6.01
hereof. The Trustee's only duties with respect to any such agreement or other document so
furnished to it shall be to make the same available for examination by any Owner at the Prncipal
Office of the Trustee upon reasonable notice.
Sectin 6.03. Limitation. This Agreement shall not be assigned in whole or in part,
except as provided in this Artcle VI or in Section 4.03 or Section 5.01 hereof.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Sectin 7.01. Events of Default. Each of the following events shall constitute and is
referred to in this Agreement as an "Event of Default":
(a) a failure by the Company to make when due any Loan Payment or any
other payment required under Section 4.02 hereof or on any First Mortgage Bonds that
corresponds to the principal of or premium, jf any, or interest on the Bonds, which failure
shall have resulted in an "Event of Default" under Section 9.01 (a), Section 9.01(b) or
Section 9.01(c) of the Indenture;
(b) a failure by the Company to pay when due any amount required to be paid
under this Agreement or to observe and pedorm any other covenant, condition or
agreement on its part to be observed or pedonned under this Agreement (other than a
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failure described in Section 7.01(a) above), which failure shall continue for a period of 90
days (or such longer period as the Issuer and (if so directed by the Owners of a majority
in aggregate principal amount of the Bonds) the Trustee may agree to in writing) after
wntten notice, specifying such failure and requesting that it be remedied, shall have been
given to the Company by the Trustee or to the Company and the Trustee by the Issuer;
provided, however, that if such failure is other than for the payment of money and is of
such nature that it cannot be corrected within the applicable period, such failure shall not
constitute an "Event of Default" so long as the Company institutes corrective action
within the applicable period and such action is being diligently pursued which period
shall not be longer than 180 days from the date of the wntten default notice; or
(c) the dissolution or liquidation of the Company; or the fiing by the
Company of a voluntary petition in bankruptcy; or failure by the Company promptly to
lift or bond any execution, garnishment or attachment of such consequence as wil impair
its ability to make any payments under this Agreement or on any First Mortgage Bonds;
or the fiing of a petition or answer proposing the entr of an order for relief by a court of
competent jurisdiction against the Company under Title 1 i of the United States Code, as
the same may from time to time be hereafter amended, or proposing the reorganization,
arrangement or debt readjustment of the Company under the provisions of any
bankruptcy act or under any similar act which may be hereafter enacted and the failure of
said petition or answer to be discharged or denied within ninety (90) days after the fiing
thereof or the entr of an order for relief by a court of competent jurisdiction in any
proeeding for its liquidation or reorganization under the provisions of any bankruptcy
act or under any similar act which may be hereafter enacted; or an assignment by the
Company for the benefit of its creditors; or the entr by the Company into an agreement
of composition with its creditors (the term "dissolution or liquidation of the Company,"
as used in this subsection (c), shall not be construed to include the cessation of the
corporate existence of the Company resulting either from a merger or consolidation of the
Company into or with another corporation or a dissolution or liquidation of the Company
following a trnsfer of all or substantially all its assets as an entirety, under the conditions
permittng such actions contained in Section 5.01 hereto.
Sectin 7.02. Force Majeure. The provisions of Section 7.0l(b) hereof are subject to the
following limitations: if by reason of acts of God; strikes, lockouts or other industrial
disturbances; acts of public enemies; orders of any kind of the government of the United States
or the State, or any deparment, agency, political subdivision, court or official of any of such
State or any other state which asserts regulatory jurisdiction over the Company; orders of any
kind of civil or military authority; insurrections; riots; epidemics; landslides; lightning;
earthquakes; volcanoes; fires; hurricanes; tornadoes; storms; floods; washouts; droughts; arrests;
restraint of government and people; civil disturbances; explosions; breakage or accident to
machinery; partial or entire failure of utilities; or any cause or event not reasonably within the
control of the Company, the Company is unable in whole or in part to carr out anyone or more
of its agreements or obligations contained herein, other than its obligations under Section 4.01,
Section 4.02, Section 4.04, Section 4.05, Section 4.06, Section 5.01 and Section 5.06 hereof and
on with respect to any Credit Facilty or any Additional Collateral, the Company shaH not be
deemed in default by reason of not carrying out said agreement or agreements or pedormng said
- IS -Senes 2010B Lon Agreement
obligation or obligations dunng the continuance of such inability. The Company shall make
reasonable effort to remedy with all reasonable dispatch the cause or causes preventing it from
carring out its agreements, provided that the settlement of strikes, lockouts and other industral
disturbances shall be entirely within the discretion of the Company, and the Company shall not
be required to make settlement of stnkes, lockouts and other industrial disturbances by acceding
to the demands of the opposing part or parties when such course is in the judgment of the
Company unfavorable to the Company except to the extent the Company's abilty to pay when
due any amount due on with respect to any Credit Facility or any Additional ColJateral wil be
jeopardized by the Company's failure to make such a settlement.
Section 7.03. Remedies. (a) Upon the occurrence and continuance of any Event of
Default descnbed in Section 7.01 (a) or Section 7.01(c) hereof, and further upon the condition
that, in accordance with the terms of the Indenture, the Bonds shall have been declared to be
immediately due and payable pursuant to any provision of the Indenture, the Loan Payments
shall without further action, become and be immediately due and payable.
(b) Any waiver of any "Event of Default" under the Indenture and a rescission and
annulment of its consequences shall constitute a waiver of the corresponding Event or Events of
Default under this Agreement and a rescission and annulment of the consequences thereof.
(c) Upon the occurrence and continuance of any Event of Default, the Issuer may take
any action at law or in equity to collect any payments then due and thereafter to become due
hereunder or to seek injunctive relief or specific pedormance of any obligation, agreement or
covenant of the Company hereunder and under with respect to any Credit Facilty or any
Additional Collateral.
(d) Any amounts collected from the Company pursuant to this Section 7.03 shall be
applied in accordance with the Indenture. No action taken pursuant to this Section 7.03 shall
relieve the Company from the Company's obligations pursuant to Section 4.01 or Section 4.02
hereof.
Sectin 7.04. No Remedy Exclusive. No remedy conferred upon or reserved to the Issuer
hereby is intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given hereunder
or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise
any nght or power accruing upon any Event of Default shall impair any such nght or power or
shall be construed to be a waiver thereof, but any such right or power may be exercised from
time to time and as often as may be deemed expedient. In order to entitle the Issuer to exercise
any remedy reserved to it in this Article VII, it shall not be necessary to give any notice, other
than such notice as may be herein expressly required.
Section 7.05. Reimbursement of Attorneys? Fees. If the Company shall default under
any of the provisions hereof and the Issuer or the Trustee shall employ attorneys or incur other
reasonable and proper expenses for the collection of payments due hereunder or on any First
Mortgage Bonds or for the enforcement of pedormance or observance of any obligation or
agreement on the part of the Company contained herein, the Company wìl on demand therefor
- 19-Scncs 20 lOB Lo Agreemenl
reimburse the Issuer or the Trustee, as the case may be, for the reasonable and proper fees of
such attorneys and such other reasonable and proper expenses so incurred.
Section 7.06. Waiver of Breach. In the event any obligation created hereby shall be
breached by either of the parties hereto and such breach shall thereafter be waived by the other
party, such waiver shall be limited to the partcular breach so waived and shall not be deemed to
waive any other breach hereunder. In view of the assignment of certain of the Issuer's rights and
interest hereunder to the Trustee, the Issuer shall have no power to waive any Event of Default
hereunder by the Company in respect of such nghts and interest without the consent of the
Trustee, and the Trustee may exercise any of the rights ofthe Issuer hereunder.
ARTICLE VIII
PURCHASE OR REDEMPTON OF BONDS
Section 8.01. Redemption of Bonds. The Issuer shall take or cause to be taken the
actions required by the Indenture (other than the payment of money) to discharge the lien thereof
through the redemption, or provision for payment or redemption, of all Bonds then Outstanding,
or to effect the redemption, or provision for payment or redemption, of less than all the Bonds
then Outstanding, upon receipt by the Issuer and the Trustee from an Authorized Company
Representative of a written notice designating the principal amount of the Bonds to be redeemed
and specifying the date of redemption (which, unless waived by the Issuer and the Trustee, shall
not be less than 30 days from the date such notice is given, or such shorter period as the Trustee
and the Company may agree from time to time) and the applicable redemption provision of the
Indenture. Unless otherwise stated therein and except with respect to a redemption under
Section 4.03 of the Indenture, such notice shall be revocable by the Company at any time prior to
the time at which the Bonds to be redeemed, or for the payment or redemption of which
provision is to be made, are first deemed to be paid in accordance with Article VII of the
Indenture. The Company shall furnish any moneys required by the Indenture to be deposited
with the Trustee or otherwise paid by the Issuer in connection with any of the foregoing
purposes. In connection with any redemption of the Bonds, the Company shall provide to the
Trustee the names and addresses of the Securities Depositories and Information Services as
contemplated by Section 4.05 of the Indenture. The Company shall furnish the Provider with a
copy of any notice given pursuant to this Section.
Sectin 8.02. Purchase of Bonds. The Company may at any time, and from time to time,
furnish moneys to the Trustee accompanied by a notice directing such moneys to be applied to
the purchase of Bonds in accordance with the provisions of the Indenture delivered pursuant to
the Indenture, which Bonds shall, at the direction of the Company, be delivered in accordance
with Section 3.06a)(ii) of the Indenture.
Section 8.03. Obligation to Prepay. (a) The Company shall be obligated to prepay in
whole or in part the amounts payable hereunder upon a Determnation of Taxabilty (as defined
below) giving rise to a mandatory redemption of the Bonds pursuant to Section 4.03 of the
Indenture, by paying an amount equal to, when added to other funds on deposit in the Bond
- 20-Senes 201 OB Lon Agreement
Fund, the aggregate pnncipal amount of the Bonds to be redeemed pursuant to the Indenture plus
accrued interest to the redemption date.
(b) The Company shall cause a mandatory redemption to occur within 180 days after a
Determination of Taxability (as defined below) shall have occurred. A "Determination of
Taxabilty" shaH be deemed to have occurred if, as a result of the failure of the Company to
observe any covenant, agreement or representation in this Agreement, a final decree or judgment
of any federal court or a final action of the Internal Revenue Service determines that interest paid
or payable on any Bond is or was includible in the gross income of an Owner of the Bonds for
federal income tax purposes under the Code (other than an Owner who is a "substantial user" or
"related person" within the meaning of Section 103(b)(13) of the 1954 Code). However, no
such decree or action wil be considered final for this purpse unless the Company has been
given wntten notice of the same, either directly or in the name of any Owner of a Bond, and, if it
so desires and is legally allowed, has been afforded the opportunity to contest the same, either
directly or in the name of any Owner of a Bond, and until conclusion of any appelJate review, if
sought. If the Trustee receives wntten notice from any Owner of a Bond stating (a) that the
Owner has ben notified in writing by the Internal Revenue Service that it proposes to include
the interest on any Bond in the gross income of such Owner for the reasons descnbed therein or
any other proceeding has been instituted against such Owner which may lead to a final decree or
action as descnbed herein, and (b) that such Owner wil afford the Company the opportunity to
contest the same, either directly or in the name of the Owner, until a conclusion of any appellate
review, if sought, then the Trustee shall promptly give notice thereof to the Company, the Issuer,
the Provider and the Owner of each Bond then Outstanding. If a final decree or action as
descnbed above thereafter occurs and the Trustee has received wntten notice thereof as provided
in Section 8.01 hereof at least 45 days prior to the redemption date, the Trustee shall request
prepayment from the Company of the amounts payable hereunder and give notice of the
redemption of the Bonds at the earliest practical date, but not later than the date specified in this
Artcle, and in the manner provided by Section 4.05 of the Indenture.
At the time of any such prepayment of the amounts payable hereunder pursuant to this
Section, the prepayment amount shall be applied, together with other moneys available in the
Bond Fund, to the redemption of the Bonds on the date specified in the notice as provided in the
Indenture, whether or not such date is an Interest Payment Date, to the Trustee's fees and
expenses under the Indenture accrued to such redemption of the Bonds, and to all sums due to
the Issuer under this Agreement.
Whenever the Company shall have given any notice of prepayment of the amounts
payable hereunder pursuant to this Article VII, which includes a notice for redemption of the
Bonds pursuant to the Indenture, all amounts payable under the first paragraph of this
Section 8.03 shall become due and payable on the date fixed for redemption of such Bonds.
Section 8.04. Compliance With Indenture. Anything in this Agreement to the contrary
notwithstanding, the Issuer and the Company shall take all actions required by this Agreement
and the Indenture in order to comply with the provisions of Articles II and IV of the Indenture.
- 21 -Series 20108 Lo Agreement
ARTICLE IX
MISCELLANEOUS
Section 9.01. Term of Agreement. This Agreement shall remain in full force and effect
from the date of delivery hereof until the right, title and interest of the Trustee in and to the Trust
Estate shall have ceased, terminated and become void in accordance with Article VII of the
Indenture and until all payments required under this Agreement shall have been made. The date
first above written shall be for identification purposes only and shall not be construed to imply
that this Agreement was executed on such date.
Section 9.02. Notices. Except as otherwise provided in this Agreement, all notices,
certificates, requests, requisitions and other communications hereunder shall be in writing and
shall be suffciently given and shall be deemed given when mailed by MaiJ or by certfied or
registered mail postage prepaid, or by overnight delivery service, addressed as follows (and, if by
overnight delivery service and required by the chosen delivery service, with then-current
telephone number of the addressee): if to the Issuer, at City Hall, Forsyth, Montana 59327,
Attention: Mayor; if to the Company, at 1411 East Mission Avenue, Spokane, Washington
99220, Attention: Treasurer; if to the Trustee, at such address as shall be designated by it in or
pursuant to the Indenture; if to the Provider of the Credit Facility, at such address as shall be
designated by it in or pursuant to the Indenture; and if to the Remarketing Agent, at such address
as shall be designated by such part pursuant to the Remarketing Agreement. A copy of each
notice, certificate, request or other communication given hereunder to the Issuer, the Company,
the Trustee, the Provider and the Remarketing Agent shall also be given to the others. Any of
the foregoing parties may, by notice given hereunder, designate any further or different addresses
to which subsequent notices, certificates, requests or other communications shall be sent.
Section 9.03. Parties in Interest; Reference to First Mortgage Bonds, Other Additinal
Collateral, Credit Faâlity, Etc. (a) This Agreement shall inure to the benefit of and shall be
binding upon the Issuer, the Company and their respective successors and assigns, and no other
person, firm or corpmtion shall have any right, remedy or claim under or by reason of this
Agreement except for rights of payment and indemnification hereunder of the Trustee and the
Registrar. Section 9.05 hereof to the contrary notwithstanding, for purpses of perfecting a
security interest in this Agreement by the Trustee, only the counterpart delivered, pledged and
assigned to the Trustee shall be deemed the original. No security interest in this Agreement may
be created by the trnsfer of any counterpart thereof other than the original counterpart delivered,
pledged and assigned to the Trustee.
(b) At any time when the Company's obligation under Section 4.01 hereof to repay the
loan made to it pursuant to Section 3.03 hereof is not secured by First Mortgage Bonds or other
Additional Collateral, references to First Mortgage Bonds, the Company Mortgage, the Company
Mortgage Trustee or Additional Collateral shall be ineffective.
(c) At any time a Credit Facility is not in effect, references to the Provider herein shall
be of no effect, except with respect to amounts payable to the Provider which have not been paid.
If such amounts have not been paid, the Provider shall be entitled to all notices hereunder. If an
- 22-Series 20108 Lon Agrement
"Event of Default" shall have occurred under the Indenture due to failure by the Provider to
honor its obligations pursuant to the Credit Facility, so long as such failure continues any
reference herein to the Provider shall be void and of no effect to the extent that the reference may
be construed to include such Provider.
Sectin 9.04. Amendments. This Agreement may be amended only by written agreement
of the Company and the Issuer and with the written consent of the Trustee in accordance with the
provisions of Section 12.05 or 12.06 of the Indenture, as applicable; provided, however, that
Exhibit A to this Agreement may be amended upon compliance only with the requirements of
Section 3.04 hereof.
Sectin 9.05. Counterparis. This Agreement may be executed in any number of
counterpart, each of which, when so executed and delivered, shall be an original (except as
expressly provided in Section 9.03 hereof), and such counterpart shall together constitute but
one and the same Agreement.
Section 9.06. Severability. If any clause, provision or Section of this Agreement shall, for
any reason, be held invalid or unenforceable by any court of competent jurisdiction, such holdingshall not invalidate or render unenforceable any other provision hereof.
Sectin 9.07. Governing Law. This Agreement shan be governed exclusively by and
construed in accordance with the laws of the State.
(Signature page follows.)
- 23-Series 2010B Lon Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
CIT OF FORSYTH, MONTANA
By:
ISEAL)
ArrEST:
By: h. JCity Clerk-Treasurer
A VIST A CORPORATION
By:
V ice President and Treasurer
- 24-Series 2010B Lon Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
CITY OF FORSYTH, MONTANA
By:
Mayor
(SEAL)
ArrEST:
By:
City Clerk-Treasurer
AVISTA CORPORATION
By:vl~d~l~
- 24 - Series 20 I 08 Loan Agreement
EXHIBIT A
PROJECT DESCRIION
1. POLLUTION CONTROL EQUIPMENT
SCRUBBER SYSTEM
The air pollution control facilties employed on Units #3 and #4 consist of a complete
scrubber system, including duct work, plenums, scrubber vessels, reheaters and induced draft
fans, together with infrastructures, monitoring and electrical controls and instrumentation
therefore, for the purpose of removing the sulfur dioxide (S02) and particulate matter from the
flue gas. The scrubber system also includes a scrubber maintenance facilty, including a machine
shop and laboratory dedicated to the scrubber system and an environmental monitonng
laboratory for the pollution control facilities. The scrubber system utilizes the Wet Ventun
Principle and consists of eight modules for each unit through which the steam generator gases
from the burned coal must pass.
The gases in the scrubber are contacted with finely atomized scrubber slurry. Within the
stated perfonnance of the system, fly ash partculates are removed by the slurry droplets. The
sulfur dioxide reacts with the alkali contained in the slurr which results from the mixing of
water, fly ash particulates, hydrated high calcium lime and hydrated dolomitic lime. A major
portion of the sulfur dioxide is converted to solid sulfate compounds which are retained in the
scrubber liquid and can, therefore, be piped to and deposited in an ash pond together with the
particulate.
Mter the flue gas passes through the venturi section, absorption sprays and wash trays, it
is processed through a demister which removes any entrained slurr and is then reheated and
discharged through the stack.
The slurr system in the Units #3 and #4 scrubber system consists of recycle tanks,
regenerators, agitators, pumps and pipelines. The slurr from the Units #3 and #4 scrubber
system is transported to an effluent holding pond and involves the use of effluent holding tanks,
agitators, pumps and pipelines. A separate wash tray pond system is used to store the suspended
solids collected from the wash tray system. Reclaimed water from the clear water section of
these ponds is circulated back to the scrubber system.
LIME STORAGE
The sole purpse of the lime system is to supply the lie slurry requirements of the
scrubber regeneration system. There is one lime system that serves the sixteen scrubbers for
Units #3 and #4. Major components of the system include four slakers, in which calcined high
calcium lime is reacted with water to produce a hydrated lime slurry, slurr transfer tanks, where
the slurr is diluted with water and mixed with dry hydrated dolomitic lime, slurry feed storage
A-I Series 200 Lo Agrement
tanks, where the slurr wil be held for use by the regenerators as needed, hydrators, for mixing
calcined dolomitic lime with water, and agitators.
SCRUBBER SLUDGE DISPOSAL
Effluent slurr is pumped from the plant to the sludge disposal pond located
approximately three miles southeast of the plant. The suspended solids settle to the pond bottom
and the clear water is pumped back to the plant.
There are two phases in the development of this pond. The first phase requires the
construction of one dam 108 feet high and 1,100 feet in length. A saddle dam must also be
added. The saddle dam wil vary in height with a maximum height for this phase of 36 feet and
be approximately 2,800 feet in lengt. The capacity of Phase i wìl be 6,650 acre-feet and it wil
last approximately 10 years.
The development of the second phase wil require that the onginal dam be raised to 138
feet in height and increased to a length of 2,500 feet. The saddle dam wil be raised to a
maximum height of 66 feet and a total lengt of 3,500 feet. The capacity of the second phase
wil be an additional 7,00 acre-feet and it wil last approximately 12 years, for a total life of 22
years. The construction of the second phase is not included in cost reported at this time.
The sludge disposal pond design takes into account a permit requirement for minimum
seepage, by providing low permeabilty plastic concrete filled trenches around the penphery of
the pond constructed during the course of Phase 1 work.
COAL DUST CONTROL SYSTEM
The coal dust control system is designed to collect, store and treat coal dust resulting
from mining, crushing, handling and storing coal in the course of normal Units #3 and #4
operations. To control coal dust air pollution the points where coal is transferred between
conveyors or placed in coal piles have been enclosed. The coal transfer stations between
conveyors are enclosed with steel framed strctures with metal siding. The structures are
equipped with vacuum filtration systems, consisting of ducts, blowers, dust removal filters and
associated equipment, to remove coal dust from exhaust air from the structures, and are also
equipped with mechanical dust collectors. The main line 45,00 ton coal storage pile is enclosed
with a 340' long A-frame precast panel concrete structure designed to contain coal dust, thereby
allowing its removal and treatment.
COOLING TOWER DRIFT CONTAINMENT CONTROL FACILIT
Operation of the cooling towers produces exhaust air emissions containing circulating
water, particulates and other pollutants generally known as cooling tower drift. To control
release of these air pollutants, the cooling towers are provided with high effciency drift
eliminators, located at the top of the cooling tower strctures, which remove drift from the
cooling tower exhaust air.
A-2 Series 2010B Loan Agrenint
2. SOLID WASTE DISPOSAL
BOTTOM ASH DISPOSAL
The function of the bottom ash disposal system is to remove accumulations of furnace
bottom ash, pulverizer pyrites, economizer ash, and air preheater fly ash by means of a water-ash
slurr to a disposal pond located approximately 2,00 feet southeast of the plant site. The system
consists generally of three sets of fly ash hoppers, (economizer. air heater, and flue gas duct
hoppers) pynte hoppers, the bottom ash hopper, and 18,00 gallon transfer tank, a settling pond,
a clear water pond and vanous pumps, and pipelines.
Clinker grinders are used to grind the bottom ash which is then mixed with water and
sluiced to the ash transfer tank.
The economizer ash collected in economizer hoppers falls by gravity to the ash transfer
tank.
The pyrites are collected in local tanks and sluiced to the ash transfer tank.
Ash collected in the flue gas duct hoppers and air preheater hoppers is sluiced to the ash
transfer tank.
These ashes are pumped from the ash transfer tank to the bottom ash pond. Reclaimed
water is returned from the bottom ash disposal pond and redistributed to the various sections of
the bottom ash disposal system.
The solid waste disposal facilities for purpses of the issuance of the Bonds include only
so much of the bottom ash disposal system as is external to the plant building and include piping
from the building to the settling pond, the pond itself, return water pumps and lines, a clear water
pond and piping back to the plant building.
3 . WATER POLLUTION CONTROL
NORTH PlNT SEDIMENT POND
The nort plant sediment pond is designed to collect and store the storm runoff from the
general north plant area. These waters are retained in the pond, allowing natural evaporation to
desiccate the pond. This prevents high quantities of suspended solids from being discharged to
Armells Creek or other state suiface waters.
NORTH PlNT AREA DRAINAGE SYSTEM
The north plant area drainage system is designed to collect and store storm runoff from
the water treatment building. fuel oil handling area and the cooling tower area in the north plant
area drain pond. The pond also serves as a storage facility for one cooling tower basin drain.
A-3 Series 20108 Lon Agreement
cooling tower overfow, water treatment fiter backwash, and for the cooling tower blowdown
water not used in the flue gas scrubbing process. These waters are potentially contaminated with
oil and high suspended and dissolved solids, and this system stores these discharges preventing
any discharge to Armells Creek or other state surface waters. The north plant area drainage
system consists of collection basins, piping, concrete culverts, yard drains, manholes and special
yard gradings (berms) which route these discharges to the nort plant area sump and north plant
area drain pond. The north plant area drain pond incorporates a hypalon liner to comply with a
permit requirement for minimum seepage. The oil separator section of the sump receives oily
surface collection drains. The oil and water are separated. The oil from the sump is then trucked
away for disposal.
The water discharges are either pumped to the scrubber effuent holding pond via a 6"
diameter pipeline, 19,00 feet in length for evaporation, to the circulating water system, or the
plant oily waste sump as appropriate. Each discharge arrangement has its own set of sump
pumps. The pumps and piping system which discharge to the plant oily waste sump are not
included in the costs covered by this Report, nor is the circulating water system. The waters
recovered are excess to any plant requirements and recovery of the waters does not provide any
economic benefit to the plant.
CHEMICAL AND OILY WASTE SYSTEM
The chemical and oily waste system is designed to collect, store, treat and dispose of
chemical and oily wastes resulting from the normal operation of Units #3 and #4. This system
consists of drains and pipes, oil separators, chemical waste sumps, chemical waste neutralizing
tanks, neutralizing chemical storage tanks, chemical inspection equipment, and associated
mechanical and electrical control equipment.
The chemical waste drainage system includes drains and neutralization tanks for
collection and tratment of chemical waste Chemical waste drains are located throughout
Units #3 and #4, and are used to collect and transfer chemical waste to holding sumps and
neutralization tanks. The neutralization equipment includes chemical storage and injection
equipment as well as controls and instrumentation.
The oily waste drainage system is made up of a network of drains which collect oily
waste from throughout Units #3 and #4, and dispose of the wastes in the Units #3 and #4 main
water-oil sump. Oil separation chambers in the sump allow for oil removaL. The treated water is
monitored for trace oil levels and released. After separation, the waste oil is removed by a
contractor to an offsite disposal area.
COOLING TOWER BLOWDOWN SYSTEM
The cooling tower blow down system consists of a 6" pipeline from the cooling tower tothe waste disposal pond where the blowdown is treated by settlement and evaporation in
accordance with water pollution control requirements.
A-4 Series 20lOB Loan Agreement
GROUNDWATER MONITORING WELLS
Groundwater monitoring wells have been installed around the various ponds associated
with the plant operation. These ponds include the scrubber effluent holding pond, the scrubber
drain pond, the scrubber wash tray pond, the bottom ash pond, and the nort plant area effuent
pond. These groundwater monitonng wells provide the ability through sampling to detect and
quantify accidental discharges from the above mentioned plant storage and waste ponds. This is
necessary to show compliance with State Groundwater Standards and with permt requirements
for minimum seepage.
A-5 Series 20IOB Lon Agreement
REC \!
2011 JAN - 5 AH10: 06
LOAN AGREEMENT
BETWEEN
CITY OF FORSYTH , MONTANA
AND
AVISTA CORPORATION
$6,700,00
CITY OF FORSYTH, MONTANA
POLLUTION CONTROL REENUE REFUNDING BONDS
(A VISTA CORPORATION COLSTRIP PROJECf)
SERIES 2010A
DATED AS OF DECEMBER 1,2010
The amounts payable to the Issuer and certin other rights of the Issuer under this Loan
Agreement (except for amounts payable to, and certain rights of, the Issuer under Section 4.04,
Section 4.06a), Section 5.03, Section 5.06, Section 5.07, Section 5.08 and Section 7.05 hereof
and any nghts of the Issuer to receive notices, certificates, requests, requisitions, directions and
other communications hereunder) and the rights of the Issuer to any Credit Facilty and any
Additional Collateral therefor that may be delivered by the Company in accordance with Section
4.09 hereof, have been pledged and assigned to The Bank of New York Mellon Trust Company,
NA., as Trustee under the Trust Indenture, dated as of December 1,2010, and prior to an Event
of Default, the Issuer's right to give approvals and consents hereunder, from the Issuer. For the
purpse of perfecting the security interest of such Trustee in such amounts payable and such
rights assigned to such Trustee under the Montana Uniform Commercial Code - Secured
Transactions, the counterpart of this Loan Agreement actually delivered to the Trustee shall be
deemed the original thereof.
2912621.OJ.05.doc
87026( !RB/mo Series 2OIOA Loan Agreement
LOAN AGREEMENT
BETWEEN
CITY OF FORSYTH, MONTANA
AND
A VISTA CORPORATION
$66,700,000
CITY OF FORSYTH, MONTANA
POLLUTION CONTROL REVENUE RENDING BONDS
(A VISTA CORPORATION COLSTRIP PROJECT)
SERIES 20 lOA
DATED AS OF DECEMBER 1,2010
The amounts payable to the Issuer and certin other rights of the Issuer under this Loan
Agreement (except for amounts payable to, and certin rights of, the Issuer under Section 4.04,
Section 4.06(a), Section 5.03, Section 5.06, Section 5.07, Section 5.08 and Section 7.05 hereof
and any rights of the Issuer to receive notices, certificates, requests, requisitions, directions and
other communications hereunder) and the rights of the Issuer to any Credit Facility and any
Additional Collateral therefor that may be delivered by the Company in accordance with Section
4.09 hereof, have been pledged and assigned to The Bank of New York Mellon Trust Company,
N.A., as Trustee under the Trust Indenture, dated as of December 1, 2010, as amended and
restated, from the Issuer. For the purpose of perfecting the security interest of such Trustee in
such amounts payable and such rights assigned to such Trustee under the Montana Uniform
Commercial Code - Secured Transactions, the counterpar of this Loan Agreement actually
delivered to the Trustee shall be deemed the original thereof.
This counterpart of the Loan Agreement has been actually delivered to the Trustee and
the Trustee acknowledges receipt thereof.
THE BANK OF NEW YORK MELLON TRUSTCOpmY'N~re
Authorized Offcer
Senes 20 lOA Loan Agreement
TABLE OF CONTENTS
SECTION
PAGE
Recitals.............................................................................................................................................1
ARTICLE I DEFINITIONS ................................................................................................................2
ARTICLE II REPREENTATIONS, WARRANTIES AND AGREEMENTS............................................2
Section 2.01. Representations, Warranties and Agreements of Issuer ................................2
Section 2.02. Representations, Warranties and Agreements of Company ..........................4
ARTICLE II ISSUANCE OF THE BONDS; THE LOAN; DISPOSITION OF PROCEEDS OF
THE BONDS; THE PROJECT ...........................................................................7
Section 3.01. Issuance of Bonds ..........................................................................................7
Section 3.02. Issuance of Other Obligations........................................................................7
Section 3.03. The Loan; Disposition of Bond Proceeds and Certin Other
Moneys...................................................................................................7
Section 3.04. Changes to Project .........................................................................................7
ARTICLE IV LOAN PAYMENTS; PAYMENTS TO REMARKEING AGENT AND
TRUSTEE; OTHER OBLIGATIONS .................................................................8
Section 4.01. Loan Payments...............................................................................................8
Section 4.02. Payments of Purchase Price ...........................................................................8
Section 4.03. Payments Assigned; Obligation Absolute .....................................................9
Section 4.04. Payment of Expenses .....................................................................................9
Section 4.05. Indemnification ..............................................................................................9
Section 4.06. Payment of Taxes and Charges in Lieu Thereof..........................................10
Section 4.07. Credit Facility ..............................................................................................1 1
Section 4.08. Compliance With Prior Agreement .............................................................1 1
Section 4.09. Delivery of Additional Collateral ................................................................12
Section 4.10. First Mortgage Bonds ..................................................................................13
ARTICLE V SPECIAL COVENANfS ..............................................................................................13
Section 5.01. Maintenance of Existence; Conditions Under Which
Exceptions Permitted ...........................................................................13
Section 5.02. Permits or Licenses ......................................................................................14
Section 5.03. Arbitrage Covenant......................................................................................14
Section 5.04. Financing Statements ...................................................................................14
Section 5.05. Covenants With Respect to Tax-Exempt Status of the Bonds.....................J4Section 5.06. Indemnification of Issuer .............................................................................15
Section 5.07. Records of Company; Maintenance and Operation of the
Project ..................................................................................................15
Section 5.08. Right of Access to the Project.....................................................................16
- I -Series 2010A Lon Agreement
SECTION PAGE
Section 5.09. Remarketing Agent ......................................................................................16
Section 5.10. Covenant to Provide Ongoing Disclosure....................................................16
ARTICLE VI ASSIGNMENT............ ................... ............ ................ ..... ........ ............ .......... ........... ..17
Section 6.01. Conditions....................................................................................................17
Section 6.02. Documents Furnished to Trustee .................................................................17
Section 6.03. Limitation.....................................................................................................17
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES ..................................................................17
Section 7.0 i . Events of Default .......................................... ............................. ........ .......... 1 7
Section 7.02. Force Majeure ..............................................................................................1 8
Section 7.03. Remedies......................................................................................................19
Section 7.04. No Remedy Exclusive..................................................................................1 9
Section 7.05. Reimbursement of Attorneys' Fees .............................................................19
Section 7.06. Waiver of Breach .........................................................................................20
ARTICLE VlI PuRCHASE OR REDEMPTION Of BONDS ... ................ ............. ......... ........... ........ ..20
Section 8.01. Redemption of Bonds ..........................................................................,.......20
Section 8.02. Purchase of Bonds........................................................................................20
Section 8.03. Obligation to Prepay ....................................................................................20
Section 8.04. Compliance With Indenture.........................................................................21
ARTICLE IX MISCELLANEOUS. .... .......... ............ ....... ..... .......... ....... ........ ........... ............. ... ........ .22
Section 9.01. Term of Agreement.....................................................................................22
Section 9.02. Notices .........................................................................................................22
Section 9.03. Parties in Interest~ Reference to First Mortgage Bonds, Other
Additional Collateral, Credit Facility, Etc. ..........................................22
Section 9.04. Amendments ................................................................................................23
Section 9.05. Counterparts .................................................................................................23
Section 9.06. Severability ..................................................................................................23
Section 9.07. Governing Law.... ...... ...... ........ ....... ...... .... .......... .......... ... ....... ............. ........23
Signatures.......................................................................................................................................24
EXHIBIT A Project Description
- ii -Senes 20lOA Lo Agreement
LOAN AGREEMENT
This LOAN AGREEMENT, dated as of December i, 2010, between the Issuer (as defined
below) and the Company (as defined below), is between the CITY OF FORSYTH, MONTANA, a
political subdivision duly organized and existing under the Constitution and laws of the State
(the "Issuer"), and AVISTA CORPORATION, a corpration duly organized under the Jaws of the
State of Washington and duly qualified to conduct business in the State (the "Company").
RECITALS:
A. The Issuer is authorized by the provisions of the Act to issue one or more series of
its revenue bonds to finance all or part of the cost of projects consisting of exempt facilities (as
such term is used in the Code) located within the terrtorial limits ofthe Issuer.
B. The Act provides that payment of the principal of and interest on revenue bonds
issued thereunder shall be secured by a pledge of the revenues out of which such revenue bonds
shall be payable and may be secured by a pledge of an agreement relating to a project.
C. The Issuer has previously issued the Pror Bonds on behalf of the Company for the
purpose of refinancing a portion of the costs of acquiring and improving the Project.
D. The Issuer is authorized by the Act to issue its revenue refunding bonds to refund
the Pror Bonds.
E. By proper action of its governing boy taken pursuant to and in accordance with the
provisions of the Act, the Issuer has authorized and undertaken to issue its Pollution Control
Revenue Refunding Bonds (A vista Corpration Colstrip Project) Series 2010A and the issuance
of the Bonds to refund the Prior Bonds is authorized by the provisions of the Act.
F. The issuance of the Bonds to refund the Pror Bonds wil provide financing on more
advantageous terms for the cost of the Project financed by the Pror Bonds.
G. The Bonds shall be issued under and pursuant to the Trust Indenture, dated as of
December i, 2010, between the Issuer and The Bank of New York Mellon Trust Company,
NA., as Trustee, pursuant to which the Issuer shall pledge and assign to the Trustee certain
rights of the Issuer hereunder.
H. Pursuant to this Agreement, the Issuer wil loan the proceeds of the Bonds to the
Company to provide financing for the Project, and the Company agrees to make, or cause to be
made, payments suffcient to pay when due (whether at stated maturity, by acceleration or
otherwise) the principal of and premium, if any, and interest on the Bonds.
i. The Company agrees under this Agreement to pay, or cause to be paid, when due,
the purchase price of Bonds purchased pursuant to the terms of the Indenture.
Series 2010 Lon Agrement
J. The issuance, sale and delivery of the Bonds and the execution and delivery of this
Agreement and the Indenture have been in all respects duly and validly authorized in accordance
with the Act and the Bond Resolution.
K. The Company may provide Additional Collateral as provided herein and in the
Trust Indenture.
In consideration of the respective representations and agreements contained in this
Agreement, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
All words and terms used but not otherwise defined in this Agreement, shall for all
purposes of this Agreement have the meanings specified in Article I of the Indenture, unless the
context clearly requires otherwise. In addition, the following words and terms shall have the
following meanings when used in this Agreement:
"Affliate" means any entity controllng, controlled by or under common control with the
Company.
"Indenture" means the Trust Indenture, dated as of December i, 2010, between the
Issuer and the Trustee, relating to the issuance of the Bonds as such Trust Indenture may be
supplemented and amended from time to time as therein permitted.
The words "hereto," "hereunder" and other words of similar import refer to this
Agreement as a whole.
ARTICLE II
REPRESENTATIONS, WARRNTIES AND AGREEMENTS
Section 2.01. Representations, Warranties and Agreements of 1ssuer. The Issuer
represents, warrants and agrees that:
(a) The Issuer is a political subdivision of the State, duly organized and
validly existing under the Constitution and laws of the State.
(b) Under the Act, the Issuer has the power to enter into the transactions
contemplated by this Agreement and the Indenture and to carr out its obligations
hereunder and thereunder, including the issuance and sale of the Bonds. By proper action
of its governing body, the Issuer has been duly authorized to execute, deliver and duly
perform this Agreement and the Indenture and to issue and sell the Bonds and has made
all determinations and findings as and where required by Section 90-5-106 of the Act.
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(c) The aggregate pnncipal amount of the Bonds authorized to be issued
under the Indenture for the purpose of refunding the Pror Bonds does not exceed the
aggregate principal amount of the Pror Bonds now outstanding.
(d) The Pror Agreement and the Pror Indenture are each in full force and
effect and have not been amended or supplemented.
(e) The proceeds of the sale of the Bonds (i) will be deposited with the Pror
Trustee for deposit into the Pror Bond Fund to provide a portion of the moneys
necessary for the Refunding and (ii) wil be applied by the Pror Trustee to redeem the
Pnor Bonds pursuant to the Pror Indenture on the Redemption Date. The Prior Bonds
are now outstanding in the pnncipal amount of $66,700,00. Prior to the issuance and
delivery of the Bonds, the Pror Trustee wil be given irrevocable instructions and wil be
directed to call all of the Pror Bonds for redemption on the Redemption Date.
(f) The Bonds are to be issued under and secured by the Indenture, pursuant
to which certain of the Issuer's right, title and interest in this Agreement and the revenues
denved by the Issuer pursuant to this Agreement wil be pledged and assigned to the
Trustee as security for payment of the principal and purchase price of, premium, if any,
and interest on the Bonds.
(g) Neither the execution and delivery of this Agreement or the Indenture, the
issuance and sale of the Bonds, the consummation of the transactions contemplated
hereby and thereby, nor the fulfillment of or compliance with the terms and conditions of
this Agreement, the Tax Certificate, the Indenture or the Bonds conflicts with or results in
a breach of the terms, conditions or provisions of any restrction or any agreement or
instrument to which the Issuer is now a party or by which it is bound, or constitutes a
default under any of the foregoing.
(h) The Issuer has not assigned or pledged and wil not assign or pledge its
interest in this Agreement other than to secure the Bonds.
(i) To the knowledge of the Issuer, after due inquiry, no litigation is pending
or threatened against the Issuer to restrain or enjoin the issuance or sale of the Bonds or
in any way affecting any authonty for or the validity of the Bonds, the Indenture, this
Agreement or the existence or powers of the Issuer or the nght of the Issuer under the Act
to refinance a porton of the costs of the Project through the issuance of the Bonds.
(j) To the knowledge of the Issuer, after due inquiry, no event has occurrd
and no condition exists which, upon the issuance of the Bonds, would constitute an event
of default on the part of the Issuer under the Pror Indenture.
(k) The Issuer wil not knowingly take or omit to take any action reasonably
within its control the taing or omission of which would adversely affect the Tax-Exempt
status of the Bonds. The Issuer wil fie or cause to be fied with the United States
Departent of Treasury the information required by Section 149(e) of the Code.
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(1) A public hearing relating to the Refunding for the Project was held on
August 23,199, following public notice thereof, pursuant to Section 147(t) of the Code,
and the public hearing and approval requirements of Section 147(t) of the Code have
been satisfied.
(m) Within the meaning of Sections 2-2-121 and 2-2-125, Montana Code
Annotated, as amended, no "public offcer," "public employee," "offcer" or "employee"
of the Issuer is engaged as counsel, consultant, representative, or agents of the Company,
or has a substantial financial interest in the Company. None of the officers, deputies, or
employees of the Issuer or employees having termnated their employment with the
Issuer within the six months immediately preceding this Agreement are "interested in"
this Agreement, the Indenture, the Bonds or the transactions contemplated thereby, within
the meaning of Section 2-2-201, Montana Code Annotated, as amended.
Concurrently with the initial authentication and delivery of the Bonds under the
Indenture, the Issuer shall execute and deliver a certficate reaffirming the foregoing
representations, warranties and agreements as of the date thereof.
Sectin 2.02. Representations? Warrnties and Agreements of Company. The Company
represents, warrants and agrees that:
(a) It is a corporation duly organized and validly existing under the laws of
the State of Washington and duly qualified as a foreign corpration in good standing in
the State, is not in violation of any provision of its Articles of Incorpration or its
Bylaws, in each case as the same have been amended, has full corprate power to own its
properties and conduct its business, and has the corporate power to enter into, and by
proper corprate action has duly authorized the execution and delivery of, this Agreement
and the Tax Certficate.
(b) Neither the execution and delivery of this Agreement or the Tax
Certificate, the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement or the Tax
Certificate conflcts with or will result in a breach of any of the terms, conditions or
provisions of any law or judgment to which the Company or its property or assets are
subject or of any corporate restriction contained in its Artcles of Incorpration or its
Bylaws, in each case as the same have been amended, or any agreement or instrument to
which the Company is now a part or by which it is bound, or constitutes, with or without
the giving of notice or lapse of time or both, a default under any of the foregoing, or
results in the creation or imposition of any lien, charge or encumbrance whatsoever upon
any of the property or assets of the Company (other than any lien, charge or encumbrance
which may be created in favor of the Provider on any Bonds purchased by or pledged to
the Provider or on the Company's right to receive certain moneys under the Indenture)
under the terms of any instrument or agreement.
(c) This Agreement has been duly and validly authorized, executed and
delivered by the Company and is a legal, valid and binding obligation of the Company,
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enforceable in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratonum, usury or other similar laws affecting
the nghts of creditors generally. equitable pnncipJes relating to the availability of
remedies and pnnciples of public or governmental policy limiting the enforceability of
the indemnification and contnbution provisions.
(d) Other than the orders of the Washington Utilities and Transportation
Commission, the Idaho Public Utilities Commission and the Public Utilty Commission
of Oregon and the approval by the Issuer, all of which orders and approvals wiI have
been received and be in effect prior to the initial authentication and delivery of the Bonds,
no consent, approval, authonzation or order of, or registration with, any court or
governmental or regulatory agency or body is required with respect to the Company for
the execution, delivery and performance by the Company of this Agreement and the Tax
Certificate.
(e) The Company has received an executed counterpart of the Indenture and
hereby consents to and approves of the provisions thereof (including, without limitation,
the provisions applicable to it).
(f) The information relating to the Project furnished by the Company in
wnting to Chapman and Cutler LLP, as Bond Counsel, in connection with the issuance
by the Issuer of the Bonds, is, to the best of the Company's knowledge, true and correct.
(g) The Pror. Agreement and the Pror Indenture are in fun force and effect
and have not been amended or supplemented.
(h) To the best knowledge of the Company, no event has occurred and is
continuing under the provisions of the Pror Indenture that now constitutes, or with the
lapse of time or the giving of notice, or both, would constitute, an event of default under
the Pnor Indenture.
(i) Upon the initial authentication and delivery of the Bonds, the Company
has given or wil give timely notice as required by the provisions of the Pror Agreement
of the Company's intent to prepay the amounts payable thereunder to provide for the
redemption of the Pror Bonds on the Redemption Date.
u) The aggregate pnncipal amount of Bonds authonzed to be issued under
the Indenture does not exceed the aggregate pnncipal amount of the Pnor Bonds now
Outstanding.
(k) The Company does not, as of the date of issuance of the Bonds,
reasonably expect any use of moneys denved from the proceeds of the Bonds or any
investment or reinvestment thereof or from the sale of the Project which would cause the
Bonds to be classified as "arbitrage bonds" within the meaning of Section 148 of the
Code.
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(I) All of the proceeds of the Pror Bonds, including the investment earnings
thereon, have been disbursd in accordance with the provisions of the Prior Indenture and
the Prior Agreement and there are no proceeds of the Pror Bonds, or investment earnings
therefrom, or any other moneys being held by the Prior Trustee under the Pror Indenture.
(m) The Pollution Control Facilities that comprise the Project constitute
Exempt Facilties and consist of those facilities described in Exhibit A hereto (as such
Exhibit A is from time to time amended or supplemented in accordance with Section 3.04
hereof), and the Company shall not consent to any changes in the Project which would
adversely affect the qualification of the Project as a "project" under the Act or adversely
affect the Tax-Exempt status of the Bonds.
(n) Substantially all of the proceeds of the Pror Bonds have been expended
for the purpse of acquiring, constrcting and improving the Project, which constitutes
Exempt Facilties. None of the proceeds of the Pror Bonds were used (i) to acquire land
(or an interest therein) or (ii) to acquire any propert (or an interest therein) unless the
first use of such property was pursuant to such acquisition, all within the meaning of
Section 147 of the Code.
(0) The Montana Department of Health and Environmenta Sciences has
certified that the pollution control facilities constituting part of the Project, as designed,
are in furtherance of the purpose of abating or controllng atmospheric pollutants or
contaminants, and water pollution, as the case may be.
(p) No construction, reconstrction or acquisition (within the meaning of the
Code) of the Project was commenced prior to the taking of official action by the Issuer
with respect thereto and the Project has been placed in service.
(q) The average maturity of the Bonds does not exceed 120% of the average
reasonably expected remaining economic life of the Project.
(r) All of the Prior Bonds wil be redeemed within 90 days of the date of the
initial authentication and delivery of the Bonds, and all of the proceeds of the sale of the
Bonds wil be spent within 90 days of the initial authentication and delivery of the Bonds.
(s) The Project (i) was designed to meet applicable federal, state and local
requirements for the control of poHution or the dispol of solid waste, (ii) was and is to
be used solely for purpses contemplated by the Act, and (iii) is located within the
boundaries of Rosebud County, Montana.
(t) The representations, warrnties and covenants of the Company set forth in
the Project Certificate are incorporated herein by reference and are hereby made a part of
this Agreement as if set forth herein.
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(u) The Company wil cooperate with the Issuer in fiing or causing to be filed
with the United States Department of Treasury the information required by
Section 149(e) of the Code.
(v) The Company wil pay the principal of and premium, if any, and interest
to the Redemption Date on all Prior Bonds that are validly presented to the Company for
payment after the Pror Trustee has paid to the Company, in accordance with Section 4.08
of the Pror Indenture, any moneys held in trst for the payment of the pnncipal of and
premium, if any, and interest on the Prior Bonds.
Concurrently with the initial authentication and delivery of the Bonds under the
Indenture, the Company shall execute and deliver a certificate reaffrming the foregoing
representations, warranties and agreements as of the date thereof.
ARTICLE III
ISSUANCE OF THE BONDS; THE LOAN;
DISPOSITION OF PROCEEDS OF THE BONDS; THE PROJECT
Section 3.01. Issuance of Bonds. In order to refinance a porton of the cost of the Project
by effecting the Refunding, the Issuer shall issue the Bonds under and in accordance with the Act
and pursuant to the Indenture. The Company hereby approves the issuance of the Bonds and all
terms and conditions thereof.
Section 3.02. Issiunce of Other Obligations. The Issuer and the Company expressly
reserve the right to enter into, to the extent permtted by law, an agreement or agreements other
than this Agreement with respect to the issuance by the Issuer, under an indenture or indentures
other than the Indenture, of obligations to provide additional funds to pay costs of facilities in
addition to the Project or to provide for the refunding of all or any principal amount of the
Bonds. Such obligations wil not be entitled to the benefits of the Indenture, any Credit Facility
or any Additional CollateraL.
Section 3.03. The Loan; Dispositon of Bond Proceeds and Certain Other Moneys. The
Issuer shall lend to the Company the proceeds of the issuance and sale of the Bonds for the
purpses specified in Section 3.01 of this Agreement. The Issuer and the Company shaH,
simultaneously with the delivery of the Bonds, cause such proceeds, other than accrued interest,
if any, to be transferred to the Pror Trustee for deposit into the Prior Bond Fund to be used to
pay the principal amount of the Pror Bonds upon their redemption on the Redemption Date.
Section 3.04. Changes to Project. The Company may at its own expense cause the
Project to be remodeled or cause such substitutions, modifications and improvements to be made
to the Project from time to time as the Company, in its discretion, may deem to be desirable for
its uses and purposes, which remodeling, substitutions, modifications and improvements shall be
included under the terms of this Agreement as part of the Project; provided, however, that no
such remodeling, substitutions, modifications or improvements shall change the description of
the Project set forth in Exhibit A to this Agreement or change the function of any principal
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component of the Project described in Exhibit A to this Agreement unless. in either case. the
Trustee and the Issuer first receive a Favorable Opinion of Bond Counsel with respect to such
change. If any such supplement or amendment affects the description of the Project. the
Company and the Issuer wil amend Exhibit A to this Agreement to reflect such supplement or
amendment. which supplement or amendment wil not be considered as an amendment to this
Agreement requinng the consent of any Owner. the Trustee or the Provider for the purposes of
Artcle XII of the Indenture.
ARTICLE iv
LOAN PAYMENTS; PAYMENTS TO REMARKTING AGENT AND TRUSTEE;
OTHER OBLIGATIONS
Section 4.01. Loan Payments. (a) As and for repayment of the loan made to the
Company by the Issuer pursuant to Section 3.03 hereof, the Company shall pay to the Trustee,
for the account of the Issuer, an amount equal to the aggregate principal amount of and the
premium. if any, on the Bonds from time to time Outstading and. as interest on its obligation to
pay such amount. an amount equal to interest on the Bonds, such amounts to be paid in
installments due on the dates, in the amounts and in the manner provided in the Indenture for the
payment of the principal of and premium, if any. and interest on the Bonds, whether at matunty.
upon redemption, acceleration or otherwise; provided, however, that the obligation of the
Company to make any such payment hereunder shall be reduced by the amount of any moneys
held by the Trustee under the Indenture and available for such payment; and provided, further,
that the obligation of the Company to make any payment hereunder shall be deemed to be
satisfied and discharged to the extent of the corresponding payment made (i) by the Provider to
the Trustee under any Credit Facilty (unless the Credit Facility then in effect shall be an
insurance policy, in which case such obligation of the Company shall not be deemed to be
satisfied and discharged) or (ii) by the Company of principal of or premium, if any, or interest on
any First Mortgage Bonds and any Additional Collateral that corresponds to the principal of or
premium. if any, or interest on the Bonds.
(b) In the event the Company shall fail to make any payment required by
Section 4.01(a) hereof with respect to the principal of and premium, if any, and interest on any
Bond. the payment so in default shall continue as an obligation of the Company until the amount
in default shall have been funy paid, and the Company wil pay interest on any overdue amount
with respect to principal of such Bond at the interest rate then borne by such Bond until paid.
Sectin 4.02. Payments oj Purchase Prue. (a) The Company shall payor cause to be
paid for its account to the Trustee amounts equal to the amounts to be paid by the Trustee as the
purchase price for such Bonds pursuant to Section 3.01 and Section 3.02 of the Indenture in
respect of Outstanding Bonds. such amounts to be paid to the Trustee on the dates such payments
are to be made pursuant to Section 3.01 and Section 3.02 of the Indenture; provided, however,
that the obligation of the Company to make any such payment hereunder shall be reduced by the
amount of any moneys held by the Trustee under the Indenture and available for such payment.
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(b) The Company may provide for the payment of the amounts to be paid by the
Trustee pursuant to Section 3.01 and Section 3.02 of the Indenture by the delivery of a Credit
Facility, which consists of a direct pay letter of credit, to the Trustee. The Company hereby
irrevocably authorizes and directs the Trustee to draw moneys under such Credit Facility in
accordance with the provisions of the Indenture and such Credit Facility to obtain the moneys
necessary to pay the purchase price for Bonds payable under Section 3.01 and Section 3.02 of the
Indenture if and when due.
Section 4.03. Payments Assigned; Obligation Absolute. It is understood and agreed that
the Loan Payments and all payments to be made by the Company on any First Mortgage Bonds
and any Additional Collateral that corresponds to the pnncipal of or premium, if any, or interest
on the Bonds are, by the Indenture, pledged and assigned by the Issuer to the Trustee pursuant to
the Indenture, and that all right, title and interest of the Issuer hereunder (except for amounts
payable to, and the rights of, the Issuer under Section 4.04, Section 4.06a), Section 5.03,
Section 5.06, Section 5.07, Section 5.08 and Section 7.05 hereof and the Issuer's rights to receive
notices, certificates, requests, requisitions, directions and other communications hereunder) are
pledged and assigned to the Trustee pursuant to the Indenture. The Company assents to such
pledge and assignment and agrees that the obligation of the Company to make the Loan
Payments and payments to the Trustee under Section 4.02 hereof and to inake the payments on
any First Mortgage Bonds and any Additional Collateral that corresponds to the principal of or
premium, if any, or interest on the Bonds shall be absolute, irrevocable and unconditional and
shall not be subject to canceJlation, termination or abatement, or to any defense other than
payment, or to any right of setoff, counterclaim or recoupment arising out of any breach under
this Agreement or the Indenture or otherwise by the Company, the Trustee, the Remarketing
Agent, the Provider or any other party, and, furter, that the Loan Payments and the other
payments due hereunder and on any First Mortgage Bonds and any Additional CoJIateral that
corresponds to the principal of or premium, if any, or interest on the Bonds shall continue to be
payable at the times and in the amounts herein and therein specified whether or not the Project,
or any portion thereof, shall have been destroyed by fire or other casualty, or title thereto, or the
use thereof, shall have been taken by the exercise of the power of eminent domain, and that there
shaH be no abatement of or diminution in any such payments by reason thereof, whether or not
the Project shaH be used or useful and whether or not any applicable laws, regulations or
standards shall prevent or prohibit the use of the Project or for any other reason. The Project
shall not constitute any par of the Trust Estate or any par of the security for the Bonds.
Section 4.04. Payment of Expenses. The Company shall pay the reasonable
compensation and reimbursement of reasonable expenses and advances payable to the Issuer, the
Trustee, the Paying Agent, the Registrar, the Securities Depository, Moody's and S&P under the
Indenture and of any Remarketing Agent under a Remarketing Agreement directly to each such
entity. The Company shall also pay all of the expenses of the Prior Trustee in connection with
the Refunding and all other reasonable fees and expenses incurred in connection with the
issuance of the Bonds, including underwriting and legal fees and expenses. The obligations of
the Company under this Section 4.04 shall survive the termination of this Agreement.
Section 4.05. lndemnifu:ation. The Company releases the Trustee, the Paying Agent and
the Registrar and their respective offcers, agents, servants and employees from, agrees that the
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Trustee, the Paying Agent and the Registrar and their respective offcers, agents, servants and
employees shall not be liable for, and agrees to indemnify and hold free and harless the
Trustee, the Paying Agent and the Registrar and their respective officers, agents, directors,
servants and employees from and against, any liability for any loss or damage to property or any
injury to or death of any person that may be occasioned by any cause whatsoever pertaining to
the Project, except in any case as a result of the negligence or wilful misconduct of the Trustee,
the Paying Agent and the Registrar and their respective offcers, agents, servants and employees.
The Company wil indemnify and hold free and haress the Trustee, the Paying Agent
and the Registrar and their respective offcers, agents, servants, directors and employees from
and against any loss, claim, damage, tax, penalty, liability, disbursement, litigation or other
expenses, attorneys' fees and expenses or court costs ansing out of, or in any way relating to, the
execution or pedormance of this Agreement, the Tax Certificate, the issuance or sale of the
Bonds, the delivery of any Credit Facility, the delivery of any Additional Collateral pursuant to
Section 4.08 hereof, the Refunding, the acceptance or administration of the trust under the
Indenture or any other cause whatsoever pertining to this Agreement, the Tax Certificate, the
Indenture or the Credit Facilty, except in any case as a result of the negligence or wilful
misconduct of the Trustee, the Paying Agent and the Registrar or their respective offcers,
agents, servants and employees.
The obligations of the Company under this Section 4.05 shall survive the termination of
this Agreement and the earlier removal or resignation of the Trustee.
Section 4.06. Payment of Taxes and Charges in Lieu Thereof. (a) The Company
covenants and agrees that it wil, from time to time for so long as the Company has an ownership
interest in the Project, promptly pay and discharge or cause to be paid and discharged when due
its share of all taxes, assessments, levies, duties, imposts and governmental, utility and other
charges lawfully imposed upon the Project or any par thereof or upon income and profits thereof
or any payments hereunder or on any Credit Facilty or any Additional CollateraL. In the event
that the Company sells or otherwise transfers its interest in the Project while the Bonds are
Outstanding, the Company shall require the purchasers or transferor of the Company's interest in
the Project to assume the Company's obligations under this Section 4.06(a).
(b) The Company shall payor cause to be satisfied and discharged or make adequate
provision to satisfy and discharge (including the provisions of adequate bonding therefor) within
60 days after the same shall accrue, any lien or charge upon the Loan Payments or payments
under Section 4.02 hereof or amounts payable on any Credit Facility or any Additional
Collateral, and all lawful claims or demands for labor, materials, supplies or other charges which,
if unpaid, might be or become a lien thereon.
(c) Notwithstanding subsections (a) and (b) of this Section, the Company may, at its
expense and in its own name and behalf or in the name and behalf of the Issuer, in good faith
contest any such liens, taxes, assessments and other charges and, in the event of any such contest,
may permit such liens, taxes, assessments or other charges so contested to remain unpaid dunng
the penod of such contest and any appeal therefrom; provided, further, that during such penod
enforcement of such contested item is effectively stayed, unless by nonpayment of any such
- 10-Senes 2OIOA Lon Agreement
items the lien of the Indenture as to the amounts payable hereunder or on any Credit Facility or
any Additional Collateral wil be materially endangered, in which event the Company shall
promptly pay and cause to be satisfied and discharged all such unpaid items. The Issuer wil
cooperate fully with the Company in any such contest. In the event that the Company shall fail
to pay any of the foregoing items required by this Section to be paid by the Company, the Issuer
or the Trustee may (but shall be under no obligation to) pay the same, and any amounts so
advanced therefor by the Issuer or the Trustee shall become an additional obligation of the
Company to the party making the advance. The Company agrees to repay the amounts so
advanced, from the date thereof, together (to the extent permtted by law) with interest thereon
until paid at a rate per annum which is one percentage point greater than the highest rate per
annum then borne by any of the Bonds.
Sectin 4.07. Credit Facilit. (a) The Issuer and the Company agree to be bound by the
provisions of the Indenture pertining to any Credit Facility.
(b) The Company may provide for a Change of Credit Facility at any time that the
Bonds are subject to optional redemption pursuant to Section 4.02(b) of the Indenture, provided
that the Company delivers to the Trustee and the Remarketing Agent not less than 30 days before
the effective date of the Change of Credit Facility:
(1) a notice which (A) states the effective date of the Change of Credit
Facility, (B) describes the tenns of the Change of Credit Facility, (C) directs the Trustee
to give notice pursuant to Section 2.17 of the Indenture that the Bonds are subject to
mandatory purchase, in whole, on or before the effective date of the Change of Credit
Facilty in accordance with Section 3.02(b) of the Indenture, and (D) directs the Trustee
to take any other action as shall be necessary for the Trustee to take to effect the Change
of the Credit Facility; and
(2) on or before the effective date of the Change of Credit Facility, the
Company shall furnish to the Trustee a Favorable Opinion of Bond Counsel with respect
to such Change of Credit Facility and stating, in effect, that such Change of Credit
Facility is authorized under this Agreement.
(c) The Company may provide for one or more extensions of a Credit Facilty for any
penod commencing after its then-current expiration date without complying with the foregoing
provisions of this Section, including, but not limited to, the delivery to the Trustee of new First
Mortgage Bonds in substitution for First Mortgage Bonds then held by the Trustee, identical in
all respects to any First Mortgage Bonds then held by the Trustee except for a subsequent stated
maturity date.
(d) The Company may rescind its election to make a Change of Credit Facility at any
time prior to the effective date thereof.
Section 4.08. Compliance With Prir Agreement. The Company hereby confinns its
obligations under the Pror Agreement to furnish any moneys required to be deposited with the
Prior Trustee under the Pror Indenture in order to redeem the Prior Bonds on the Redemption
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Date, to the extent that the proceeds of the Bonds on deposit in the Pror Bond Fund, together
with any investment earnings thereon, is less than the amount required to pay the principal of and
applicable redemption premium and interest on the Pror Bonds upon their redemption on the
Redemption Date, in accordance with the terms and conditions of the Prior Indenture.
Section 4.09. Delivery of Additnal Collaeral. (a) During any period that the Bonds are
secured by a Credit Facility, the obligation of the Company pursuant to Section 4.01 hereof to
repay the loan made to it by the Issuer pursuant to Section 3.03 hereof may be secured
Additional Collateral.
(b) Any Additional Collateral shall (i) mature on the same date and in the same
principal amount as the Bonds, (ii) ber interest at the same rate and be payable at the same times
as the Bonds, (iii) contain mandatory redemption provisions correlative to the mandatory
redemption provisions of Section 4.03 of the Indenture, and (iv) subject to the provisions of
Section 4.09(c) hereof, require payments of the principal thereof and premium, if any, and
interest thereon to be made to the Trustee for the account of the Issuer. If such Additional
Collateral consists of First Mortgage Bonds, they shall be delivered to and registered in the name
of the Trustee (or, subject to Section 5.12 of the Indenture, the Trustee's nominee) for the
account of the Issuer and the benefit of the Owners from time to time of the Bonds and shall be
held, voted, transferred and surrendered by the Trustee subject to and in accordance with the
respective provisions of this Agreement and the Indenture. Any moneys received by the Trustee
with respect to such Additional Collateral shall be used to make the corresponding payment then
due of principal of and premium, if any, or interest on the Bonds in accordance with the terms of
the Bonds and the Indenture. Any proceeds of such Additional Collateral in excess of the
amounts necessary to pay in full the principal of and premium, if any, or interest on the Bonds
shall be remitted to the Company.
(c) The Company shall receive a credit against its obligations to make any payment of
principal of and premium, if any, or interest on any Additional Collateral described in
Section 4.09(b) hereof (whether at maturity, upon redemption or otherwise), and such obligations
shall be fully or partially, as the case may be, satisfied and discharged, in an amount equal to the
amount, if any, paid by the Company under Section 4.01 hereof, or otherwise satisfied or
discharged, in respect of the principal of and premium, if any, or interest on the Bonds; provided,
however, that, if the Credit Facilty then in effect shall be an insurance policy, the Company shall
receive no such credit for any payment with respect to any Bond made by the Provider. The
obligations of the Company to make such payment of principal of and premium, if any, or
interest on any Additional Collateral shall be deemed to have been reduced by the amount of
such credit.
(d) On any Business Day, the Company may provide for the release of the then-existing
Additional Collateral by delivering other Additional Collateral to the Trustee to secure the
obligation of the Company to repay the loan made to it pursuant to Section 3.03 hereof, but only
if the Company shalL, on the date of delivery of such other Additional Collateral, simultaneously
deliver to the Trustee:
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(i) a Favorable Opinion of Bond Counsel regarding the delivery of such other
Additional Collateral and the release of then-existing Additional Collateral; and
(ii) written evidence from the Provider that it has reviewed the proposed
Additional Collateral and finds the same to be acceptable.
Section 4.10. First Mortgage Bonds. (a) The Issuer agrees that if the Additional
Collateral or Credit Facility consists of First Mortgage Bonds, (i) such First Mortgage Bonds
shall be issued and delivered to, registered in the name of and held by the Trustee (or, subject to
Section 5.12 of the Indenture, the Trustee's nominee) for the benefit of the Owners from time to
time of the Bonds, and the Company shall make all payments of principal of and premium, if
any, and interest on such First Mortgage Bonds to the Trustee as the registered owner thereof;
(ii) the Indenture shall provide that the Trustee shall not sell, assign or transfer the First
Mortgage Bonds except to a successor trustee under the Indenture and shall surrender First
Mortgage Bonds to the Company Mortgage Trustee in accordance with the provisions of Section
4.09(d)and Section 4.1O(b) hereof; and (iii) the Company may take such actions as it shall deem
to be desirable to effect compliance with such restrictions on transfer, including the placing of an
appropriate legend on each First Mortgage Bond and the issuance of stop-transfer instructions to
the Company Mortgage Trustee or any other transfer agent under the Company Mortgage.
(b) If the Additional Collateral or the Credit Facility consists of First Mortgage Bonds
and any Bonds cease to be Outstanding (other than by reason of the payment of First Mortgage
Bonds or by reason of the payment of principal of or interest on the Bonds by the Provider and
other than those Bonds in lieu of or in exchange or substitution for which other Bonds shall have
been authenticated and delivered), the Issuer shall cause the Trustee to surrender to the Company
Mortgage Trustee a corresponding principal amount of First Mortgage Bonds.
ARTICLE V
SPECIAL COVENANTS
Section 5.01. Maintenance of Existence; Conditons Under Which Exceptions
Permitted. The Company shall maintain in good standing its corporate existence as a
corporation organized under the laws of one of the states of the United States or the District of
Columbia and wil remain duly qualified to do business in the State for so long as the Company
has an ownership interest in the Project, wil not dissolve or otherwise dispose of all or
substantially all of its assets and wil not consolidate with or merge into another corporation;
provided, however, that the Company may, without violating the foregoing, undertake from time
to time anyone or more of the following, if, prior to the effective date thereof, such action is
approved by all public utility commissions or similar entities that are required by law to approve
such action and there shall have been delivered to the Trustee a Favorable Opinion of Bond
Counsel with respect to the contemplated actIon:
(a) consolidate or merge with another corpration or sell or otherwise transfer
to another entity all or substantially all of its assets as an entirety, provided the resulting,
surviving or transferee entity, as the case may be, shall be (i) the Company or (ii) an
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entity qualified to do business in the State as a foreign corpration or incorporated and
existing under the laws of the State which shall have assumed in writing all of the
obligations of the Company hereunder, under the Credit Facilty Agreement and with
respect to any Credit Facilty or any Additional Collateral and shall deliver to the Trustee
an opinion of counsel to the Company that such consolidation or merger complies with
the provisions ofthis Section 5.01; or
(b) convey all or substantially all of its assets to one or more wholly-owned
subsidiaries of the Company so long as the Company shall remain in existence and
pnmarily liable on all of its obligations hereunder and the subsidiary or subsidiaries to
which such assets shall be so conveyed shall guarantee in writing the peiformance of all
of the Company's obligations hereunder, under the Credit Facility Agreement, under any
First Mortgage Bonds and, if applicable, under any Additional Collateral.
Section 5.02. Permits or Licenses. In the event that it may be necessary for the proper
performance of this Agreement on the part of the Company or the Issuer that any application or
applications for any permit or license to do or to peiform certin things be made to any
governmental or other agency by the Company or the Issuer, the Company and the Issuer each
shall, upon the request of either, execute such application or applications.
Sectin 5.03. Arbitage Covenant. The Issuer, to the extent it has any control over
proceeds of the Bonds, and the Company covenant and represent to each other and to and for the
benefit of the Beneficial Owners that so long as any of the Bonds remain Outstanding, moneys
on deposit in any fund in connection with the Bonds, whether such moneys were derived from
the proceeds of the sale of the Bonds or from any other sources, wil not be used in a manner
which wil cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the
Code and any lawful regulations promulgated thereunder, as the same exist on this date or may
from time to time hereafter be amended, supplemented or revised. The Company also covenants
for the benefit of the Beneficial Owners to comply with all of the provisions of the Tax
Certificate. The Company reserves the right, however, to make any investment of such moneys
permitted by State law, if, when and to the extent that said Section 148 or regulations
promulgated thereunder shall be repealed or relaxed or shall be held void by final judgment of a
court of competent jurisdiction, but only upon receipt of a Favorable Opinion of Bond Counsel
with respect to such investment.
Section 5.04. Financing Statements. The Company shall, to the extent required by law,
fie and record, refie and re-record, or cause to be filed and recorded, refied and re-recorded, all
documents or notices, including the financing statements and continuation statements, referred to
in Section 5.05 of the Indenture. The Issuer shall cooperate fully with the Company in taking
any such action. Concurrently with the execution and delivery of the Bonds, the Company shall
cause to be delivered to the Trustee the opinion of counsel required pursuant to Section 5.05(a)
of the Indenture.
Sectin 5.05. Covenants With Respect to Tax-Exempt Status of the Bonds. The
Company covenants for the benefit of the Owners of the Bonds and the Issuer that it (a) has not
taken, and wil not take or permit to be taken on its behalf, any action which would adversely
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affect the Tax-Exempt status of the Bonds and (b) wil take, or require to be taken, such actions
as may, from time to time, be required under applicable law or regulation to continue to cause
the Bonds to be Tax-Exempt.
Section 5.06. Indemnifcaton of Issuer. (a) The Company agrees that the Issuer, its
elected or appointed offcials, offcers, agents, servants and employees, shall not be liable for,
and agrees that it wil at all times indemnify and hold free and harmess the Issuer, its elected or
appointed offcials, officers, agents, servants and employees from and against, and pay all
expenses of the Issuer, its elected or appointed offcials, officers, agents, servants and employees
relating to, (a) any lawsuit, proceeding or claim arising in connection with the Project or this
Agreement that results from any action taken by or on behalf of the Issuer, its elected or
appointed officials, offcers, agents, servants and employees pursuant to or in accordance with
this Agreement or the Indenture that may be occasioned by any cause whatsoever, except the
negligence or wilful misconduct of the Issuer, its elected or appointed officials, offcers, agents,
servants or employees, or (b) any liabilty for any loss or damage to propert or any injury to or
death of any person that may be occasioned by any cause whatsoever pertining to the Project,
except the negligence or wilful misconduct of the Issuer, its elected or appointed officials,
offcers, agents, servants or employees. In case any action shall be brought against the Issuer in
respect of which indemnity may be sought against the Company, the Issuer shall promptly notify
the Company in writing and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Issuer and the payment of all expenses.
Failure by the Issuer to notify the Company shall not relieve the Company from any liabilty
which it may have to the Issuer otherwise than under this Section 5.06. The Issuer shall have the
right to employ separate counsel in any such action and participate in the defense thereof, such
counsel shall be paid by the Issuer unless the employment of such counsel has been authorized
by the Company. The Company shall not be liable for any settlement of any such action without
its consent, but if any such action is settled with the consent of the Company or if there be final
judgment for the plaintiff in any such action, the Company agrees to indemnify and hold free and
harmess the Issuer, its elected or appointed officials, officers, agents, servants and employees
from and against any loss or liabilty by reason of such settlement or judgment. The Company
wil reimburse the Issuer, its elected or appointed offcials, offcers, agents, servants and
employees for any action taen pursuant to Section 5.03 of the Indenture.
(b) The obligations of the Company under this Section 5.06 shall survive the
termnation of this Agreement.
(c) It is the intention of the parties that the Issuer, its elected or appointed offcíals,
offcers, agents, servants and employees shall not incur any pecuniary liabilty by reason of the
terms of this Agreement or the Indenture, or the undertakings required of the Issuer hereunder or
thereunder or by reason of the issuance of the Bonds, the execution of the Indenture or the
performance of any act required of the Issuer by this Agreement or the Indenture or requested of
the Issuer by the Company.
Sectin 5.07. Records of Compay; Maintenance and Operation of the Project. (a) The
Trustee and the Issuer shall be permitted at all reasonable times during the term of this
Agreement to examine the boks and records of the Company with respect to the Project;
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provided, however, that information and data contained in the books and records of the Company
shall be considered propnetary and shall not be voluntarily disclosed by the Trustee or the Issuer
except as required by law.
(b) The Company shall cause the Project to be maintained in good repair and shall
cause the Project to be insured in accordance with standard industry practice and shall pay all
costs thereof. All proceeds of such insurance shall be for the account of the Company.
(c) The Company shall be entitled to the proceeds of any condemnation award or
portion thereof made for damage to or taking of any of the Project or other property of the
Company.
(d) Anything in this Agreement to the contrary notwithstanding, the Company shall
have the rIght at any time to cause the operatIon of the Plant to be terminated if the Company
shall have determined or concurred in 3 determination that the continued operation of the Plant is
uneconomical for any reason.
Section 5.08. Right of Access to the Project. The Company agrees that the Issuer, the
Trustee and their respective duly authorized agents shall have the nght, for so long as the
Company has an ownership interest in the Project and subject to such limitations, restnctions and
requirements as the Company may reasonably prescnbe for plant secunty and safety reasons and
in order to preserve secret processes and formulae, at all reasonable times to enter upon and to
examine and inspect the Project; provided, however, nothing contained herein shall entitle the
Issuer or the Trustee to any information or inspection involving confidential m3tenal of the
Company. Information and data contained in the books and records of the Company shall be
considered propnetary and shall not be voluntarily disclosed by the Issuer or the Trustee except
as required by law. In the event that the Company sells or otherwise transfers its interest in the
Project, the Company shall require the purchaser or transferee of the Company's interest in the
Project to agree that the Issuer, the Trustee and their respective duly authorized agents shall have
the same nghts, and be subject to the same limitations, as are provided in this Section with
respect to the Project.
Section 5.09. Remarketing Agent. So long as any of the Bonds are subject to optional or
mandatory purchase pursuant to the provisions of the Indenture (except dunng a Term Interest
Rate Penod that extends to the matunty of the Bonds), the Company shall cause a Remarketing
Agent to be appointed and acting pursuant to a Remarketing Agreement at all such times as shall
be necessary in order to provide for the remarketing of the Bonds and the establishment of
interest rates to be borne by the Bonds in accordance with the provisions of the Indenture.
Section 5.10. Covenant to Provide Ongoing Disclosure. The Company hereby covenants
and agrees that, the Company shall enter into a written undertaking for the benefit of the holders
of the Bonds, as required by Section (b)(5)(i) of Secunties and Exchange Commission Rule
ISc2-12 under the Securities Exchange Act of 1934, as amended (17 CFR Part 240, §240.lSc2-
12) (the "Rule").
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ARTICLE VI
ASSIGNMENT
Section 6.01. Conditions. With the consent of the Provider of any then-existing Credit
Facility, the Company's interest in this Agreement may be assigned in whole or in part by the
Company: (a) to another entity, subject, however, to the conditions that such assignment shall
not relieve (other than as described in Section 5.0l(a)(ii) hereof) the Company from pnmary
liability for its obligations to pay amounts due with respect to any Credit Facility or any
Additional CoJlateral or to make the Loan Payments or to make payments to the Trustee under
Section 4.02 hereof or for any other of its obligations hereunder, or (b) to an Affliate in
connection with the conveyance of the Plant to such Affiiate, subject, however, to the conditions
that (i) such Affiiate is an entity described in Section 5.01(a)(ii) hereof (in which case the
Company shall be relieved of all obligations hereunder and with respect to any Credit Facility or
any Additional Collateral); (ii) such conveyance is approved by any public utility commissions
or similar entities that are required by law to approve such conveyance; and (iii) the Company
shall have delivered to the Trustee and the Provider (A) an opinion of counsel to the Company
that such assignment complies with the provisions of this Section 6.01 and (B) a Favorable
Opinion of Bond Counsel with respect to such assignment.
Section 6.02. Documents Furnished to Trustee. The Company shall, within 30 days
after the delivery thereof, furnish to the Issuer, the Provider and the Trustee a true and complete
copy of the agreements or other documents effectuating any assignment pursuant to Section 6.01
hereof. The Trustee's only duties with respect to any such agreement or other document so
furnished to it shall be to make the same available for examination by any Owner at the Prncipal
Office of the Trustee upon reasonable notice.
Section 6.03. Limitation. This Agreement shall not be assigned in whole or in part,
except as provided in this Article VI or in Section 4.03 or Section 5.01 hereof.
ARTICIÆVlI
EVENTS OF DEFAULT AND REMEDIES
Section 7.01. Events of Default. Each of the following events shall constitute and is
referred to in this Agreement as an "Event of Default":
(a) a failure by the Company to make when due any Loan Payment or any
other payment required under Section 4.02 hereof or on any First Mortgage Bonds that
corresponds to the principal of or premium, if any, or interest on the Bonds, which failure
shall have resulted iu an "Event of Default" under Section 9.01(a), Section 9.01 (b) or
Section 9.01(c) of the Indenture;
(b) a failure by the Company to pay when due any amount required to be paid
under this Agreement or to observe and perform any other covenant, condition or
agreement on its part to be observed or pedormed under this Agreement (other than a
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failure descnbed in Section 7.01(a) above), which failure shall continue for a penod of 90
days (or such longer period as the Issuer and (if so directed by the Owners of a majority
in aggregate principal amount of the Bonds) the Trustee may agree to in writing) after
written notice, specifying such failure and requesting that it be remedied, shall have been
given to the Company by the Trustee or to the Company and the Trustee by the Issuer;
provided, however, that if such failure is other than for the payment of money and is of
such nature that it cannot be corrected within the applicable period, such failure shall not
constitute an "Event of Default" so long as the Company institutes corrective action
within the applicable period and such action is being dilgently pursued which period
shall not be longer than 180 days from the date of the written default notice; or
(c) the dissolution or liquidation of the Company; or the filing by the
Company of a voluntary petition in bankruptcy; or failure by the Company promptly to
lift or bond any execution, garnishment or attchment of such consequence as wil impair
its ability to make any payments under this Agreement or on any First Mortgage Bonds;
or the fiing of a petition or answer proposing the entry of an order for relief by a court of
competent jurisdiction against the Company under Title 11 of the United States Code, as
the same may from time to time be hereafter amended, or proposing the reorganization,
arrangement or debt readjustment of the Company under the provisions of any
bankruptcy act or under any similar act which may be hereafer enacted and the failure of
said petition or answer to be discharged or denied within ninety (90) days after the filing
thereof or the entry of an order for relief by a court of competent jurisdiction in any
proceeding for its liquidation or reorganization under the provisions of any bankrptcy
act or under any similar act which may be hereafter enacted; or an assignment by the
Company for the benefit of its creditors; or the entr by the Company into an agreement
of composition with its creditors (the term "dissolution or liquidation oftlie Company,"
as used in this subsection (c), shall not be construed to include the cessation of the
corprate existence of the Company resulting either from a merger or consolidation of the
Company into or with another corporation or a dissolution or liquidation of the Company
following a transfer of all or substantially all its assets as an entirety, under the conditions
permitting such actions contained in Section 5.01 hereto.
Sectin 7.02. Force Majeure. The provisions of Section 7.01(b) hereof are subject to the
following limitations: if by reason of acts of God; strikes, lockouts or other industrial
disturbances; acts of public enemies; orders of any kind of the government of the United States
or the State, or any departent, agency, political subdivision, court or offcial of any of such
State or any other state which asserts regulatory jurisdiction over the Company; orders of any
kind of civil or miltary authority; insurrections; riots; epidemics; landslides; lightning;
earthquakes; volcanoes; fires; hurrcanes; tornadoes; storms; floos; washouts; droughts; arrests;
restraint of government and people; civil disturbances; explosions; breakage or accident to
machinery; partial or entire failure of utilties; or any cause or event not reasonably within the
control of the Company, the Company is unable in whole or in part to carr out anyone or more
of its agreements or obligations contained herein, other than its obligations under Section 4.01,
Section 4.02, Section 4.04, Section 4.05, Section 4.06, Section 5.01 and Section 5.06 hereof and
on with respect to any Credit Facility or any Additional Collateral, the Company shall not be
deemed in default by reason of not carring out said agreement or agreements or performing said
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obligation or obligations during the continuance of such inabilty. The Company shall make
reasonable effort to remedy with an reasonable dispatch the cause or causes preventing it from
carring out its agreements, provided that the settlement of stnkes, lockouts and other industrial
disturbances shall be entirely within the discretion of the Company, and the Company shall not
be required to make settlement of strikes, lockouts and other industrial disturbances by acceding
to the demands of the opposing party or parties when such course is in the judgment of the
Company unfavorable to the Company except to the extent the Company's abilty to pay when
due any amount due on with respect to any Credit Facility or any Additional Collateral wil be
jeopardized by the Company's failure to make such a settlement.
Sectin 7.03. Remedies. (a) Upon the occurrence and continuance of any Event of
Default described in Section 7.01(a) or Section 7.01(c) hereof, and further upon the condition
that, in accordance with the terms of the Indenture, the Bonds shall have been declared to be
immediately due and payable pursuant to any provision of the Indenture, the Loan Payments
shall without further action, become and be immediately due and payable.
(b) Any waiver of any "Event of Default" under the Indenture and a rescission and
annulment of its consequences shall constitute a waiver of the corresponding Event or Events of
Default under this Agreement and a rescission and annulment of the consequences thereof.
(c) Upon the occurrence and continuance of any Event of Default, the Issuer may take
any action at law or in equity to collect any payments then due and thereafter to become due
hereunder or to seek injunctive relief or specific performance of any obligation, agreement or
covenant of the Company hereunder and under with respect to any Credit Facility or any
Additional CollateraL.
(d) Any amounts collected from the Company pursuant to this Section 7.03 shall be
applied in accordance with the Indenture. No action taken pursuant to this Section 7.03 shall
relieve the Company from the Company's obligations pursuant to Section 4.01 or Section 4.02
hereof.
Section 7.04. No Remedy Exclusive. No remedy conferred upon or reserved to the Issuer
hereby is intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given hereunder
or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise
any nght or power accruing upon any Event of Default shall impair any such right or power or
shall be construed to be a waiver thereof, but any such nght or power may be exercised from
time to time and as often as may be deemed expedient. In order to entitle the Issuer to exercise
any remedy reserved to it in this Article VII, it shall not be necessary to give any notice, other
than such notice as may be herein expressly required.
Section 7.05. Reimbursement of Attorneys? Fees. If the Company shan default under
any of the provisions hereof and the Issuer or the Trustee shan employ attorneys or inCur other
reasonable and proper expenses for the collection of payments due hereunder or on any First
Mortgage Bonds or for the enforcement of performance or observance of any obligation or
agreement on the part of the Company contained herein, the Company wil on demand therefor
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reimburse the Issuer or the Trustee, as the case may be, for the reasonable and proper fees of
such attorneys and such other reasonable and proper expenses so incurred.
Section 7.06. Waiver of Breach. In the event any obligation created hereby shall be
breached by either of the partes hereto and such breach shall thereafter be waived by the other
party, such waiver shall be limited to the partcular breach so waived and shall not be deemed to
waive any other breach hereunder. In view of the assignment of certin of the Issuer's rights and
interest hereunder to the Trustee, the Issuer shall have no power to waive any Event of Default
hereunder by the Company in respect of such rights and interest without the consent of the
Trustee, and the Trustee may exercise any of the rights of the Issuer hereunder.
ARTlCIÆ VIII
PURCHASE OR REDEMPTION OF BONDS
Sectin 8.01. Redemption of Bonds. The Issuer shall take or cause to be taken the
actions required by the Indenture (other than the payment of money) to discharge the lien thereof
through the redemption, or provision for payment or redemption, of all Bonds then Outstanding,
or to effect the redemption, or provision for payment or redemption, of less than all the Bonds
then Outstanding, upon receipt by the Issuer and the Trustee from an Authorized Company
Representative of a written notice designating the principal amount of the Bonds to be redeemed
and specifying the date of redemption (which, unless waived by the Issuer and the Trustee, shall
not be less than 30 days from the date such notice is given, or such shorter period as the Trustee
and the Company may agree from time to time) and the applicable redemption provision of the
Indenture. Unless otherwise stated therein and except with respect to a redemption under
Section 4.03 of the Indenture, such notice shall be revocable by the Company at any time prior to
the time at which the Bonds to be redeemed, or for the payment or redemption of which
provision is to be made, are first deemed to be paid in accordance with Artcle VII of the
Indenture. The Company shall furnish any moneys required by the Indenture to be deposited
with the Trustee or otherwise paid by the Issuer in connection with any of the foregoing
puiposes. In connection with any redemption of the Bonds, the Company shall provide to the
Trustee the names and addresses of the Securities Depositories and Information Services as
contemplated by Section 4.05 of the Indenture. The Company shall furnish the Provider with a
copy of any notice given pursuant to this Section.
Section 8.02. Purchase of Bonds. The Company may at any time, and from time to time,
furnish moneys to the Trustee accompanied by a notice directing such moneys to be applied to
the purchase of Bonds in accordance with the provisions of the Indenture delivered pursuant to
the Indenture, which Bonds shall, at the direction of the Company, be delivered in accordance
with Section 3.06(a)(ii) of the Indenture.
Section 8.03. Obligatn to Prepay. (a) The Company shall be obligated to prepay in
whole or in part the amounts payable hereunder upon a Determination of Taxability (as defined
below) giving nse to a mandatory redemption of the Bonds pursuant to Section 4.03 of the
Indenture, by paying an amount equal to, when added to other funds on deposit in the Bond
- 20-Señes 2OIOA Lon Agreement
Fund, the aggregate principal amount of the Bonds to be redeemed pursuant to the Indenture plus
accrued interest to the redemption date.
(b) The Company shall cause a mandatory redemption to occur within 180 days after a
Determination of Taxabilty (as defined below) shall have occurred. A "Determination of
Taxabilty" shall be deemed to have occurred if, as a result of the failure of the Company to
observe any covenant, agreement or representation in this Agreement, a final decree or judgment
of any federal court or a final action of the Internal Revenue Service determines that interest paid
or payable on any Bond is or was includible in the gross income of an Owner of the Bonds for
federal income tax purposes under the Code (other than an Owner who is a "substantial user" or
"related person" within the meaning of Section 103(b)(13) of the 1954 Code). However, no
such decree or action wil be considered final for this purpose unless the Company has been
given written notice of the same, either directly or in the name of any Owner of a Bond, and, if it
so desires and is legally allowed, has been aforded the opportnity to contest the same, either
directly or in the name of any Owner of a Bond, and until conclusion of any appellate review, if
sought. If the Trustee receives written notice from any Owner of a Bond stating (a) that theOwner has been notified in writing by the Internal Revenue Service that it proposes to include
the interest on any Bond in the gross income of such Owner for the reasons described therein or
any other proceeding has been instituted against such Owner which may lead to a final decree or
action as described herein, and (b) that such Owner wil afford the Company the opportnity to
contest the same, either directly or in the name of the Owner, until a conclusion of any appellate
review, if sought, then the Trustee shall promptly give notice thereof to the Company, the Issuer,
the Provider and the Owner of each Bond then Outstanding. If a final decree or action as
descnbed above thereafter occurs and the Trustee has received written notice thereof as provided
in Section 8.01 hereof at least 45 days prior to the redemption date, the Trustee shall request
prepayment from the Company of the amounts payable hereunder and give notice of the
redemption of the Bonds at the earliest practical date, but not later than the date specified in this
Artcle, and in the manner provided by Section 4.05 of the Indenture.
At the time of any such prepayment of the amounts payable hereunder pursuant to this
Section, the prepayment amount shall be applied, together with other moneys available in the
Bond Fund, to the redemption of the Bonds on the date specified in the notice as provided in the
Indenture, whether or not such date is an Interest Payment Date, to the Trustee's fees and
expenses under the Indenture accrued to such redemption of the Bonds, and to all sums due to
the Issuer under this Agreement.
Whenever the Company shall have given any notice of prepayment of the amounts
payable hereunder pursuant to this Article VII, which includes a notice for redemption of the
Bonds pursuant to the Indenture, all amounts payable under the first paragraph of this
Section 8.03 shall become due and payable on the date fixed for redemption of such Bonds.
Section 8.04. Compliance With Indenture. Anything in this Agreement to the contrary
notwithstanding, the Issuer and the Company shall take all actions required by this Agreement
and the Indenture in order to comply with the provisions of Articles II and IV of the Indenture.
- 21 -Series 20JOA Lon Agrement
ARTICLE ix
MISCELLANEOUS
Sectin 9.01. Tenn of Agreement. This Agreement shall remain in full force and effect
from the date of delivery hereof until the right, title and interest of the Trustee in and to the Trust
Estate shall have ceased, terminated and become void in accordance with Artcle VII of the
Indenture and until all payments required under this Agreement shall have been made. The date
first above written shall be for identification purposes only and shall not be construed to imply
that this Agreement was executed on such date.
Section 9.02. Notices. Except as otherwise provided in this Agreement, all notices,
certificates, requests, requisitions and other communications hereunder shall be in writing and
shall be sufficiently given and shall be deemed given when mailed by Mail or by certified or
registered mail postage prepaid, or by overnight delivery service, addressed as follows (and, if by
overnight delivery service and required by the chosen delivery service, with then-current
telephone number of the addressee): if to the Issuer, at City Hall, Forsyth, Montana 59327,
Attention: Mayor; if to the Company, at 1411 East Mission Avenue, Spokane, Washington
99220, Attention: Treasurer; if to the Trustee, at such address as shall be designated by it in or
pursuant to the Indenture; if to the Provider of the Credit Facility, at such address as shall be
designated by it in or pursuant to the Indenture; and if to the Remarketing Agent, at such address
as shall be designated by such party pursuant to the Remarketing Agreement. A copy of each
notice, certificate, request or other communication given hereunder to the Issuer, the Company,
the Trustee, the Provider and the Remarketing Agent shall also be given to the others. Any ofthe foregoing paries may, by notice given hereunder, designate any further or different addresses
to which subsequent notices, certificates, requests or other communications shall be sent.
Section 9.03. Parties in Interest; Reference to First Mortgage Bond? Other Additinal
Collateral? Credit Facüity? Etc. (a) This Agreement shall inure to the benefit of and shall be
binding upon the Issuer, the Company and their respective successors and assigns, and no other
person, firm or corporation shan have any right, remedy or claim under or by reason of this
Agreement except for rights of payment and indemnification hereunder of the Trustee and the
Registrar. Section 9.05 hereof to the contrary notwithstanding, for purposes of perfecting a
security interest in this Agreement by the Trustee, only the counterpart delivered, pledged and
assigned to the Trustee shall be deemed the original. No security interest in this Agreement may
be created by the transfer of any counterpart thereof other than the onginal counterpart delivered,
pledged and assigned to the Trustee.
(b) At any time when the Company's obligation under Section 4.01 hereof to repay the
loan made to it pursuant to Section 3.03 hereof is not secured by First Mortgage Bonds or other
Additional Collateral, references to First Mortgage Bonds, the Company Mortgage, the Company
Mortgage Trustee or Additional Collateral shall be ineffective.
(c) At any time a Credit Facility is not in effect, references to the Provider herein shall
be of no effect, except with respect to amounts payable to the Provider which have not been paid.
If such amounts have not been paid, the Provider shall be entitled to all notices hereunder. If an
-22 -Seriés 2010A Lo Agreement
"Event of Default" shall have occurred under the Indenture due to failure by the Provider to
honor its obligations pursuant to the Credit Facility, so long as such failure continues any
reference herein to the Provider shaJl be void and of no effect to the extent that the reference may
be construed to include such Provider.
Sectin 9.04. Amendments. This Agreement may be amended only by written agreement
of the Company and the Issuer and with the written consent of the Trustee in accordance with the
provisions of Section 12.05 or 12.06 of the Indenture, as applicable; provided, however, that
Exhibit A to this Agreement may be amended upon compliance only with the requirements of
Section 3.04 hereof.
Section 9.05. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be an original (except as
expressly provided in Section 9.03 hereof), and such counterparts shall together constitute but
one and the same Agreement.
Section 9.06. Severability. If any clause, provision or Section of this Agreement shall, for
any reason, be held invalid or unenforceable by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision hereof.
Section 9.07. Governing Law. This Agreement shall be governed exclusively by and
construed in accordance with the laws of the State.
(Signature page follows.)
- 23-Series iOlOA Lon Agreemnl
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
CITY OF FORSYTH, MONT ANA
rSEAL!
By:~q
M or
ArrEST:~1 /)By:~vu¿~
City Clerk-Treasurer
A VISTA CORPORATION
By:
Vice President and Treasurer
- 24-Series 20lOA Loan Agreement
IN WITNESS WHEREOF. the paries hereto have caused this Agreement to be duly
executed as of the day and year first above written.
CITY OF FORSYTH. MONTANA
By:
Mayor
(SEAL)
ATlEST:
By:
City Clerk-Treasurer
A VISTA CORPORATION
- 24-Series 20 lOA Lmin Agreement
EXHIBIT A
PROJECT DESCRIPTION
1. POLLUTION CONTROL EQUIPMENT
SCRUBBER SYSTE
The air pollution contrl facilties employed on Units #3 and #4 consist of a complete
scrubber system, including duct work, plenums, scrubber vessels, reheaters and induced draft
fans, together with infrastructures, monitonng and electncal controls and instrumentation
therefore, for the purpse of removing the sulfur dioxide (S02) and partculate matter from the
flue gas. The scrubber system also includes a scrubber maintenance facility, including a machine
shop and laboratory dedicated to the scrubber system and an environmental monitoring
laboratory for the pollution control facilities. The scrubber system utilzes the Wet Ventun
Prnciple and consists of eight modules for each unit through which the steam generator gases
from the burned coal must pass.
The gases in the scrubber are contacted with finely atomized scrubber slurr. Within the
stated performance of the system, fly ash parculates are removed by the slurry droplets. The
sulfur dioxide reacts with the alkali contained in the slurry which results from the mixing of
water, fly ash pariculates, hydrated high calcium lime and hydrated dolomitic lime. A major
portion of the sulfur dioxide is converted to solid sulfate compounds which are retained in the
scrubber liquid and can, therefore, be piped to and deposited in an ash pond together with the
parculate.
After the flue gas passes through the ventun section, absorption sprays and wash trays, it
is processed through a demister which removes any entrained slurr and is then reheated and
discharged through the stack.
The slurry system in the Units #3 and #4 scrubber system consists of recycle tanks,
regenerators, agitators, pumps and pipelines. The slurry from the Units #3 and #4 scrubber
system is transported to an effuent holding pond and involves the use of effuent holding tanks,
agitators, pumps and pipelines. A separate wash tray pond system is used to store the suspended
solids collected from the wash tray system. Reclaimed water from the clear water section of
these ponds is circulated back to the scrubber system.
LIME STORAGE
The sole purpose of the lime system is to supply the lie slurr requirements of the
scrubber regeneration system. There is one lime system that serves the sixteen scrubbers for
Units #3 and #4. Major components of the system include four slakers, in which calcined high
calcium lime is reacted with water to produce a hydrated lime slurr, slurr transfer tanks, where
the slurr is diluted with water and mixed with dry hydrated dolomitic lime, slurr feed storage
A-I Series 200 Loa Agrment
tanks, where the slurr wil be held for use by the regenerators as needed, hydrators, for mixing
calcined dolomitic lime with water, and agitators.
SCRUBBER SLUDGE DISPOSAL
Effluent slurr is pumped from the plant to the sludge disposal pond located
approximately three miles southeast of the plant. The suspended solids settle to the pond bottom
and the clear water is pumped back to the plant.
There are two phases in the development of this pond. The first phase requires the
construction of one dam 108 feet high and 1,100 feet in length. A saddle dam must also be
added. The saddle dam wil vary in height with a maximum height for this phase of 36 feet and
be approximately 2,800 feet in length. The capacity of Phase 1 wil be 6,650 acre-feet and it wil
last approximately 10 years.
The development of the second phase wil require that the original dam be raised to 138
feet in height and increased to a length of 2,500 feet. The saddle dam wil be raised to a
maximum height of 66 feet and a total length of 3,500 feet. The capacity of the second phase
wil be an additional 7,00 acre-feet and it wil last approximately 12 years, for a total life of 22
years. The construction of the second phase is not included in cost reported at this time.
The sludge disposal pond design takes into account a permit requirement for minimum
seepage, by providing low permeabilty plastic concrete filled trenches around the periphery of
the pond constructed during the course of Phase 1 work.
COAL DUST CONTROL SYSTEM
The coal dust control system is designed to collect, store and treat coal dust resulting
from mining, crushing, handling and storing coal in the course of normal Units #3 and #4
operations. To control coal dust air pollution the points where coal is transferred between
conveyors or placed in coal piles have been enclosed. The coal transfer stations between
conveyors are enclosed with steel framed strctures with metal siding. The structures are
equipped with vacuum fitration systems, consisting of ducts, blowers, dust removal fiters and
associated equipment, to remove coal dust from exhaust air from the structures, and are also
equipped with mechanical dust collectors. The main line 45,00 ton coal storage pile is enclosed
with a 340' long A-frame precast panel concrete structure designed to contain coal dust, thereby
allowing its removal and treatment.
COOLING TOWER DRIFT CONTAINMENT CONTROL FACILIY
Operation of the cooling towers produces exhaust air emissions containing circulating
water, particulates and other pollutants generally known as cooling tower drift. To control
release of these air pollutants, the cooling towers are provided with high effciency drift
eliminators, located at the top of the cooling tower strctures, which remove drift from the
cooling tower exhaust air.
A-2 Series ZOlOA Lon Agreement
2. SOLID WASTE DISPOSAL
BOTI'OM ASH DISPOSAL
The function of the bottom ash disposal system is to remove accumulations of furnace
bottom ash, pulverizer pyntes, economizer ash, and air preheater fly ash by means of a water-ash
slurry to a disposal pond located approximately 2,00 feet southeast of the plant site. The system
consists generally of three sets of fly ash hoppers, (economizer, air heater, and flue gas duct
hoppers) pyrite hoppers, the bottom ash hopper, and 18,00 gallon transfer tank, a setting pond,
a clear water pond and vanous pumps, and pipelines.
Clinker grinders are used to grind the bottom ash which is then mixed with water and
sluiced to the ash transfer tank.
tank.
The economizer ash collected in economizer hoppers falls by gravity to the ash transfer
The pyntes are collected in local tanks and sluiced to the ash transfer tank.
Ash collected in the flue gas duct hoppers and air preheater hoppers is sluiced to the ash
transfer tank.
These ashes are pumped from the ash transfer tank to the bottom ash pond. Reclaimed
water is returned from the bottom ash disposal pond and redistnbuted to the vanous sections of
the bottom ash disposal system.
The solid waste disposal facilities for purpses of the issuance of the Bonds include only
so much of the bottom ash disposal system as is external to the plant building and include piping
from the building to the settling pond, the pond itself, return water pumps and lines, a clear water
pond and piping back to the plant building.
3. W ATERPoLLtHION CONTROL
NORTH PlANT SEDIMENT POND
The north plant sediment pond is designed to collect and store the storm runoff from the
general north plant area. These waters are retained in the pond, allowing natural evaporation to
desiccate the pond. This prevents high quantities of suspended solids from being discharged to
Armells Creek or other state surface waters.
NORTH PlNT AREA DRAINAGE SYSTEM
The north plant area drainage system is designed to collect and store storm runoff from
the water treatment building, fuel oil handling area and the cooling tower area in the north plant
area drain pond. The pond also serves as a storage facilty for one coolìng tower basin drain,
A-3 Seres 20lOA Lo Agreement
cooling tower overfow, water treatment fiter backwash, and for the cooling tower blow down
water not used in the flue gas scrubbing proess. These waters are potentially contaminated with
oil and high suspended and dissolved solids, and this system stores these discharges preventing
any discharge to Armells Creek or other state surface waters. The north plant area drainage
system consists of collection basins, piping, concrete culvert, yard drains, manholes and special
yard gradings (berms) which route these discharges to the north plant area sump and north plant
area drain pond. The north plant area drain pond incorporates a hypalon liner to comply with a
permit requirement for minimum seepage. The oil separator section of the sump receives oily
surface collection drains. The oil and water are separated. The oil from the sump is then trucked
away for disposaL.
The water discharges are either pumped to the scrubber effluent holding pond via a 6"
diameter pipeline, 19,00 feet in length for evaporation, to the circulating water system, or the
plant oily waste sump as appropriate. Each discharge arrngement has its own set of sump
pumps. The pumps and piping system which discharge to the plant oily waste sump are not
included in the costs covered by this Report, nor is the circulating water system. The waters
recovered are excess to any plant requirements and recovery of the waters does not provide any
economic benefit to the plant.
CHEMICAL AND OILY WASTE SYSTEM
The chemical and oily waste system is designed to collect, store, treat and dispose of
chemical and oiJy wastes resulting from the normal operation of Units #3 and #4. This system
consists of drains and pipes, oil separators, chemical waste sumps, chemical waste neutralizing
tanks, neutralizing chemical storage tanks, chemical inspection equipment, and associated
mechanical and electrical control equipment.
The chemical waste drainage system includes drains and neutralization tanks for
collection and treatment of chemical waste Chemical waste drains are located throughout
Units #3 and #4, and are used to collect and transfer chemical waste to holding sumps and
neutralization tanks. The neutralization equipment includes chemical storage and injection
equipment as well as controls and instrumentation.
The oily waste drainage system is made up of a network of drains which collect oily
waste from throughout Units #3 and #4, and dispose of the wastes in the Units #3 and #4 main
water-oil sump. Oil separation chambers in the sump allow for oil removaL. The treated water is
monitored for trace oil levels and released. After separation, the waste oil is removed by a
contractor to an offsite disposal area.
COOLING TOWER BLOWDOWN SYSTEM
The cooling tower blowdown system consists of a 6" pipeline from the cooling tower to
the waste disposal pond where the blowdown is treated by settlement and evaporation in
accordance with water pollution control requirements.
A-4 Series 20JOA Lo Agrment
GROUNDWATER MONITORING WELLS
Groundwater monitoring wells have been installed around the various ponds associated
with the plant operation. These ponds include the scrubber effuent holding pond, the scrubber
drain pond, the scrubber wash tray pond, the bottom ash pond, and the north plant area effuent
pond. These groundwater monitoring wells provide the ability through sampling to detect and
quantify accidental discharges from the above mentioned plant storage and waste ponds. This is
necessary to show compliance with State Groundwater Standards and with permit requirements
for minimum seepage.
A-5 Series 2010A Lon Agreement
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2nt 1 JM~ -5 Mi to: 06
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TRUST INDENTURE
BEfWEEN
CITY OF FORSYTH, MONTANA
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N .A.
AS TRUSTEE
$17,00,00
CITY OF FORSYTH, MONTANA
POLUrrlON CONTROL REVENUE REFNDING BONDS
(A VISTA CORPORATION COLSTRIP PROJECT)
SERIES 2010B
DATED AS OF DECEMBER 1,2010
28183.0 LOS.doc
870260/RDBfmo Series 2OIOB Trut Indenture
TABLE OF CONTENTS
SECTION PAGE
Recitals.............................................................................................................................................1
Granting Clauses ...................................................~..........................................................................1
ARTICLE I DEANITIONS AND RULF.5 OF CONSTRUCTION ............................................................2
Section 1.01. General Definitions ........................................................................................2
Section 1.02. Rules of Construction ..................................................................................16
ARTICLE II THE BONDS...............................................................................................................17
Section 2.01. Authorization and Terms of Bonds..............................................................17
Section 2.02. Interest Rates and Rate Periods...................................................................J8
Section 2.03. Daily Interest Rate .......................................................................................20
Section 2.04. Weekly Interest Rate....................................................................................20
Section 2.05. Term Interest Rate........................................................................................21
Section 2.06. Flexible Interest Rate ...................................................................................22
Section 2.07. Rescission of EJection ............................... ...................................................23
Section 2.08. Form of Bonds .................. ...........................................................................24
Section 2.09. Execution of Bonds......................................................................................25
Section 2.1 O. Transfer and Exchange of Bonds .................................................................25
Section 2.11. Bond Register...............................................................................................26
Section 2.12. Bonds Mutilated, Lost, Destroyed or Stolen ................................................26
Section 2.13. Bonds; Limited Obligations.........................................................................27
Section 2.14. Disposal of Bonds ........................................................................................27
Section 2.15. Book-Entry System ......................................................................................27
Section 2.16. Credit Facilty Provisions ............................................................................29
Section 2.17. CUSIPNumbers ..........................................................................................31
ARTICLE II PuRCHASE AND RERKEfING OF BONDS ... ............... .................. ................... .....3 i
Section 3.01. Owner's Option to Tender for Purchase ......................................................31
Section 3.02. Mandatory Purchase.....................................................................................32
Section 3.03. Payment of Purchase Pnce ....................... ............. ........... ............................34
Section 3.04. Remarketing of Bonds by Remarketing Agent ............................................35
Section 3.05. Limits on Remarketing ................................................................................36
Section 3.06. Delivery of Bonds; Delivery of Proceeds of Remarketing Sale;
Payments from Credit Facilty. ......... ...... ......... ......... .... .................... ...36
Section 3.07. No Remarketing Sales After Certain Events ...............................................38
Section 3.08. Notice of Mandatory Purchase.....................................................................39
Section 3.09. Pledged Bonds .............................................................................................39
- i -Series 20WB Trust Indenture
SECTION PAGE
ARTICLE iv REDEMYfION OF BONDS ......................................................................................... i
Section 4.01. Redemption of Bonds Generally ..................................................................1
Section 4.02. Redemption Upon Optional Prepayment .....................................................42
Section 4.03. Redemption Upon Mandatory Prepayment .................................................43
Section 4.04. Selection of Bonds for Redemption .............................................................43
Section 4.05. Notice of Redemption ..................................................................................44
Section 4.06. Partial Redemption of Bonds .......................................................................5
Section 4.07. No Partial Redemption After Default ..........................................................5
Section 4.08. Payment of Redemption Prce .....................................................................5
Section 4.09. Effect of Redemption ...................................................................................45
ARTICLE V GENERAL COVENANTS; CREDIT FACILITY; AND ADDITIONAL
COLLATERL .............................................................................................46
Section 5.01. Payment of Bonds ........................................................................................46
Section 5.02. Pedormance of Covenants by Issuer; Authority; Due
Execution ...... ..... ...... .......... ............ ..... ...... ........ .... ........ ......... .... ..........46
Section 5.03. Immunities and Limitations of Responsibility of Issuer;
Remedies..............................................................................................47
Section 5.04. Defense of Issuer's Rights ...........................................................................8
Section 5.05. Recording and Filing; Further Instruments..................................................48
Section 5.06. Rights Under Agreement .............................................................................49
Section 5.07. Arbitrage and Tax Covenants ......................................................................49
Section 5.08. No Disposition of Trust Estate.....................................................................49
Section 5.09. Access to Books...........................................................................................49
Section 5.10. Source of Payment of Bonds........................................................................50
Section 5.1 I . Credit Facilty. ...... .............................. ........ ........... ........................ ..............50
Section 5.12. First Mortgage Bonds. .................................................................................50
Section 5.13. Additional Collateral......... ................. .......... ................. ................ ...... ........ ..52
ARTICLE VI DEPSIT OF BOND PROCEEDS; FUND AND ACCOUNTS; REENUES ......................52
Section 6.01. Creation of Bond Fund and Accounts; Credit Facility Fund;
Rebate Fund .. .... .... ................ ...... ....... .......... ......... ...... ..... ...... ..... .........52
Section 6.02. Disposition of Bond Proceeds and Certain Other Moneys ..........................52
Section 6.03. Deposits into the Bond Fund; Use of Moneys in the Bond
Fund .....................................................................................................53
Section 6.04. Bonds Not Presented for Payment of Prncipal.......... .................................54
Section 6.05. Payment to the Company .............................................................................55
ARTICLE VII INVESTMENTS ....................................................................... .................................55
Section 7.01. Investment of Moneys in Funds...................................................................55
Section 7.02. Conversion of Investment to Cash...............................................................56
Section 7.03. Credit for Gains and Charge for Losses.......................................................56
- ii -Series 2010B Trusilndenwre
SECTION PAGE
ARTICLE VIII DEFEASANCE........................................................................................................56
ARTICLE ix DEFAULTS AND REMEDIES ............................................................ .........................60
Section 9.01. Events of ))fault .........................................................................................60
Section 9.02. Acceleration; Oter Remedies .....................................................................61
Section 9.03. Restoration to Former Position ........ ..................... .............. .... ........ .......... ...64
Section 9.04. Owners' Right to Direct Proceedings ..........................................................64
Section 9.05. Limitation on Owners' Right to Institute Proceedings ................................65
Section 9.06. No Impairment of Right to Enforce Payment ..............................................65
Section 9.07. Proceedings by Trustee Without Possession of Bonds ................................65
Section 9.08. No Remedy Exclusive..................................................................................65
Section 9.09. No Waiver of Remedies...............................................................................66
Section 9.10. Application of Moneys ................................................................................66
Section 9.i I. Severability of Remedies .............................................................................67
ARTICLE X TRUSTEE; PAYING AGENT; REGISTRAR; REMARKETING AGENT ...........................67
Section 10.01. Acceptance of Trusts..................................................................................67
Section 10.02. No Responsibilties for Recitals.................................................................68
Section JO.03. Limitations on Liabilty .............................................................................68
Section 10.04. Compensation, Expenses and Advances ....................................................69
Section 10.05. Notice of Events of Default and Determination of Taxabilty ....................70
Section 10.06. Action by Trustee.......................................................................................71
Section 10.07. Goo-Faith Reliance ..................................................................................71
Section 10.08. ))alings in Bonds; AIJowance of Interest .................................................72
Section 10.09. Several Capacities......................................................................................72
Sectionl0.i0. Resignation of Trustee ...............................................................................72
Section 10.11. Removal of Trustee............................................................ ........................73
Section 10.12. Appointment of Successor Trustee ............................................................73
Section 10.13. Qualifications of Successor Trustee....................................................... ....74
Section 10.14. Judicial Appointment of Successor Trustee...............................................74
Section 10.15. Acceptance of Trusts by Successor Trustee...............................................74
Section 10.16. Successor by Merger or Consolidation ......................................................74
Section 10.17. Standard of Care ........................................................................................75
Section 10.18. Intervention in Litigation of the Issuer ......................................................75
Section 10.19. Remarketing Agent ....................................................................................75
Section 10.20. Qualifications of Remarketing Agent ........................................................75
Section 10.21. Registrar .....................................................................................................76
SectionJ 0.22. Qualifications of Registrar; Resignation; Removal ...................................76
Section 10.23. Paying Agents ............................................................................................77
Section 10.24. Additional Duties of Trustee................................................................ ......77
- JJ -Series 20lOB Tnist Indenture
SECfION PAGE
ARTICLE XI EXECUTION OF INSTRUMENTS BY OWNERS AND PROOF OF
OWNERSHIP OF BONDS .......... .......... .......... ........ ............ .... ... .....................78
ARTICLE XII MODIFICATION OF THIS INDENTURE AND THE AGREEMENT ...............................79
Section 12.01. Supplementa Indentures Without Owner Consent....................................79
Section 12.02. Supplemental Indentures Requiring Owner Consent................................81
Section 12.03. Effect of Supplemental Indenture ..............................................................82
Section 12.04. Consent of the Company and the Provider ................................................82
Section 12.05. Amendment of Agreement Without Owner Consent.................................82
Section 12.06. Amendment of Agreement Requiring Owner Consent.............................83
ARTICI.E XIII MISCELLANEOUS .................................................................................................84
Section 13.01. Successors of the Issuer .............................................................................84
Section 13.02. Parties in Interest........................................................................................84
Section 13.03. Severability ................................................................................................84
Section 13.04. No Personal Liability of Issuer Officials ...................................................85
Section 13 .05. Bonds Owned by the Issuer or the Company.............................................85
Section 13.06. Counterparts...............................................................................................85
Section 13.07. Governing l.w ..........................................................................................85
Section 13.08. Notices .......................................................................................................85
Section 13.09. Holidays .....................................................................................................86
Section 13.10. Purchase of Bonds by Trustee and Remarketing Agent ............................86
Section 13.i 1 . Notices to Moody's and S&P ............................... ............. ........................86
Section 13.12. Rights of Provider ......................................................................................87
Signatures.......................................................................................................................................88
EXHIBIT A - FORM OF BOND
- iv-Series 2010B Trust Indenture
TRUST INDENTURE
THIS TRUST INDENTURE is made and entered into as of December 1,2010, between the
CITY OF FORSYTH, MONTANA, a political subdivision duly organized and existing under the
Constitution and laws of the State and The Bank of New York Mellon Trust Company, N .A., as
trustee.
RECITAL
A. In furtherance of its public purposes, the Issuer has entered into a Loan Agreement,
dated as of December 1,2010, with Avista Corpration, a Washington corporation, providing for
the issuance by the Issuer of the Bonds for the purpose of refunding, in advance of stated
matunty, the Pnor Bonds.
B. The execution and delivery of this Indenture and the issuance and sale of the Bonds
have been in all respects duly and validly authonzed by proper action duly adopted by the
governing authonty of the Issuer.
C. The execution and delivery of the Bonds and of this Indenture have been duly
authonzed and all things necessar to make the Bonds, when executed by the Issuer and
authenticated by the Trustee, valid and binding legal obligations of the Issuer and to make this
Indenture a valid and binding agreement have been done.
Now, THEREFORE, THIS TRUST INDENTURE WITNESSEfH:
GRANTING CLAUSES
The Issuer, in consideration of the premises and the acceptance by the Trustee of the
trusts hereby created and of the purchase and acceptance of the Bonds by the Owners thereof,
and for other goo and valuable consideration. the receipt of which is hereby acknowledged. in
order to secure the payment of the pnncipal of, and premium, if any, and interest on, the Bonds
according to their tenor and effect and to secure the performance and observance by the Issuer of
all the covenants expressed or implied herein and in the Bonds, does hereby grant, bargain, sell
convey, mortgage and warrant. and assign, pledge and grant a secunty interest in, the Trust
Estate to the Trustee, and its successors in trust and assigns forever for the benefit of the Owners:
TO HAVE AND TO HOLD alI and singular the Trust Estate, whether now owned or
hereafter acquired, to the Trustee and its respective successors in trst and assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the equal and
proportonate benefit. secunty and protection of all present and future Owners of the Bonds
issued under and secured by this Indenture without pnvilege. pnority or distinction as to the lien
or otherwise of any of the Bonds over any of the other Bonds;
Series 20108 Trust Indenlure
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall well and truly
pay, or cause to be paid, the principal of, and premium, if any, and interest on, the Bonds due or
to become due thereon, at the times and in the manner mentioned in the Bonds and as provided
in Article VII hereof according to the true intent and meaning thereof, and shall cause the
payments to be made as required under Article V hereof, or shall provide, as permitted hereby,
for the payment thereof in accordance with Article VII hereof, and shall well and truly keep,
perform and observe all the covenants and conditions pursuant to the terms of this Indenture to
be kept, performed and observed by it, and shall pay, or cause to be paid, the principal of, and
premium, if any, and interest on, the Bonds due or to become due in accordance with the terms
and provisions hereof, then and in that case this Indenture and the rights hereby granted shaH
cease, terminate and be void and the Trustee shall thereupon cancel and discharge this Indenture
and execute and deliver to the Issuer, the Company and the Provider such instruments in writing
as shall be requisite to evidence the discharge hereof, otherwise this Indenture shall be and
remain in full force and effect.
THIS TRUST INDENURE FURTHER WITNESSETH, and it is expressly declared, that all
Bonds issued and secured hereunder are to be issued, authenticated and delivered, and all of the
Trust Estate is to be dealt with and disposed of, under, upon and subject to the terms, conditions,
stipulations, covenants, agreements, trusts, uses and purposes hereinafter expressed, and the
Issuer has agreed and covenanted, and does hereby agree and covenant, with the Trustee and
with the respective Owners, from time to time, of the Bonds, or any part thereof, as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Sectin 1.01. General Definitions. The terms defined in this Section 1.01 shall have the
meanings provided herein for all purpses of this Indenture and the Agreement, unless the
context clearly requires otherwise.
"Act" means Sections 90-5-101 to 90-5-114, inclusive, Montana Code Annotated, as
from time to time supplemented and amended.
"Additional Collateral" means any form of collateral delivered by the Company pursuant
to Section 4.09 of the Agreement.
"Agreement" or "Loan Agreement" means the Loan Agreement, dated as of
December 1, 2010, between the Issuer and the Company, as amended and supplemented from
time to time.
"Authorized Company Representative" means any Senior Vice President, any Vice
President, its Treasurer or any Assistant Treasurer of the Company and each other person
designated to act on behalf of the Company by written certificate furnished to the Issuer, the
Provider and the Trustee containing the specimen signature of such person and signed on behalf
of the Company by its President, any Senior Vice President, any Vice President, its Secretary,
- 2-Series 2OlOß Trusi Indenture
any Assistant Secretary, its Treasurer or any Assistant Treasurer. Such certificate may designate
an alternate or alternates.
"Authorized Denomination" means (i) $100,00 or any integral multiple of $5,00 in
excess of $100,00 when the Bonds bear interest at a Daily Interest Rate, a Weekly Interest Rate
or a Aexible Interest Rate; and (ii) $5.00 or any integral multiple of $5.00 when the Bonds
bear interest at a Term Interest Rate.
"Available Moneys" means:
(a) during such time as the Credit Facilty then in effect consists of a direct
pay letter of credit.
(i) moneys on deposit in trust with the Trustee as agent and bailee for
the Owners of the Bonds for a period of at least 123 days prior to and during
which no petition in bankruptcy or similar insolvency proceeding has been fied
by or against the Company or the Issuer (or any subsidiary of the Company, any
guarantor of the Company or any insider (as defined in the United States
Bankrptcy Code). to the extent that such moneys were deposited by any of such
subsidiary, guarantor or insider) or is pending (unless such petition shall have
been dismissed and such dismissal shall be final and not subject to appeal) and
(ii) (A) proceeds of the issuance of refunding bonds (including
proceeds from the investment thereof), and
(B) any other moneys, if, in the written opinion of nationally
recognized counsel experienced in bankruptcy matters selected by the
Company (which opinion shall be in a form acceptable to the Trustee, to
Mooy's. if the Bonds are then rated by Moody's, and to S&P. if the
Bonds are then rated by S&P and shall be delivered to the Trustee at or
prior to the time of the deposit of such proceeds with the Trustee). the
deposit and use of such proceeds (referred to in clause (A) above) or other
moneys (referred to in clause (B) above) wil not constitute a voidable
preference under Section 547 of the United States Bankruptcy Code in the
event either the Issuer or the Company were to become a debtor under the
United States Bankruptcy Code, and
(b) during such time as the Credit Facility then in effect is not a direct pay
letter of credit or there is no Credit Facility then in effect. any moneys on deposit with the
Trustee as agent and bailee for the Owners of the Bonds and proceeds from the
investment thereof.
"Beneficial Owner" has. when the Bonds are held in book-entr form, the meaning
ascribed to such term in Section 2.15 hereof.
- 3 -Series 2010B Trust Indenure
"Bond" or "Bonds" means the Issuer's Pollution Control Revenue Refunding Bonds
(Avista Corporation Colstrip Project) Series 201OB, issued pursuant to this Indenture.
"Bond Counsel" means Chapman and Cutler LLP or any other firm of nationally
recognized bond counsel familar with the type of transactions contemplated under this Indenture
selected by the Company.
"Bond Documents" means this Indenture, the Agreement and the Bonds.
"Bond Fund" means the trust fund by that name created pursuant to Section 6.01(a)
hereof.
"Bond Payment Date" means any Interest Payment Date and any other date on which the
principal of, and premium, if any, and interest on, the Bonds is to be paid to the Owners thereof,
whether upon redemption, at maturity or upon acceleration of maturity of the Bonds.
"Bond Resolution" means the resolution duly adopted and approved by the City Council
of the Issuer on December 6, 2010, authorizing the issuance and sale of the Bonds and the
execution of this Indenture and the Agreement.
"Business Day" means any day except a Saturday, Sunday or other day (a) on which
commercial banks located in the cities in which the Prncipal Ofce of the Provider, the Principal
Office of the Trustee, the Prncipal Offce of the Company, the Prncipal Office of the
Remarketing Agent or the Principal Office of the Paying Agent are located are required Or
authorized by law or regulation to remain closed or are closed, or (b) on which The New York
Stock Exchange is closed.
"Change of Credit Facility" means (a) the delivery of a Credit Facility (or evidence
thereof) to the Trustee, (b) the termination of an existing Credit Facility or (c) a combination of
(a) and (b), in each case in accordance with Section 4.07 of the Agreement.
"Closing" and "Closing Date" means the date of the first authentication and delivery of
fully-executed and authenticated Bonds under this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a
section of the Code herein shall be deemed to include the United States Treasury Regulations,
including temporary and proposed regulations, relating to such section which are applicable to
the Bonds or the use of the proceeds thereof.
"1954 Code" means the Internal Revenue Code of 1954, as amended. Each reference to
a section of the i 954 Code herein shall be deemed to include the United States Treasury
Regulations, including temporary and proposed regulations, relating to such section which are
applicable to the Bonds or the use of the proceeds thereof.
- 4-Series 2010B Trust Indenture
"Company" means Avista Corpration, a corpration organized and existing under the
laws of the State of Washington and formerly known as The Washington Water Power
Company, or its successors and assigns pursuant to Section 5.01 of the Agreement.
"Company Mortgage" means (a) with respect to First Mortgage Bonds, the Mortgage
and Deed of Trust, dated as of June 1, 1939, between the Company and the Company Mortgage
Trustee, as heretofore and hereafter supplemented and amended, and (b) with respect to any
Additional Collateral, references herein and in the Agreement to the Company Mortgage shall
instead mean the mortgage and deed of trust or other agreement pursuant to which the Additional
Collateral is issued, except as may be otherwise provided in a Supplemental Indenture entered
into pursuant to Section 12.01(q) hereof or a supplement to the Agreement entered into pursuant
to Section 12.05(1) hereof.
"Company Mortgage Trustee" means Citbank, NA., formerly First National City Bank
(successor by merger to First National City Trust Company, formerly City Bank Farmers Trust
Company), its successors in trust and their assigns. Upon delivery of any Additional Collateral
that is not First Mortgage Bonds, references herein and in the Agreement to the Company
Mortgage Trustee shall instead mean the trustee with respect to such Additional Collateral,
except as may be otherwise provided in a Supplemental Indenture entered into pursuant to
Section 12.01(q) hereof or a supplement to the Agreement entered into pursuant to
Section 12.05(1) hereof.
"Company Supplemental Indenture " means a supplemental indenture supplementing the
Company Mortgage and providing for the issuance of First Mortgage Bonds or Additional
Collateral, as the case may be.
"Credit Facility" means a facility provided in accordance with Section 4.07 of the
Agreement to provide security or liquidity for the Bonds. The term "Credit Facility" includes,
by way of example and not of limitation, one or more letters of credit, bond insurance policies,
standby bond purchase agreements, lines of credit, First Mortgage Bonds, other Company
mortgage bonds and other security instruments or liquidity devices. A Credit Facility may have
an expiration date earlier than the maturity of the Bonds. The initial Credit Facility shall be First
Mortgage Bonds.
"Credit Facility Agreement" means, for any Credit Facility that is not First Mortgage
Bonds, any agreement between the Company and the Provider and relating to the Credit Facilty
then in effect. For a Credit Facilty that consists of First Mortgage Bonds, Credit Facilty
Agreement shall mean the Company Mortgage.
"Credit Facilty Fund" means the trust fund by that name created pursuant to Section
6.01 (b) hereof.
"Daily Interest Rate" means the interest rate on the Bonds established pursuant to
Section 2.03 hereof.
- 5-Series 2010B Trust Indenture
"Daily Interest Rate Period" means each period during which a Daily Interest Rate is in
effect.
"Delivery Offce of the Trustee" means the office designated as such by the Trustee in
writing to the Remarketing Agent, the Registrar, the Issuer, the Provider and the Company.
"Determination of Taxabilty" shall have the meaning set forth in Section 8.03 of the
Agreement. The Trustee shall give notice of a Determination of Taxability as provided in
Section 10.05 hereof.
"DTC" means The Depository Trust Company and its successors and assigns.
"DTC Participants" means those brokers, securities dealers, banks. trust companies.
clearing corporations and certin other organizations from time to time for which DTC holds
Bonds as securities depository.
"DTC Representation Letter" has the meaning assigned thereto in Section 2.l5(c) hereof.
"Eligible Account" means an account that is either (a) maintained with a federal or state-
chartered depository institution or trust company that has a S&P short-term debt rating of at least
A-2 (or, if no short-term debt rating, a long-term debt rating of at least BBB+); or (b) maintained
with the corporate trust department of a federal depository institution. trust company or state-
chartered depository institution subject to regulations regarding fiduciary funds on deposit,
which, in either case, has corporate trust powers and is acting in its fiduciary capacity. In the
event that an account required to be an "Eligible Account" no longer complies with the
requirement, the Trustee (upon having actual knowledge of such non-compliance) should
promptly (and, in any case, within not more than 30 calendar days) move such account to another
financial institution such that the Eligible Account requirement wil again be satisfied.
"Event of Default " means any occurrence or event specified in Section 9.01 hereof
"Executive Offcer" means the Mayor of the Issuer.
"Exempt Facilities" means facilities which qualify as "sewage or solid waste disposal
facilities" or "air or water pollution control facilities" as defined in the 1954 Code and which
qualify as a "project" under the Act.
"Favorable Opinion of Bond Counsel" means an opinion of Bond Counsel addressed to
the Issuer and the Trustee to the effect that the proposed action is not prohibited by the Act or the
Indenture or the Loan Agreement, as applicable, and wil not adversely afect the Tax-Exempt
status of the Bonds. The Favorable Opinion of Bond Counsel may be in such form and with
such disclosures that such opinion wil not be treated as a "covered opinion" for purposes of the
Treasury Department Regulations governing practice before the Internal Revenue Service
(Circular 230), 31 CFR Part 10.
- 6-Series 20108 Trust Indenture
"First Mortgage Bonds" means a series of first mortgage bonds issued and delivered
under the Company Mortgage. and held by the Trustee as Additional Collateral, a Credit Facility,
or both, as may be designated in wnting to the Trustee by an Authorized Company
Representative at the time the Company delivers such First Mortgage Bonds to the Trustee.
"Flexible Interest Rate" means. with respect to any Bond. the interest rate or rates
associated with such Bond established in accordance with Section 2.06 hereof.
"Flexible Interest Rate Period" means each penod compnsed of Flexible Segments
dunng which Flexible Interest Rates are in effect.
"Flexible Segment" means, with respect to each Bond bearing interest at a Flexible
Interest Rate. the penod established in accordance with Section 2.06(a) hereof.
"Government Obligations" means direct obligations of. or obligations the principal of
and interest on which are fully and unconditionally guaranteed as to full and timely payment by,
the United States of Amenca, which are not subject to redemption or prepayment pnor to stated
matunty.
"Indenture" means this Trust Indenture between the Issuer and the Trustee relating to
issuance of the Bonds. as amended or supplemented from time to time as permitted herein.
"Information Services" means Financial Information, Inc.'s "Daily Called Bond
Service." 30 Montgomery Street, 10th Floor, Jersey City, New Jersey 07302, Attention: Editor~
Standard & Poor's J. J. Kenny's "Called Bond Service," 55 Water Street, 45th Floor, New York,
New York 1001; Mergents "Municipal and Government Manual," 60 Madison Avenue, New
York. New York 10010, Attention: Customer Service and the Municipal Securities Rulemaking
Board, CDT, 190 Duke Street. Alexandria, Virginia 22314. Attention: MSIL Dept.; or, in
accordance with then-current guidelines of the Secunties and Exchange Commission, such other
addresses and/or such other services providing information with respect to called bonds, or no
such services. as the Company may designate in a certificate delivered to the Trustee.
"Interest Account" means the trust account by that name established in the Bond Fund
pursuant to Section 6.01 hereof.
"Interest Component" means the maximum amount stated in the Credit Facility (as
reduced and reinstated from time to time in accordance with the terms thereof), which may be
drawn upon with respect to payment of accrued interest in accordance with Section 2.16(a)
hereof or the porton of the purchase pnce of Bonds delivered pursuant to Section 3.01 and
Section 3.02 hereof corresponding to interest accrued on the Bonds on or pnor to the stated
matunty thereof.
"Interest Coverage Rate" means the interest rate specified in a Credit Facilty as being
the rate used to determine the amount of interest on the Bonds covered by such Credit Facility.
-7 -Series 20lOB Trust Indenture
"Interest Coverage Period" means the number of days specified in the Credit Facility, as
the case may be, which is used to determine the Interest Component.
"Interest Payment Date" means:
(a) with respect to any Daily or Weekly Interest Rate Period, the first
Business Day of each calendar month,
(b) with respect to any Tenn Interest Rate Period, any day in the sixth month
following the commencement of the Term Interest Rate Period and any day in each sixth
month thereafter, each as designated by the Company,
(c) with respect to any Flexible Segment, the Business Day next succeeding
the last day of such Flexible Segment, and
(d) with respect to any Rate Period, the day next succeeding the last day
thereof.
"Investment Securities" means any of the following obligations or securities, to the
extent permitted by law and subject to the provisions of Article VII hereof, on which neither the
Company nor any of its subsidiaries is the obligor.
(a) Government Obligations;
(b) Obligations of any of the following federal agencies, which obligations
represent the full faith and credit of the United States of America:
.Export-Import Bank
Farm Credit System Financial Assistance Corporation
Rural Economic Community Development Administration (formerly
the Farmers Home Administrtion)
General Services Administration
U.S. Maritime Administmtion
Small Business Administration
Government National Mortgage Association (GNMA)
U.S. Department of Housing & Urban Development (PHA ' s)
Federal Housing Administration
Federal Financing Bank;
.
.
.
.
.
.
.
.
.
(c) Direct obligations of any of the following federal agencies whicb
obligations are not fully guaranteed by the full faith and credit of the United States of
America:
.Senior debt obligations rated "Aaa" by Moody's and "AAA" by
S&P issued by the Federal National Mortgage Association (FNMA)
or Federal Home Loan Mortgage Corporation (FHLMC)
- 8-Series 20108 Trut Indenture
.Obligations of the Resolution Funding Corpration (REFCORP)
Senior debt obligations of the Federal Home Loan Bank System
Senior debt obligations of other government-sponsored agencies
approved by the Provider;
.
.
(d) U.S. dollar denominated deposit accounts, federal funds, trust funds, trst
accounts, interest bearing deposits, interest bearing money market accounts, time
deposits, overnight bank deposits, demand deposits and bankers' acceptances with
domestic commercial banks (including the Trustee or any of its afliates) which have a
rating on their short term certficates of deposit on the date of purchase of "A-I" or
"'A-l+" by S&P or "P-L" by Mooy's and maturing no more than 360 days after the date
of purchase or are fully FDIC-insured. (Ratings on holding companies are not considered
as the rating of the bank.);
(e) Commercial paper which is rated at the time of purchase in the single
highest classification, "'A-l+" by S&P or "P-I" by Moody's and which matures not more
than 270 days after the date of purchase;
(f) Investments in a money market mutual fund rated having a rating in the
highest investment category granted thereby from S&P or Moody's, including, without
limitation any mutual fund for which the Trustee or an affiliate of the Trustee serves as
investment manager, administrator, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (i) the Trustee or an affiliate of the Trustee receives
fees from funds for services rendered, (ii) the Trustee collects fees for services rendered
pursuant to this Indenture, which fees are separate from the fees received from such
funds, and (iii) services performed for such funds and pursuant to this Indenture may at
times duplicate those provided to such funds by the Trustee or an affiliate of the Trustee;
(g) Pre-refunded Municipal Obligations defined as follows: Any bonds or
other obligations of any state of the United States of America or of any agency,
instrmentality or local governmental unit of any such state which are not caJJable at the
option of the obligor prior to maturity or as to which irrevocable instrctions have been
given by the obligor to call on the date specified in the notice; and
(1) which are rated, based on an irrevocable escrow account or fund
(the "escrow"), in the highest rating category of S&P and Moody's or any
successors thereto; or
(2) (i) which are fully secured as to pnncipal and interest and
redemption premium, if any, by an escrow consisting only of cash or Government
Obligations, which escrow may be applied only to the payment of such principal
of and interest and redemption premium, if any, on such bonds or other
obligations on the maturity date or dates thereof or the specified redemption date
or dates pursuant to such irrevocable instrctions, as appropriate, and (ii) which
escrow is suffcient, as verified by a nationally recognized independent certified
public accountant, to pay principal of and interest and redemption premium, if
- 9-Series 2010B Trusllndemure
any, on the bonds or other obligations described in this clause (g) on the maturity
date or dates specified in the irrevocable instructions referred to above, as
appropriate;
(h) General obligations of states with a rating of at least "A2IA" or higher by
both Moody's and S&P;
(i) Investment agreements approved in writing by the Provider supported by
opinions of counsel to the investment agreement provider with notice to Moody's and
S&P; and
(j) Other forms of investments (including repurchase or reverse repurchase
agreements, including those of the Trustee or any of its affiliates) approved in writing by
the Provider with notice to Moody's and S&P.
"Issue Date" means the date of the initial authentication and delivery of the Bonds, being
December 15,2010.
"Issuer" means the City of Forsyth, Montana, and its successors, and any political
subdivision resulting from or surviving any consolidation or merger to which it or its successors
may be a party.
"Loan Payments" means the payments required to be made by the Company pursuant to
Section 4.01(a) of the Agreement.
"Mail" means by first-class mail postage prepaid.
"Maturity Date" means March 1,2034.
"Maxmum Interest Rate" means (3) while 3 Credit Facility is in effect that specifies an
Interest Coverage Rate, the lesser of 18% per annum or the Interest Coverage Rate specified in
the Credit Facility, and (b) at all other times, 18% per annum.
"Moody's" means Moody's Investors Service, a corporation organized and existing
under the laws of the State of Delaware, its successors and assigns, and, if such corporation shall
for any reason no longer pedorm the functions of a securities rating agency, "Moody's" shall be
deemed to refer to any other nationally recognized rating agency designated by the Company by
notice to the Issuer, the Trustee and the Remarketing Agent.
"Outstanding" or "Bonds Outstanding" or "Outstanding Bonds" means, as of any given
date, all Bonds which have been authenticated and delivered by the Trustee under this Indenture,
except:
(a) Bonds canceled or purchased by or delivered to the Trustee for
cancellation;
- 10-Senes 20lOB Trust Indenture
(b) Bonds that have become due (at maturity or on redemption, acceleration or
otherwise) and for the payment, including premium if any, and interest accrued to the due
date, of which suffcient moneys are held by the Trustee;
(c) Bonds deemed paid in accordance with Section 6.04 and Artcle VII
hereof; and
(d) Bonds in lieu of which others have been authenticated under Section 2.10
(relating to transfer and exchange of Bonds) or Section 2.12 (relating to mutilated, lost,
stolen, destroyed or undelivered Bonds) or Bonds paid pursuant to Section 2.12;
provided, however, that if the principal of or interest due on Bonds is paid by the Provider
pursuant to the Credit Facility, such Bonds shall remain Outstanding for all purpses of this
Indenture until the Provider receives payment therefor as contemplated by the Credit Facility.
Bonds purchased by the Trustee or the Company pursuant to Artcle II hereof will
continue to be Outstanding .until the Company has paid or caused to be paid to the Trustee an
amount suffcient to provide for the payment of all accrued interest on such Bonds and the
Company has directed the Trustee to cancel such Bonds. Bonds purchased pursuant to tenders
and not delivered to the Trustee for payment are not Outstanding, but there wil be Outstanding
Bonds authenticated and delivered in lieu of such undelivered Bonds as contemplated by
Section 3.03 hereof.
"Owner" or "Owners" or "Owner of Bonds" or "Owners of Bonds" means the
registered owner of any Bond~ provided however, when used in the context of the Tax~Exempt
status of the Bonds, the term "Owners" shall include a Beneficial Owner.
"Paying Agent" means any paying agent appointed as provided in Section 10.23 hereof,
or any successor thereto.
"Person" means one or more individuals, estates, joint ventures, joint-stock companies,
partnerships, associations, corprations, limited liabilty companies, trusts or unincorprated
organizations, and one or more governments or agencies or political subdivisions thereof.
"Plant" means the Colstnp Plant Units 3 and 4 coal-fired steam electric generating plant,
located in Rosebud County, Montana.
"Pledged Bonds" means Bonds purchased with moneys drawn under a Credit Facilty,
which consists of a direct pay letter of credit, following the tender thereof pursuant to Section
3.01 or Section 3.02 hereof to be deemed owned by the Company for purpses of grnting a first
priority lien upon Pledged Bonds hereunder, registered in the name of the Provider, as pledgee,
or in the name of the Trustee (or its nominee), as agent for the Provider, delivered to or upon the
direction of the Provider pursuant to Section 3.06(a)(iii) hereof.
"Pollution Control Facilties" means those items of machinery, equipment, strctures,
improvements, other facilties and related property, which have been or wil be acquired,
- 11 -Series 20lOB Trust Indenture
constructed and improved at the Plant and are particularly described in Exhibit A to the
Agreement, as said Exhibit A may be from time to time amended.
"Principal Account" means the trust account by that name established within the Bond
Fund pursuant to Section 6.01 hereof.
"Principal Offce of the Company" means the offce of the Company specified in or
designated pursuant to Section 3.06(c) hereof.
"Principal Offce of the Paying Agent" means the office designated in writing by the
Paying Agent (which mayor may not be its principal corporate offce) to the Trustee, the Issuer,
the Company, the Registrar, the Provider and the Remarketing Agent.
"Principal Offce of the Provider" means the offce of the Provider located in the United
States of America and designated as the Prncipal Office of the Provider by the Provider in
writing to the Company, the Issuer, the Registrar, the Remarketing Agent and the Trustee.
"Principal Offce of the Registrar" means the offce or offces designated as such by the
Registrar (which mayor may not be its principal corprate office) in writing to the Trustee, the
Company, the Issuer, the Provider and the Remarketing Agent.
"Principal Offce of the Remarketing Agent" means the office designated in writing by
the Remarketing Agent to the Trustee, the Issuer, the Company, the Provider, the Registrar and
the Paying Agent.
"Principal Offce of the Trustee" means the office designated as such by the Trustee
(which mayor may not be its principal corprate office) in writing to the Remarketing Agent, the
Registrar, the Provider, the Issuer and the Company.
"Prior Agreement" means the Loan Agreement between the Issuer and the Company,
dated as of December 1, 2008, pursuant to which the Company is obligated to provide for
payment of the Pror Bonds.
"Prior Bond Fund" means the bond fund created under Section 6.01(a) of the Pror
Indenture from which payments of principal and interest on the Pror Bonds are made.
"Prior Bonds" means the City of Forsyth, Montana, Pollution Control Revenue
Refunding Bonds (A vista Corporation Colstrip Project) Series 2008 which are being refunded
pursuant to the Refunding with the proceeds of the Bonds.
"Prior Indenture" means the Trust Indenture between the Issuer and the Prior Trustee,
dated as of December 1,2008, pursuant to which the Pror Bonds were issued.
"Prior Trustee" means The Bank of New York Mellon Trust Company, N.A., as trustee
under the Pror Indenture.
- 12-Scncs 2010B Trust Indenture
"Project" means the Company's 15% undivided interest in the Pollution Control
Facilities.
"Project Certifcate" means the Company's certificate or certficates, delivered
concurrently with the initial authentication and delivery of the Bonds, with respect to certain
facts which are within the knowledge of the Company to enable Bond Counsel to determine
whether interest on the Bonds is includible in the gross income of the Owners thereof under
applicable provisions of the Code.
"Provider" and "Provider of the Credit Facility" means the provider of the Credit
Facility; provided, however, Provider shall not include the Company as provider of the First
Mortgage Bonds.
"Provider Default" means any of the following events:
(a) the failure of the Provider to make any payment required under the Credit
Facility when the same shall become due and payable or the Credit Facilty shall for any
reason cease to be in full force and effect;
(b) a decree or order for relief shall be entered by a court or insurance
regulatory authority having jurisdiction over the Provider in an involuntary case under an
applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, custodian, trustee, sequestrator (or similar official) of
the Provider or for any substantial part of the propert of the Provider or ordering the
winding-up or liquidation of the afairs of the Provider, and the continuance of any such
decree or order shall be unstayed and remain in effect for a period of 60 consecutive days
thereafter; or
(c) the Provider shall commence a voluntary case under any applicable federal
or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the
Provider shall consent to or acquiesce in the entry of an order for relief in an involuntary
case under any such law, or the Provider shaH consent to the appointment of or taking of
possession by a receiver, liquidator, trustee, custodian, sequestrator (or similar offcial) of
the Provider or for any substantial part of its propert, or the Provider shaH make a
general assignment for the benefit of creditors, or the Provider shall fail generally or
admit in writing its inabilty to pay its debts as such debts become due, or the Provider
shall take corporate action in contemplation or furtherance of any of the foregoing.
"Rate" means any Daily Interest Rate, Weekly Interest Rate, Aexible Interest Rate or
Term Interest Rate.
"Rate Period" means any Daily Interest Rate Period, Weekly Interest Rate Penod,
Aexible Interest Rate Period or Term Interest Rate Period.
- 13-Series 20lOB Trust Indenture
"Rating Category" means one of the genenc rating categories of either Moody's or S&P,
without regard to any refinement or gradation of such rating category by a numerical modifier or
otherwise.
"Rebate Fund" means the trust fund by that name created pursuant to Section 6.01(c)
hereof.
"Record Date" means:
(a) with respect to any Interest Payment Date in respect of any Daily Interest
Rate Penod, Weekly Interest Rate Penod or Aexible Segment, the Business Day next
preceding such Interest Payment Date,
(b) with respect to any Interest Payment Date in respect of any Term Interest
Rate Period (except as provided in clause (d) below), the fifteenth day of the month
preceding such Interest Payment Date, and
(c) for any Interest Payment Date established pursuant to clause (d) of the
definition of "Interest Payment Date" in this Section 1.01 in respect of a Term Interest
Rate Period, the Business Day next preceding such Interest Payment Date.
"Redemption Date" means December 15,2010, the date upon which the Pror Bonds are
to be redeemed.
"Refunding" means the senes of transactions whereby the Pror Bonds are refunded and
cancelled with the proceeds of the Bonds and other money provided by the Company.
"Registrar" means the Trustee or any successor Registrar appointed in accordance with
Section 10.22.
"Remarketing Agent" means any Person serving from time to time as Remarketing Agent
under this Indenture.
"Remarketing Agreement" means the remarketing agreement between the Company and
the Remarketing Agent pursuant to which the Remarketing Agent agrees to act as Remarketing
Agent for the Bonds, as such remarketing agreement may be amended and supplemented from
time to time.
"Responsible Offcer" means, when used with respect to the Trustee, the president, any
vice president, any assistant vice president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, senior associate, associate or any other officer of the Trustee within the
Prncipal Office of the Trustee (or any successor corprate trust offce) customanly performing
functions similar to those performed by the persons who at the time shall be such offcers,
respectively, or to whom any corporate trust matter is referred at the Prncipal Offce of the
Trustee because of such person's knowledge of and familanty with the particular subject and
having direct responsibilty for the administration of this Indenture.
- 14-Series 2010B Trust Indenture
"Revenues" means all moneys pledged hereunder and paid or payable to the Trustee for
the account of the Issuer in accordance with the Agreement, the First Mortgage Bonds and the
Credit Facility, and all receipts credited under the provisions of this Indenture against such
payments; provided however, that "Revenues" shall not include moneys held by the Trustee in
the Rebate Fund or to pay the purchase price of Bonds subject to purchase pursuant to Artcle II
hereof.
"S&P" means Standard & Poor's Ratings Services, a Division of The McGraw-Hil
Companies, Inc., a corporation organized and existing under the laws of the State of New York,
its successors and assigns, and, if such corporation shall for any reason no longer perform the
functions of a securities rating agency, "S&P" shall be deemed to refer to any other nationally
recognized secunties rating agency designated by the Company by notice to the Issuer, the
Trustee and the Remarketing Agent.
"Securities Depositories" The Depository Trust Company, Call Notification Department,
55 Water Street, 50th floor, New York, New York 1001-00, Fax: [phone], -7233,
-7234, or -7235; or, in accordance with then-current guidelines of the Securities and Exchange
Commission, such other addresses and/or such other securities depositories, or no such
depositories, as the Company may designate in a certificate delivered to the Trustee.
"SIFMA Swap Index" means, on any date, a rate determined on the basis of the seven-
day high grade market index of tax-exempt variable rate demand obligations, as produced by
Municipal Market Data, Inc., and published or made available by the Securities Industr &
Financial Markets Association (formerly the Bond Market Association) ("SIFMA") or any
person acting in cooperation with or under the sponsorship of SIFM and effective from such
date; provided, however, that if such index is no longer provided by Municipal Market Data, Inc.
or its successor, the "SIFM Swap Index" shall mean such other reasonably comparable index
selected by the Remarketing Agent.
"State" means the State of Montana.
"Supplemental Indenture" means any indenture supplemental to this Indenture entered
into between the Issuer and the Trustee pursuant to the provisions of Section 12.01 or
Section 12.02 hereof.
"Tax Certifcate" means the Tax Exemption Certificate and Agreement relating to the
Bonds to be executed by the Company, the Issuer and the Trustee on the date of the initial
authentication and delivery of the Bonds, as amended and supplemented from time to time.
"Tax-Exempt" means, with respect to interest on any obligations of a state or local
government, including the Bonds, that such interest is excludable from in gross income of the
owners of such obligations for federal income tax purpses, except for interest on any such
obligations for any period during which such obligations are owned by a person who is a
"substantial user" of any facilities financed or refinanced with such obligations or a "related
person" within the meaning Section 103(b)(13) of the Internal Revenue Code of 1954, whether
or not such interest is includible as an item of tax preference or otherwise includible directly or
- 15 -Series 20108 Trust Indenture
indirectly for purposes of calculating other tax liabilities, including any alternative minimum tax
or environmental tax under the Code.
"Term Interest Rate" means the interest rate on the Bonds established in accordance with
Section 2.05 hereof.
"Term Interest Rate Period" means each period of six months or more during which a
Term Interest Rate is in effect.
"Treasury Regulations" means the United States Treasury Regulations dealing with the
tax-exempt bond provisions of the Code.
"Trustee" means The Bank of New York Mellon Trust Company, N.A., as trstee under
this Indenture, and any successor Trustee appointed hereunder.
"Trust Estate" means all right, title and interest of the Issuer in and to the Agreement
(except for amounts payable to, and the rights of, the Issuer under Section 4.04, Section 4.06a),
Section 5.03, Section 5.06, Section 5.07, Section 5.08 and Section 7.05 thereof, and, pnor to an
Event of Default, the Issuer's right to give approvals and consents thereunder, and the Issuer's
right to receive notices, certificates, requests, requisitions, directions and other communications
thereunder), including, without limitation, all right, title and interest of the Issuer in the
Revenues, any Credit Facility and any Additional Collateral held by the Trustee, all moneys and
other obligations which are, from time to time, deposited or required to be deposited with or held
or required to be held by or on behalf of the Trustee in trust in the Bond Fund under any of the
provisions of this Indenture (except moneys or obligations deposited with or paid to the Trustee
for payment or redemption of Bonds that are deemed no longer Outstanding hereunder), the
Credit Facility, and all other rights, title and interest which are subject to the lien of this
Indenture; provided, however, that the "Trust Estate" shall not include (a) moneys held by the
Trustee in the Rebate Fund or to pay the purchase price of Bonds subject to purchase pursuant to
Artcle II hereof or (b) the Plant, the Pollution Control Facilities, the Project or any part thereof.
"Wall Street Journal" means The Wall Street Journal or any other newspaper or journal
printed in the English language and customarily published on each business day devoted to
financial news and selected by the Trustee, whose decision shall be finaL.
"Weekly Interest Rate" means the interest rate on the Bonds established in accordance
with Section 2.04 hereof.
"Weekly Interest Rate Period" means each period during which a Weekly Interest Rate is
in effect.
Sectin 1.02. Rules o/Constrction. Unless the context otherwise requires:
(a) an accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles;
- 16-Series 2010B Trust Indntur
(b) references to Articles and Sections are to the Articles and Sections of this
Indenture or the Agreement, as the case may be;
(c) words importng the singular number shall include the plural number and
vice versa and words importng the masculine shall include the feminine and vice versa;
and
(d) the headings and Table of Contents herein are solely for convenience of
reference and shall not constitute a part of this Indenture nor shall they affect its
meanings, construction or effect.
ARTICLE II
THE BONDS
Sectwn2.01. Authorition and Terms of Bond. (a) There is hereby authonzed and
created under this Indenture an issue of bonds designated as City of Forsyth, Montana, Pollution
Control Revenue Refunding Bonds (A vista Corpration Colstnp Project) Series 201OB. The
total aggregate pnncipal amount of Bonds that may be issued and Outstanding under this
Indenture is expressly limited to $ t 7 ,00,00 exclusive of Bonds executed and authenticated as
provided in Section 2.07 hereof; provided however, that no Bonds shall be delivered hereunder
until the Trustee receives a request and authonzation of the Issuer signed by the Executive
Offcer to authenticate and deliver the pnncipal amount of the Bonds therein specified to the
purchaser or purchasers therein identified upon payment to the Pror Trustee, for the account of
the Issuer, of the sum specified in such request and authorization.
(b) The Bonds shall be issued as registered Bonds, without coupons, in Authorized
Denominations and shall all be dated as of the Issue Date. The Bonds shall mature, subject to
pnor redemption as provided in Article iv hereof, upon the terms and conditions hereinafter set
forth, on the Matunty Date. The Bonds shall bear interest at the rate or rates determined as
provided in this Article II.
(c) The Bonds shall be numbered consecutively from 1 upward. Each Bond shall bear
interest from the Interest Payment Date next preceding the date of registration and authentication
thereof unless it is registered and authenticated on or pnor to the first Interest Payment Date, in
which event it shall bear interest from the Issue Date; provided, however, that if, as shown by the
records of the Paying Agent, interest on the Bonds shall be in default, Bonds issued in exchange
for Bonds surrendered for registrtion of transfer or exchange shall bear interest from the last
date to which interest has been paid in full or duly provided for on the Bonds, or, if no interest
has been paid or duly provided for on the Bonds, from the Issue Date. Payment of the interest on
any Bond shall be made to the person appeanng on the bond registration books of the Registrar
as the registered Owner thereof on the Record Date, such interest to be paid by the Paying Agent
to such registered Owner, as follows:
- 17 -Series 20lOB Trust Indenture
(1) in respect of any Bond which is registered in the bok-entry system
pursuant to Section 2.15 hereof, in immediately available funds by no later than
2:30 p.m., New York, New York time, and
(2) in respect of any Bond which is not registered in the book-entr system
pursuant to Section 2.15 hereof, (i) by bank check mailed by first-class mail on the
Interest Payment Date, to such Owner's address as it appears on the registration books of
the Registrar or at such other address as has been furnished to the Registrar in writing by
such Owner, or (ii) dunng any Rate Period other than a Term Interest Rate Period, in
immediately available funds on the Interest Payment Date (by wire transfer or by deposit
to the account of the Owner of any such Bond if such account is maintained with the
Paying Agent), but in respect of any Owner of Bonds dunng a Daily Interest Rate Period,
a Weekly Interest Rate Period or a Aexible Interest Rate Period, only to any Owner
which owns Bonds in an aggregate principal amount of at least $1,00,000 on the Record
Date, according to the written instructions given by such Owner to the Paying Agent or,
if no such instructions have been provided as of the Record Date, by bank check mailed
by first-class mail on the Interest Payment Date to the Owner at such Owner's address as
it appears as of the Record Date on the registration books of the Registrar, except, in each
case, that, if and to the extent that there shall be a default in the payment of the interest
due on such Interest Payment Date, such defaulted interest shall be paid to the Owners in
whose name any such Bonds are registered as of a special record date to be fixed by the
Trustee, notice of which shall be given to such Owners not less than ten (10) days prior
thereto.
Both the principal of and premium, if any, on the Bonds shan be payable upon surrender
thereof in lawful money of the United States of America at the Principal Ofce of the Paying
Agent. Notwithstanding the foregoing, interest on any Bond beanng a Aexible Interest Rate and
not registered in the bok-entr system pursuant to Section 2.15 hereof shall be paid only upon
presentation to the Trustee of the Bond on which such payment is due.
Section 2.02. Interest Rates and Rate Peris. (a) General. The Bonds shall bear
interest from and including the Issue Date until final payment of the principal or redemption
price thereof shall have been made or provided for in accordance with the provisions hereof,
whether at maturity, upon redemption or otherwise, at the lesser of (A) the Maximum Interest
Rate or (B) the interest rate or rates determined as provided in this Artcle II. Such rate or rates
shall be effective for the periods set forth in this Article n. During any Rate Period other than a
Term Interest Rate Period, interest on the Bonds shaH be computed upon the basis of a 365- or
366-day year, as applicable, for the number of days actually elapsed. During any Term Interest
Rate Period, interest on the Bonds shall be computed upon the basis of a 360-day year, consisting
of twelve 30-day months. Notwithstanding any other provision of this Indenture, it shall not be
required that all Bonds bear interest at the same rate, provided that only one Rate Period may
apply to the Bonds. Not later than 1 J :15 a.m. (New York, New York time) on the Business Day
immediately following the day on which there has been a change in the rate of interest applicable
to the Bonds, the Remarketing Agent shall give notice of such change to the Trustee by facsimile
or electronic maiL. The Trustee hereby agrees to give telephonic notice to the Company,
promptly confirmed in writing (which may be by electronic mail or facsimile), on each Record
- 18-Senes 2010B Trust Indentur
Date of the amount of interest to be due and payable on the Bonds on the next succeeding
Interest Payment Date.
(b) Rate Periods. The term of the Bonds shall be divided into consecutive Rate Periods
dunng which the Bonds shall bear interest at the Daily Interest Rate, Weekly Interest Rate, Term
Interest Rate or at Aexible Interest Rates. During the initial Rate Period, the Bonds shall bear
interest at a Term Interest Rate.
(c) Initial Rate Period. The Bonds shall initially bear interest at the Weekly Interest
Rate of 1.50%. Thereafter, the Bonds shall bear interest as provided herein.
(d) Determination Conclusive. The determination of each Aexible Interest Rate, Daily
Interest Rate, Weekly Interest Rate and Term Interest Rate and each Aexible Segment by the
Remarketing Agent shall be conclusive and binding upon such parties, the Trustee, the Paying
Agent, the Issuer, the Company, the Owners of the Bonds and the Provider.
(e) Adjustment or Continuation of Rate Period. At any time, the Company, by written
notice to the Issuer, the Trustee, the Paying Agent, the Provider and the Remarketing Agent may,
subject to Section 2.02(g), elect that the Bonds shall bear interest at a different Rate or, in the
case of a Term Interest Rate Period, shall continue to bear interest at a Term Interest Rate. Such
notice (A) shall specify the effective date of such adjustment to a different Rate, which shall be
(1) a Business Day not earlier than the fifteenth day following the fifth Business Day after the
date of receipt by the Trustee and the Paying Agent of such notice (or the fifteenth day following
such shorter period after the date of such receipt as shall be acceptable to the Trustee), and (2) a
day on which the Bonds would be permitted to be redeemed at the option of the Company
pursuant to Section 4.02(b) hereof; provided, however, that if prior to the Company's mailing of
notice of such election, any Bonds shall have been called for redemption and such redemption
shall not have theretofore been effected, the effective date of the new Rate Period shall not
precede such redemption date; and (B) if the adjustment is (1) from a Term Interest Rate Period
having a duration in excess of one year or (2) to a Term Interest Rate Period, unless such Term
Interest Rate Period immediately succeeds a Term Interest Rate Period of the same duration and
is subject to the same optional redemption rights under Section 4.02(b)(iii) hereof, shall be
accompanied by a Favorable Opinion of Bond Counsel with respect to such adjustment; provided
that, in the case of an adjustment to a Aexible Interest Rate Period, the Favorable Opinion of
Bond Counsel described in clause (B) above, if required, shall be reaffirmed as of the effective
date of such adjustment.
(f) Notice of Adjustment or Continuation of Rate Period. The Trustee shall give notice
by Mail of an adjustment to a different Rate Period or the continuation of a Term Interest Rate
Period to the Owners not less than 15 days prior to the effective date of such Rate Period. Such
notice shall state (A) that the interest rate on the Bonds wil be adjusted to a different Rate or, in
the case of a Term Interest Rate Period, will continue to bear interest at a Term Interest Rate
(subject to the Company's ability to rescind its election as provided in Section 2.07 hereof), (B)
the effective date of such adjustment or continuation, (C) that such Bonds are subject to
mandatory purchase on such effective date, (D) the procedures for such mandatory purchase, (E)
the purchase price of such Bonds on such effective date (expressed as a percentage of the
- 19-Senes 20lOB Trost Indentur
pnncipal amount thereof), and (F) that the Owners of such Bonds do not have the right to retain
their Bonds on such effective date.
(g) Adjustments Subject to Compliance With Credit Facility Agreement. The Bonds
shall not be adjusted from one Rate Penod to a different Rate Period unless any applicable
conditions precedent to such adjustment specified in the Credit Facility Agreement (unless a
Provider Default shall have occurred and be continuing) have been satisfied.
Sectin 2.03. Daily Interest Rate. During each Daily Interest Rate Period, the Bonds
shall bear interest at the Daily Interest Rate determined by the Remarketing Agent on each
Business Day for such Business Day. The Daily Interest Rate shall be the rate determined by the
Remarketing Agent (based on an examination of Tax-Exempt obligations comparable to the
Bonds known by the Remarketing Agent to have been priced or traded under then-prevailing
market conditions) to be the lowest rate which would enable the Remarketing Agent to sell the
Bonds on the effective date of such rate at a price (without regard to accrued interest) equal to
100% of the principal amount thereof. If the Remarketing Agent shall not have determined a
Daily Interest Rate for any day by 9:30 a.m., New York, New York time, the Daily Interest Rate
for such day shall be 100% of the most recent SIFMA Swap Index. The Remarketing Agent
shan notify the Company, the Trustee, the Provider and the Paying Agent of each Daily Interest
Rate on the date of the determination thereof by written notice communicated by electronic mail,
by facsimile or by other means acceptable to the Company, the Trustee, the Provider and the
Paying Agent.
Sectin 2.04. Weekly Interest Rate. During each Weekly Interest Rate Period, the Bonds
shan bear interest at the Weekly Interest Rate determined by the Remarketing Agent no later
than the first day of such Weekly Interest Rate Period and thereafter no later than Tuesday of
each week during such Weekly Interest Rate Period, unless any such Tuesday shaH not be a
Business Day, in which event the Weekly Interest Rate shall be determned by the Remarketing
Agent no later than the Business Day next preceding such Tuesday. The Weekly Interest Rate
shaH be the rate determined by the Remarketing Agent (based on an examination of Tax-Exempt
obligations comparable to the Bonds known by the Remarketing Agent to have been priced or
traded under then prevailing market conditions) to be the lowest rate which would enable the
Remarketing Agent to sell the Bonds on the effective date of such rate at a price (without regard
to accrued interest) equal to 100% of the principal amount thereof. If the Remarketing Agent
shall not have determined a Weekly Interest Rate for any period, the Weekly Interest Rate shaH
be 110% of the most recent SIFM Swap Index. The first Weekly Interest Rate determined for
each Weekly Interest Rate Period shall apply to the period commencing on the first day of such
Weekly Interest Rate Period and ending on the next succeeding Tuesday. Thereafter, each
Weekly Interest Rate shan apply to the period commencing on each Wednesday and ending on
the next succeeding Tuesday, unless such Weekly Interest Rate Period shall end on a day other
than Tuesday, in which event the last Weekly Interest Rate for such Weekly Interest Rate Period
shall apply to the period commencing on the Wednesday preceding the last day of such Weekly
Interest Rate Period and ending on such last day. The Remarketing Agent shall notify the
Company, the Trustee, the Provider and the Paying Agent of each Weekly Interest Rate on the
date of the determination thereof by written notice communicated by electronic mail, by
facsimile or by other means acceptable to the Company, the Trustee, and the Paying Agent.
- 20-Series 20108 Trust Indnture
Sectin 2.05. Term Interest Rate. (a) Determination of Term Interest Rate. During each
Term Interest Rate Period, the Bonds shall bear interest at the Term Interest Rate determined by
the Remarketing Agent on a Business Day selected by the Remarketing Agent, but not more than
60 days prior to and not later than the effective date of such Term Interest Rate Period. The
Term Interest Rate shall be the rate determined by the Remarketing Agent on such date as being
the lowest rate (based on an examination of Tax-Exempt obligations comparable to the Bonds
known by the Remarketing Agent to have been priced or traded under then prevailing market
conditions) which would enable the Remarketing Agent to sell the Bonds on the effective date of
such Term Interest Rate Period at a pnce (without regard to accrued interest) equal to 100% of
the principal amount thereof, provided however, that if. for any reason, a Term Interest Rate for
any Term Interest Rate Period shall not be determined or become effective, then (A) in the event
the then-current Term Interest Rate Period is for one year or less, the Rate Period for the Bonds
shall automatically adjust to a Daily Interest Rate Period and (B) in the event the current Term
Interest Rate Period is for more than one year, the Rate Period for the Bonds shall automatically
adjust to a Term Interest Rate Period of one year and one day; provided, however, that if the last
day of any successive Term Interest Rate Period shall not be a day immediately preceding a
Business Day, then such successive Term Interest Rate Period shall end on the first day
immediately preceding the Business Day next succeeding such day or, if such Term Interest Rate
Period would end after the day prior to the final maturity date of the Bonds, the next succeeding
Rate Period shall be a Term Interest Rate Period ending on the day pnor to the final matunty
date of the Bonds; provided further that in the case of clause (B) above, if the Company delivers
to the Trustee a Favorable Opinion of Bond Counsel prior to the end of the then-effective Term
Interest Rate Period, the Rate Penod for the Bonds wil adjust to a Daily Interest Rate Period. If
the Daily Interest Rate for the first day of a Daily Interest Rate Period descnbed in clause (A)
above is not determined as provided in Section 2.03 hereof the Daily Interest Rate for the first
day of such Daily Interest Rate Penod shall be 110% of the most recent SIFMA Swap Index. If
a Term Interest Rate for any such Term Interest Rate Period described in clause (B) above is not
determined as described in the first sentence of this Section 2.05(a), the Term Interest Rate for
such Term Interest Rate Period shall be 110% of the most recent One-Year Note Index
theretofore published in The Bond Buyer (or, if The Bond Buyer is no longer published or DO
longer publishes the One-Year Note Index, the one-year note index contained in the publication
determined by the Remarketing Agent, or, if the Remarketing Agent is the Trustee, determined
by the Company, as the most comparable to The Bond Buyer). The Remarketing Agent shall
notify the Company, the Trustee, the Provider and the Paying Agent of each Term Interest Rate
on the date of the determination thereof by written notice communicated by electronic mail, by
facsimile or by other means acceptable to the Company, the Trustee, the Provider and the Paying
Agent.
(b) Automatic Adjustment to Daily Interest Rate Period or Continuation of Term
Interest Rate Period. If, by 15 days prior to the end of the then-current Term Interest Rate
Period, the Trustee shall not have received notice of the Company's election that the Bonds shall
bear interest at a Daily Interest Rate, a Weekly Interest Rate, a Term Interest Rate or a Aexible
Interest Rate, (A) in the event the then-current Term Interest Rate Period is for one year or less,
the Rate Period for the Bonds shall automatically adjust to a Daily Interest Rate Period and (B)
in the event the current Term Interest Rate Penod is for more than one year, the Rate Period for
the Bonds shall automatically adjust to a Term Interest Rate Period of one year and one day,
- 21 -Series 20lOB Trust Indenture
provided however, that if the last day of any successive Term Interest Rate Period shall not be a
day immediately preceding a Business Day, then such successive Term Interest Rate Penod shall
end on the first day immediately preceding the Business Day next succeeding such day or, if
such Term Interest Rate Period would end after the day prior to the Maturity Date, the next
succeeding Rate Period shall be a Term Interest Rate Period ending on the day prior to the
Maturity Date; provided however, that in the case of clause (B) above, if the Company delivers
to the Trustee a Favorable Opinion of Bond Counsel prior to the end of the then-effective Term
Interest Rate Period, the Rate Period for the Bonds wil adjust to a Daily Interest Rate Penod. If
the Daily Interest Rate for the first day of a Daily Interest Rate Period described in clause (A)
above is not determned as provided in Section 2.03(a) hereof, the Daily Interest Rate for the first
day of such Daily Interest Rate Period shall be i 10% of the most recent SIFM Swap Index. If
a Term Interest Rate for any such Term Interest Rate Period described in clause (B) above is not
determned as described in the first sentence of this Section 2.05(a), the Term Interest Rate for
such Term Interest Rate Period shall be 110% of the most recent One-Year Note Index
theretofore published in The Bond Buyer (or, if The Bond Buyer is no longer published or no
longer publishes the One-Year Note Index, the one-year note index contained in the publication
determined by the Remarketing Agent, or, if the Remarketing Agent is the Trustee, determined
by the Company, as the most comparable to The Bond Buyer).
(c) Successive Term Interest Rate Periods; Alternate Optional Redemption Provisions.
At the same time that the Company elects to have the Bonds bear interest at a Term Interest Rate
or to continue to bear interest at a Term Interest Rate, the Company may also elect that such
Term Interest Rate Period shall be automatically renewed for successive Term Interest Rate
Periods each having the same duration as the Term Interest Rate Period so specified; provided
however, that such election must be accompanied by a Favorable Opinion of Bond Counsel with
respect to such continuing automatic renewals of such Term Interest Rate Period. If such
election is made, no Favorable Opinion of Bond Counsel shall be required in connection with the
commencement of each successive Term Interest Rate Period determined in accordance with
such election. Further, at the same time that the Company elects to have the Bonds bear interest
at a Term Interest Rate or continue to bear interest at a Term Interest Rate, subject to the
provisions of Section 4.02(c) hereof the Company may also specify to the Trustee optional
redemption prices and periods different from those set out in Section 4.02 hereof during the
Term Interest Rate Period(s) with respect to which such election is made.
(d) Consecutive Term Interest Rate Periods. At the time the Company so elects an
adjustment to or continuation of a Term Interest Rate Period, the Company may specify two or
more consecutive Term Interest Rate Periods.
Section 2.06. Flexible Interest Rate. (a) Determination of Flexible Segments and
Flexible Interest Rates. During each Aexible Interest Rate Period, each Bond shall bear interest
during each Aexible Segment for such Bond at the Aexible Interest Rate for such Bond as
described herein. Each Aexible Segment and Aexible Interest Rate for each Bond shaH be the
Aexible Segment and Aexible Interest Rate determined by the Remarketing Agent. Each
Aexible Segment for any Bond shall be a period of not less than one nor more than 270 days
(subject to any limitations set forth in the Remarketing Agreement), determined by the
Remarketing Agent to be, in its judgment, the period which, together with all other Aexible
- 22-Series 20lOB Trust Indenture
Segments for the Bonds then outsanding, is likely to result in the lowest overall net interest
expense on the Bonds; provided however, that (A) any such Bond purchased on behalf of the
Company and remaining unsold in the hands of the Remarketing Agent as of the close of
business on the effective date of the Aexible Segment for such Bond shall have a Aexible
Segment of one day or, if such Aexible Segment would not end on a day immediately preceding
a Business Day, a Aexible Segment of more than one day ending on the day immediately
preceding the next Business Day and (B) each Aexible Segment shall end on a day which
immediately precedes a Business Day and no Aexible Segment shall extend beyond the final
maturity date of the Bonds.
The Aexible Interest Rate for each Aexible Segment for each Bond shall be the rate
determined by the Remarketing Agent (based on an examination of Tax-Exempt obligations
comparable to the Bonds known by the Remarketing Agent to have been priced or traded under
then prevailng market conditions) no later than the first day of such Aexible Segment (and in
the case of a Aexible Segment of one day, no later than 12:30 p.m. New York, New York time,
on such date) to be the lowest rate which would enable the Remarketing Agent to sell the Bonds
on the effective date of such rate at a price (without regard to accrued interest) equal to 100% of
the principal amount thereof. If a Aexible Segment or a Aexible Interest Rate for a Aexible
Segment is not determined or effective, the Aexible Segment for such Bond shall be a Aexible
Segment of one day, and the interest rate for such Aexible Segment of one day shaH be 110% of
the most recent SIFM Swap Index. The Remarketing Agent shaH notify the Company, the
Trustee, the Provider and the Paying Agent of each Aexible Interest Rate and Aexible Segment
on the date of the determination thereof by written notice communicated by electronic mail, by
facsimile or by other means acceptable to the Company, the Trustee, the Provider and the Paying
Agent.
(b) Special Provisions for an Adjustment From Flexible Interest Rates. If at any time
during a Aexible Interest Rate Period, the Company elects, pursuant to Section 2.02(e) that the
Bonds shall no longer bear interest at Aexible Interest Rates and shall instead bear interest as
otherwise permitted under this Indenture, the Company shall notify the Issuer, the Trustee, the
Paying Agent, the Provider and the Remarketing Agent of such election by Mail and shall
instruct the Remarketing Agent to determine Aexible Segments of such duration that, as soon as
possible, all Aexible Segments shall end on the same date, not earlier than the day that would
permit the notice required by Sections 2.02(f) to be given, and such date shall be the last day of
the then current Aexible Interest Rate Period. Upon the establishment of such Aexible
Segments, the day next succeeding the. last day of all such Aexible Segments shaH be the
effective date of the Rate Period elected by the Company. The Remarketing Agent, promptly
upon the determnation thereof, shall give wntten notice of such last day and such effective dates
to the Issuer, the Company, the Trustee and the Paying Agent.
Section 2.07. Rescission of Electin. Notwithstanding anything herein to the contrary,
the Company may rescind any election by it to adjust to or, in the case of a Term Interest Rate
Period, continue a Rate Period pursuant to Section 2.02(e) hereof prior to the effective date of
such adjustment or continuation, by giving written notice thereof to the Issuer, the Trustee, the
Paying Agent, the Provider and the Remarketing Agent prior to such effective date. At the time
that the Company gives notice of rescission, it may also elect in such notice to continue the Rate
- 23-Series 2010B Trust Indenture
Period then in effect; provided however, that if the Rate Period then in effect is a Term Interest
Rate Period, the subsequent Term Interest Rate Period shall not be of a different duration than
the Term Interest Rate Period then in effect unless the Company provides to the Trustee a
Favorable Opinion of Bond Counsel prior to the expiration of the then-current Term Interest Rate
Penod. If the Trustee receives notice of such rescission pnor to the time the Trustee has given
notice to the Owners of the Bonds of the change in or continuation of Rate Periods pursuant to
Section 2.02(f) hereof, then such notice of change in or continuation of Rate Periods shall be of
no force and effect and shall not be given to the Owners. If the Trustee receives notice of such
rescission after the Trustee has given notice to the Owners of the Bonds pursuant to
Section 2.02(f) hereof of an adjustment from any Rate Penod other than a Term Interest Rate
Period in excess of one year or if an attempted adjustment from one Rate Period (other than a
Term Interest Rate Period in excess of one year) to another Rate Period does not become
effective for any other reason, and if the Company does not elect to continue the Rate Period
then in effect, then the Rate Period for the Bonds shall automatically adjust to or continue in a
Daily Interest Rate Period and the Trustee shall promptly give notice thereof to the Owners of
the Bonds. If the Trustee receives notice of such rescission after the Trustee has given notice to
the Owners of the Bonds pursuant to Section 2.02(f) hereof of an adjustment from a Term
Interest Rate Period in excess of one year to another Rate Penod (including a Term Interest Rate
Period of a different duration), or if an attempted adjustment from a Term Interest Rate Period in
excess of one year to another Rate Period (including a Term Interest Rate Period of a different
duration) does not become effective for any reason and if the Company does not elect to continue
the Rate Period then in effect, then the Rate Period for the Bonds shall continue to be a Term
Interest Rate Period of the same duration as the immediately preceding Term Interest Rate
Penod, subject to the second proviso contained in Section 2.05(a); provided that if the Company
delivers to the Trustee a Favorable Opinion of Bond Counsel prior to the end of the then~
effective Term Interest Rate Period, the Rate Period for the Bonds shall be as directed by the
Company in writing. If a Daily Interest Rate for the first day of any Daily Interest Rate Period to
which a Rate Period is adjusted under this Section 2.07 is not determined as provided in
Section 2.03 hereof, the Daily Interest Rate for the first day of such Daily Interest Rate Period
shall be i 10% of the most recent SIFM Swap Index. The Trustee shall promptly give written
notice of each such automatic adjustment to a Rate Period pursuant to this Section 2J17 to the
Owners in the form provided in Section 2.02(f) hereof.
Notwithstanding the rescission by the Company of any notice to adjust to or from or
continue a Rate Period, if notice has been given to Owners pursuant to Section 2.02(f), the Bonds
shall be subject to mandatory purchase as specified in such notice.
Section 2.08. Form of Bonds. The Bonds and the certficate of authentication to be
executed thereon shall be in substatially the form attched hereto as Exhibit A, with such
appropriate variations, omissions and insertions as are permitted or required by this Indenture.
Upon adjustment to a Term Interest Rate Period, the form of Bond may include a summary of the
mandatory and optional redemption provisions to apply to the Bonds during such Term Interest
Rate Period, or a statement to the effect that the Bonds wil not be optionally redeemed during
such Term Interest Rate Period; provided that the Registrar shall not authenticate such a revised
Bond form prior to receiving a Favorable Opinion of Bond Counsel that such Bond form satisfes
- 24-Series 20lOB Trost Indenture
the requirements of the Act and of this Indenture and that authentication thereof wiJ not
adversely affect the Tax-Exempt status of the Bonds.
Section 2.09. Executn of Bonds. The Bonds shall be signed in the name and on behalf
of the Issuer with the manual or facsimile signature of its Mayor and attested by the manual or
facsimile signature of the City Clerk. The Bonds shall then be delivered to the Registrar for
authentication by it. In case any offcer who shall have signed any of the Bonds shall cease to be
such offcer before the Bonds so signed or attested shall have been authenticated or delivered by
the Registrar or issued by the Issuer, such Bonds may nevertheless be authenticated, delivered
and issued and, upon such authentication, delivery and issuance, shall be as binding upon the
Issuer as though those who signed and attested the same had continued to be such offcers of the
Issuer. Also, any Bond may be signed on behalf of the Issuer by such persons as on the actual
date of the execution of such Bond shall be the proper officers although on the nominal date of
such Bond any such person shall not have been such offcer.
Only such of the Bonds as shall bear thereon a certificate of authentication in the form set
forth in Exhibit A hereto, manually executed by an authorized signatory of the Registrar, shall be
valid or obligatory for any purpse or entitled to the benefits of this Indenture, and such
certificate of the Registrar shall be conclusive evidence that the Bonds so authenticated have
been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture.
Upon authentication of any Bond, the Registrar shall set forth on such Bond (1) the date
of such authentication and (2) in the case of a Bond bearing interest at a Aexible Interest Rate
and not registered in the bok-entr system pursuant to Section 2.15 hereof, such Aexible
Interest Rate, the last day of the applicable Aexible Segment, the number of days comprising
such Aexible Segment and the amount of interest to accrue during such Aexible Segment.
Section 2.10. Transfer and Exchange of Bonds. Registration of any Bond may, in
accordance with the terms of this Indenture, be transferred at the Prncipal Offce of the
Registrar, upon the books of the Registrar required to be kept pursuant to the provisions of
Section 2.11 hereof, by the Person in whose name it is registered, in person or by its attorney
duly authorized in writing, upon surrender of such Bond for cancellation, accompanied by a
wntten instrument of transfer in a form approved by the Registrar, duly executed. The Registrar
shall require the payment by the Owner of the Bond requesting such transfer of any tax or other
governmental charge required to be paid and there shall be no other charge to any Owners for
any such transfer. Whenever any Bond shall be surrendered for registration of transfer, the
Issuer shall execute and the Registrar shall authenticate and deliver a new Bond or Bonds of the
same tenor and of Authorized Denominations. Except with respect to Bonds purchased pursuant
to Sections 3.01 and 3.02 hereof, no registration of transfer of Bonds shall be required to be
made for a period of fifteen (IS) days next preceding the date on which the Trustee Mails any
notice of redemption, nor shall any registration of transfer of Bonds called for redemption be
required, except the unredeemed portion of any Bond being redeemed in part.
Bonds may be exchanged at the Principal Ofce of the Registrar for a like aggregate
principal amount of Bonds of the same tenor and of Authorized Denominations. The Registrar
shall require the payment by. the Owner of the Bond requesting such exchange of any tax or other
- 25-Series 2010B Trust Indenture
governmental charge required to be paid with respect to such exchange, and there shall be no
other charge to any Owners for any such exchange. Except with respect to Bonds purchased
pursuant to Section 3.01 and Section 3.02 hereof, no exchange of Bonds shall be required to be
made for a period of fifteen (15) days next preceding the date on which the Trustee provides
notice of redemption in accordance with Section 4.05 hereof, nor shall any exchange of Bonds
called for redemption be required, except the unredeemed portion of any Bond being redeemed
in part.
The Issuer, the Registrar, the Trustee and any agent of the Issuer, the Registrar or the
Trustee may treat the person in whose name the Bond is registered as the owner thereof for the
purpse of receiving payment as herein provided and for all other purpses, whether or not the
Bond be overdue, and neither the Issuer, the Registrar, the Trustee, any paying agent nor any
such agent shall be affected by notice to the contrary.
Sectin 2.11. Bond Register. The Registrar wil keep or cause to be kept at its Prncipal
Office sufficient books for the registration and the registration of transfer of the Bonds, which
shall at all times, during regular business hours, be open to inspection by the Issuer, the Trustee,
the Provider, the Remarketing Agent and the Company; and, upon presentation for such purpose,
the Registrar shall under such reasonable regulations as it may prescribe, register the transfer or
cause to be registered the transfer, on said boks, Bonds as hereinbefore provided.
Sectin 2.12. Bonds Mutlated, Lost, Destroyed or Stolen. If any Bond shall become
mutilated, the Issuer, upon the request and at the expense of the Owner of said Bond, shall
execute, and the Registrar shall thereupon authenticate and deliver, a new Bond of like tenor and
number in exchange and substitution for the Bond so mutilated and provision of indemnity
satisfactory to the Registrar, but only upon surrender to the Registrar of the Bond so mutilated.
Every mutilated Bond so surrendered to the Registrar shall be canceled by it and delivered to the
Company. If any Bond issued hereunder shall be lost, destroyed or stolen, evidence of such loss,
destruction or theft may be submitted to the Issuer, the Company and the Registrr, and if such
evidence shall be satisfactory to them and indemnity satisfactory to them shall be given, the
Issuer, at the expense of the Owner, shall execute, and the Registrr shall thereupon authenticate
and deliver, a new Bond of like tenor in lieu of and in substitution for the Bond so lost, destroyed
or stolen (or if any such Bond shall have matured or shall be about to mature, instead of issuing a
substitute Bond the Registrar may pay the same without surrender thereof). The Issuer may
require payment of a reasonable fee for each new Bond issued under this Section and payment of
the expenses which may be incurred by the Issuer and the Registrar. Any Bond issued under the
provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen shall
constitute an original additional contrctual obligation on the par of the Issuer whether or not the
Bond so aneged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be
equally and proportonately entitled to the benefits of this Indenture with all other Bonds secured
by this Indenture.
To the extent permitted by law, the provisions of this Section are exclusive and shall
preclude an other rights and remedies with respect to the replacement or payment of mutilated,
lost, destroyed or stolen Bonds.
- 26-Series i010B Trut Indenture
Section 2.13. Bonds; Limited Obligatons. The Bonds, together with premium, if any,
and interest thereon, shall be limited and not general obligations of the Issuer not constituting or
giving rise to a pecuniary liability of the Issuer nor any charge against its general credit or taxing
powers nor an indebtedness of or a loan of credit thereof within the meaning of any provision or
limitation of the State Constitution or laws, shall be payable solely from the Revenues and other
moneys pledged therefor under this Indenture, and shall be a valid claim of the respective
Owners thereof only against the Bond Fund, the Revenues and other moneys held by the Trustee
as part of the Trust Estate. The Issuer shall not be obligated to pay the purchase price of Bonds
from any source.
THE BONDS SHALL NOT BE DEEMED TO CONSTITUTE A DEBT, LIABILITY OR GENERAL
OBLIGATION OF THE ISSUER, THE STATE OR OF ANY POLITICAL SUBDIVISION THEREOF, OR A
PLEDGE OF THE FAITH AND CREDIT OF THE ISSUER, THE STATE OR OF ANY SUCH POLITICAL
SUBDIVISION, BUT SHALL BE PAY ABLE SOLELY FROM THE REVENUES AND PROCEEDS PROVIDED
THEREFOR. THE ISSUER SHALL NOT BE OBLIGATED TO PAY THE SAME NOR INTEREST THEREON
EXCEPT FROM THE REVENUES AND PROCEEDS PLEDGED THEREFOR, AND NEITHER THE FAITH
AND CREDIT NOR THE TAXING POWER OF THE ISSUER, THE STATE OR OF ANY POLITICAL
SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR THE INTEREST
ON THE BONDS.
No recourse shall be had for the payment of the principal of, or premium, if any, or
interest on any of the Bonds or for any claim based thereon or upon any obligation, covenant or
agreement contained in this Indenture, the Bonds, the Agreement or any other related documents,
against any past, present or future officer, elected official agent or employee of the Issuer, or any
incorprator, offcer, director or member of any successor corporation, as such, either directly or
through the Issuer or any successor corpration, under any rule of law or equity, statute or
constitution or by the enforcement of any assessment or penalty or otherwise, and all such
liabilty of any such incorporator, offcer, director or member as such is hereby expressly waived
and released as a condition of and in consideration for the execution of this Indenture and the
issuance of any of the Bonds.
Section 2.14. Disposal of Bonds. Upon payment of the princìpal of, premium, if any, and
interest represented thereby or trnsfer or exchange pursuant to Section 2.10 hereof or,
replacement pursuant to Section 2.12 hereof, any Bond shall be canceled and such Bond shall be
disposed of by the Registrar in accordance with its customary procdures and the Registrar shall
provide evidence satisfactory to the Company of such cancelJation and disposition.
Sectin 2.15. Book-Entr System. (a) Unless otherwise determined by the Issuer, the
Bonds shall be issued in the form of a single certificated fully-registered Bond, registered in the
name of Cede & Co., as nominee of DTC, or any successor nominee (the "Nominee"). The
actual owners of the Bonds (the "Beneficial Owners") wil not receive physical delivery of Bond
certificates except as provided herein. Except as provided in paragraph (d) below, all of the
outstanding Bonds shall be so registered in the registration books kept by the Registrar, and the
provisions of this Section shall apply thereto.
- 27-Scncs 20lOB Trust Indenture
(b) With respect to Bonds registered on the registration books kept by the Registrar in
the name of the Nominee, the Issuer, the Company, the Paying Agent, the Registrar, the Trustee
and the Remarketing Agent shall have no responsibility or obligation to any DTC Participant or
the Beneficial Owners. Without limiting the immediately preceding sentence, the Issuer, the
Company, the Paying Agent, the Registrar, the Trustee and the Remarketing Agent shall have no
responsibilty or obligation to DTC, any DTC Participant or any Beneficial Owner with respect
to (1) the accuracy of the records of DTC, the Nominee or any DTC Partcipant with respect to
any ownership interest in the Bonds, (2) the delivery by DTC or any DTC Participant of any
notice with respect to the Bonds, including any notice of redemption, or (3) the payment to any
DTC Partcipant or Beneficial Owner of any amount with respect to principal or purchase price
of, or premium, if any, or interest on, the Bonds. The Issuer, the Company, the Paying Agent,
the Registrar, the Trustee and the Remarketing Agent may treat and consider the person in whose
name each Bond is registered in the registration books kept by the Registrar as the owner and
absolute owner of such Bond for the purpse of payment of principal purchase price, premium
and interest with respect to such Bond, for the purpose of giving notices of redemption and other
matters with respect to such Bond, for the purpose of registering transfers with respect to such
Bond, and for all other purpses whatsoever. The Paying Agent shall pay all principal of and
premium if any, and interest on, the Bonds only to or upon the order of the respective Owners, as
shown in the registration books kept by the Registrar, or their respective attorneys duly
authorized in writing, and all such payments shall be valid and effective to fully satisfy and
discharge the Issuer's obligations with respect to payment of principal of, and premium, if any,
and interest on, the Bonds to the extent of the sum or sums so paid. No person other than an
Owner, as shown in the registration books kept by the Registrar, shall receive.a certficated Bond
evidencing the obligation of the Issuer to make payments of principal, premium, if any, and
interest pursuant to this Indenture.
(c) The Issuer, the Paying Agent, the Remarketing Agent and the Trustee shall
execute and deliver to DTC a letter of representations in customary form with respect to the
Bonds in book-entry form (the "DTC Representation Letter"), but such DTC Representation
Letter shall not in any way limit the provisions of the foregoing paragraph (b) or in any other
way impose upon the Issuer, the Trustee or the Paying Agent any obligation whatsoever with
respect to persons having interests in the Bonds other than the Owners, as shown on the
registration boks kept by the Registrar. The Trustee, the Remarketing Agent and the Paying
Agent shall take all action necessary for all representations of the Issuer in the DTC
Representation Letter with respect to the Trustee, the Remarketing Agent and the Paying Agent
to be complied with at all times, including but not limited to, the giving of all notices required
under the DTC Representation Letter. The Trustee and Paying Agent are hereby authorized by
the Issuer to enter into the DTC Representation Letter.
(d) DTC may determine to discontinue providing its services with respect to the Bonds
at any time by giving reasonable notice to the Issuer or the Trustee and discharging its
responsibilities with respect thereto under applicable law. The Issuer, with the consent of the
Company, may terminate the services of DTC with respect to the Bonds. Upon the
discontinuance or termination of the services of DTC with respect to the Bonds, unless a
substitute securities depository is appointed to underte the functions of DTC hereunder, the
Issuer, at the expense of the Company, is obligated to deliver Bond certificates to the Beneficial
- 28 -Series 20 lOB Trut Indenture
Owners of such Bonds, as described in this Indenture, and such Bonds shall no longer be
restricted to being registered in the registration books kept by the Registrar in the name of the
Nominee, but may be registered in whatever name or names Owners transferrng or exchanging
Bonds shall designate, in accordance with the provisions of this Indenture.
(e) Notwithstanding any other provision of this Indenture to the contrary, so long as any
Bond is registered in the name of the Nominee, all payments with respect to pnncipal or
purchase price of or, premium if any, and interest on such Bond and all notices with respect to
such Bond shall be made and given, respectively, in the manner provided in the DTC
Representation Letter. Owners shall have no lien or security interest in any rebate or refund paid
by DTC to the Paying Agent which arises from the payment by the Paying Agent of principal of,
or premium, if any, or interest on, the Bonds in immediately available funds to DTC.
(0 So long as any Bond is held in book-entry form a Beneficial Owner (through its
DTC Participant) shall give notice to the Trustee to elect to have its Bonds purchased, and shaH
effect delivery of such Bonds by causing such DTC Participant to transfer its interest in the
Bonds equal to such Beneficial Owner's interest on the records of DTC to the Trustee's
participant account with DTC. The requirement for physical delivery of the Bonds in connection
with any purchase pursuant to Section 3.01 and Section 3.02 hereof shall be deemed satisfied
when the ownership rights in the Bonds are transferred by DTC Partcipants on the records of
DTC to the Trustee's participant account.
Sectin 2.16. Credit Facilit Proviions. So long as the Credit Facility shall be in effect,
the Trustee, Registrar and Paying Agent shall observe the following provisions respecting the
Credit Facility:
(a) During such time as there is in effect a Credit Facilty that consists of a
direct pay letter of credit, the Trustee shaH draw upon the Credit Facility in accordance
with its terms in an amount which, together with moneys referred to in Section 6.03(c)(i)
and 6.03(d)(i) hereof, wil be suffcient, together with any moneys then on deposit in the
Credit Facilty Fund, to pay, on any Bond Payment Date, principal of and interest on the
Bonds. The Trustee shall draw moneys under such Credit Facility in accordance with
Section 3.06(c) hereof and in accordance with its terms to ensure timely payment thereof
to the extent necessary to pay to the Trustee the purchase price of Bonds delivered or
deemed to be delivered to the Trustee in accordance with Sections 3.01 or 3.02 hereof. In
no event shall the Trustee draw upon the Credit Facility to make any payment of
principal or purchase pnce of or interest on Pledged Bonds or Bonds held of record by or,
to the extent that the Company notified a Responsible Officer of the Trustee in wnting of
such ownership, on behalf of the Company or any subsidiary or affliate of the Company.
Immediately following a drawing under the Credit Facility and not as a condition
to such drawing, the Trustee shalJ give telephonic, electronic mail or facsimile notice to
the Company that such a drawing under the Credit Facility was made.
(b) If at any time there shall cease to be any Bonds Outstanding hereunder, the
Trustee shall promptly surrender the Credit Facility then in effect to the Provider thereof
- 29-Senes iolOB Trust Indenture
in accordance with the terms thereof and of this Indenture for cancellation. Following a
Change of Credit Facility. the Trustee shall promptly after such Change surrender the
Credit Facility which has been changed to the Provider thereof, in accordance with the
terms thereof and of this Indenture, for cancellation; provided, however, that the Trustee
shall only surrender a Credit Facilty, which consists of a direct pay letter of credit, after
all draws on such Credit Facility pursuant to Section 3.02(c) hereof have been honored by
the Provider thereof; and , provided, further, that the Trustee shall only surrender First
Mortgage Bonds in accordance with Section 5.12(c) hereof.
(c) In the event Bonds are to be purchased pursuant to Section 3.02(a)(iii)
hereof due to a Change of Credit Facilty, the notice of mandatory purchase shall be
given by the Trustee in accordance with Section 3.08 hereof. If, pnor to the fifth day
next preceding the date fixed for a mandatory purchase pursuant to Section 3.02(a)(ii)
hereof. subsequent to the giving of such notice pursuant to Section 3.08 hereof, the term
of the existing Credit Facility shall have been extended or the Company notifies the
Trustee that the delivery of an alternate Credit Facility or the termination of the then
existing Credit Facility pursuant to Section 4.07 of the Agreement shall not occur. then
the Trustee shall give notice of such extension of the term of the existing Credit Facility
or that the delivery of an alternate Credit Facility or the termination of the then existing
Credit Facility pursuant to Section 4.07 of the Agreement shall not occur, which notice
shall specify (w) that the notice of a Change of Credit Facility has been given, (x) that
subsequent to the giving of such notice the term of the existing Credit Facilty has been
extended or the Company has notified the Trustee that delivery of an alternate Credit
Facility or the termination of the existing Credit Facilty pursuant to Section 4.07 of the
Agreement shall not occur. (y) the date that the term of the Credit Facility wil expire and
(z) that the mandatory purchase for which notice was given wil not occur. Such notice
that the term of the Credit Facilty has been extended or that the Company has notified
the Trustee that delivery of an alternate Credit Facility or the termination of the then
existing Credit Facility pursuant to Section 4.07 of the Agreement shall not occur, shall
be given by the Trustee by Mail to the Owners of the Bonds not more than five days
following such extension or the receipt by the Trustee of such notice from the Company.
(d) The Trustee shall not sell, assign or otherwise transfer the Credit Facilty
or any interest in the Revenues except to a successor Trustee hereunder and in accordance
with the terms of the Credit Facility or the Agreement. as the case may be.
(e) While a book-entr system is in effect for the Bonds, the Trustee shall
give written notice of a Change of Credit Facility to DTC at least twenty (20) days pnor
to the effective date of the Change of Credit Facility. In the event that notice cannot be
given within such twenty-day period, the Trustee shall provide such notice as soon as
practicable.
(f) If the Credit Facilty then in effect shall be an insurance policy, in addition
to those nghts granted the Provider under this Indenture. the Provider shall, to the extent
it makes payment of principal of or interest on the Bonds, become subrogated to the
rights of the recipients of such payments in accordance with the terms of the Credit
- 30-Series 2010B Trust Indentre
Facility, and to evidence such subrogation (i) in the case of subrogation as to claims for
past due interest, the Registrar shall note the Provider's rights as subrogee on the
registration books of the Issuer maintained by the Registrar upon receipt from the
Provider of proof of the payment of interest thereon to the Owners, and (ii) in the case of
subrogation as to claims for past due principal, the Registrar shall note the Provider's
rights as subrogee on the registration books of the Issuer maintained by the Registrar
upon surrender of the Bonds by the Owners thereof, together with proof of the payment
of principal thereof.
Section 2.17. CUSIP Numbers. The Issuer in issuing the Bonds may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Owners; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Bonds or as
contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Bonds, and any such redemption shaH not be affected by
any defect in or omission of such numbers. The Issuer or the Company wil promptly notify the
Trustee and the Registrar of any change in any CUSIP number(s).
Neither the Issuer, the Registrar nor the Trustee shall have any responsibility for any
defect in the CUSIP number that appears on any Bond, check, advice of payment or redemption
notice, and any such document may contain a statement to the effect that CUSIP numbers have
been assigned by an independent service for convenience of reference and that neither the Issuer,
the Registrar nor the Trustee shall be liable for any inaccuracy in such matters.
ARTICLE III
PURCHASE AND REMARKETING OF BONDS
Sectin 3.01. Owners Optin to Tender for Purchae. (a) Daily Interest Rate Period.
During any Daily Interest Rate Period, any Bond or portion thereof in an Authonzed
Denomination shall be purchased at the option of the Owner thereof on any Business Day at a
purchase price equal to 100 of the principal amount thereof plus accrued interest, if any, from
the Interest Payment Date next preceding the date of purchase to the date of purchase (unless the
date of purchase shall be an Interest Payment Date, in which case the purchase pnce shall be
equal to the pnncipal amount thereof), upon (i) delivery to the Trustee at the Delivery Office of
the Trustee and to the Remarketing Agent at the Principal Ofce of the Remarketing Agent, hy
no later than 10:00 a.m., New York, New York time, on such Business Day, of an irrevocable
written notice (which may be by facsimile or other wnting) which states the principal amount
and certificate number (if the Bonds are not then held in bok-entry form) of such Bond and the
date on which the same shall be purchased, and (ii) subject to Section 2.15(1) hereof and the last
paragraph of Section 3.03 hereof, delivery of such Bond tendered for purchase to the Trustee at
the Delivery Office of the Trustee, accompanied by an instrument of transfer thereof in a form
satisfactory to the Trustee, executed in blank by the Owner thereof with the signature of such
Owner guaranteed by a member or partcipant in a "signature guarantee program" as provided
in the form of assignment attached to such Bond, at or prior to 1:00 p.m., New York, New York
- 31 -Series 20lOB Trust Indentue
time, on the purchase date. The Trustee shall keep a written record of each notice described in
clause (i) above.
(b) Weekly Interest Rate Period. During any Weekly Interest Rate Period, any Bond or
porton thereof in an Authorized Denomination shall be purchased at the option of the Owner
thereof on any Business Day at a purchase price equal to 100% of the principal amount thereof
plus accrued interest, if any, from the Interest Payment Date next preceding the date of purchase
to the date of purchase (unless the date of purchase shall be an Interest Payment Date, in which
case the purchase price shall be equal to the principal amount thereof), upon (i) delivery to the
Trustee at the Delivery Ofce of the Trustee, with a copy to the Remarketing Agent at the
Principal Offce of the Remarketing Agent, of an irrevocable written notice (which may be by
facsimile or other writing), by 5:00 p.m., New York, New York time, on any Business Day,
which states the principal amount of such Bond and the certificate number (if the Bonds are not
then held in book-entry form) and the date on which the same shall be purchased, which date
shall not be prior to the seventh day next succeeding the date of the delivery of such notice to the
Trustee, and (ii) subject to Section 2.15(f) hereof and the last paragraph of Section 3.03 hereof,
delivery of such Bond to the Trustee at the Delivery Office of the Trustee, accompanied by an
instrument of transfer thereof in a form satisfactory to the Trustee, executed in blank by the
Owner thereof with the signature of such Owner guaranteed by a member or participant in a
"signature guarantee program" as provided in the form of assignment attached to such Bond, at
or prior to 1:00 p.m., New York, New York time, on the purchase date. The Trustee shall keep a
written record of each notice described in clause (i) above.
(c) Term Interest Rate Period. Any Bond or portion thereof in an Authorized
Denomination shall be purchased at the option of the Owner thereof on the first day of any Term
Interest Rate Period which is preceded by a Term Interest Rate Period of equal duration at a
purchase price equal to 100% of the principal amount thereof upon (x) delivery to the Trustee at
the Delivery Ofce of the Trustee, with a copy to the Remarketing Agent at the Prncipal Office
of the Remarketing Agent, of an irrevocable notice in writing by 5:00 p.m., New York, New
York time, on any Business Day not less than fifteen days before the purchase date, which states
the principal amount and certificate number (if the Bonds are not then held in bok-entry form)
of such Bond to be purchased, and (y) subject to Section 2.15(f) hereof and the last paragraph of
Section 3.03 hereof delivery of such Bond to the Trustee at the Delivery Ofice of the Trustee,
accompanied by an instrment of transfer thereof in a form satisfactory to the Trustee, executed
in blank by the Owner thereof with the signature of such Owner guaranteed by a member or
participant in a "signature guarantee program" as provided in the form of assignment attached
to such Bond, at or prior to 1:00 p.m. New York, New York time, on the purchase date. The
Trustee shall keep a wntten record of each notice described in clause (x) above.
(d) If any Bond is to be purchased in part pursuant to Section 3.01(a), Section 3.01(b)
or Section 3.01 (c) hereof, the amount so purchased and the amount not so purchased must each
be an Authorized Denomination.
Sectin 3.02. Mandatory Purchase. (a) The Bonds shall be subject to mandatory
purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued interest,
- 32-Series 2010B Trust Indnture
if any, to the purchase date described below, upon the occurrence of any of the events stated
below:
(i) as to any Bond, on the effective date of any change in a Rate Period with
respect to such Bond, other than the effective date of a Term Interest Rate Period which
was preceded by a Term Interest Rate Period of the same duration;
(ii) as to each Bond in a Aexible Interest Rate Period, on the Business Day
next succeeding the last day of any Rexible Segment with respect to such Bond;
(iii) as to any Bond, on the date set forth in any notice of a Change of Credit
Facility given by the Company pursuant to Section 4.07(b) of the Agreement, which shall
be a date that is on or before the effective date of such Change of Credit Facilty;
provided, however, that if such Change of Credit Facility consists of the tennination of
the then existing Credit Facility, the purchase date shall be the Business Day immediately
preceding such termination; provided, further, that if the Bonds are then subject to
optional redemption pursuant to Section 4.02(b)(ii), the purchase price shall include any
premium that would have been payable upon such redemption had the Bonds been
redeemed;
(iv) as to any Bond, if the Credit Facility then in effect consists of a direct pay
letter of credit, on the second Business Day following the day that the Trustee receives
notice from the Provider that, following a drawing on such Credit Facility on an Interest
Payment Date for the payment of unpaid interest on the Bonds, such Credit Facility wil
not be reinstated in accordance with its terms;
(v) as to any Bond, if a Credit Facility is in effect, on the second Business
Day following the day that the Trustee receives notice from the Provider directing such
mandatory purchase upon the occurrence and continuance of an event of default under
the Credit Facility Agreement; or
(vi) as to each Bond in a Daily Interest Rate Penod or a Weekly Interest Rate
Period, on any Business Day designated by the Company, with the consent of the
Provider and the Remarketing Agent.
(b) When Bonds are called for redemption pursuant to Section 4.02(b)(iii) hereof and if
the Company gives notice to the Trustee on or before the Business Day prior to the redemption
date that the Company elects to have the Bonds purchased in lieu of redemption, all or any
portion of the Bonds that the Company elects to purchase shall be subject to mandatory purchase
on such redemption date at a purchase price equal to 100% of the principal amount thereof plus
an amount equal to any premium that would have been payable upon such redemption had the
Bonds been redeemed. If the Bonds are purchased in lieu of redemption on or prior to the
applicable Record Date, the purchase price shall include accrued interest from the Interest
Payment Date next preceding the date of purchase to the date of purchase (unless the date of
purchase shaH be an Interest Payment Date, in which case the purchase price shall be equal to the
- 33-Series 20 lOB Truilndenlure
amount specified in the preceding sentence). If the Bonds are purchased in lieu of redemption
after such Record Date, the purchase price shaH not include accrued interest.
(c) The Trustee shall by 3:00 p.m., New York, New York time, on the Business Day
preceding the day that the Bonds are subject to mandatory purchase pursuant to Section
3.02(a)(iii) draw on the then existing Credit Facilty in an amount sufficient to pay the principal
and interest which wil be due on the purchase date and bold such amount uninvested and
without any liability for interest until the purchase date when such amount shaH be applied to pay
the amounts due to the Owners of the Bonds on the purchase date.
(d) The Trustee shaH, if the Credit Facility then in effect consists of a direct pay letter
of credit, (i) immediately following receipt of notice from the Provider pursuant to Section
3.02(a)(iv) or (ii) by 3:00 p.m., New York, New York time, on the Business Day preceding the
day that the Bonds are subject to mandatory purchase pursuant to Section 3.02(a)(v), draw on
that Credit Facility in an amount suffcient to pay the principal and interest which wil be due on
the purchase date and hold such amount uninvested and without any liabilty for interest until the
purchase date when such amount shall be applied to pay the amounts due to the Owners of the
Bonds on the purchase date.
Sectin 3.03. Payment of Purchae Prie. If Bonds are to be purchased pursuant to
Section 3.01 or Section 3.02, the Trustee shall pay the purchase price of such Bonds but solely
from the following sources in the order of priority indicated, and the Trustee shall not have any
obligation to use funds from any other source:
(a) moneys which constitute Available Moneys and are furnished by the
Company to the Trustee pursuant to Section 8.02 of the Agreement for purchase of
Bonds;
(b) proceeds of the remarketing and sale of such Bonds (other than Bonds sold
to the Company, any subsidiary or guarantor of the Company, or the Issuer or any
"insider" (as defined in the United States Bankrptcy Code)) pursuant to Section 3.04
hereof and which proceeds are on deposit with the Trustee prior to 12:00 noon New
York, New York time, on the purchase date;
(c) moneys (which constitute A vailable Moneys or moneys provided pursuant
to a Credit Facility on which neither the Company nor any affiiate thereof is the obligor
for the payment of the purchase price of the Bonds) furnished to the Trustee pursuant to
Article VII hereof, such moneys to be applied only to the purchase of Bonds which are
deemed to be paid in accordance with Article VII hereof;
(d) moneys furnished to the Trustee representing moneys provided pursuant to
a Credit Facilty on which neither the Company nor any affiliate thereof is the obligor for
the payment of the purchase price of the Bonds; and
- 34-Series20lOB Trust Indeniure
(e) any other moneys furnished by or on behalf of the Company to the Trustee
for purchase of the Bonds, including, without lìrnitation, any moneys from Additional
Collateral;
provided, however, that funds for the payment of the purchase price of Bonds which are deemed
to be paid in accordance with Artcle VII hereof shall be derived only from the sources
described in Section 3.03(c); providd, further, that if the Credit Facilty then in effect consists of
a direct pay letter of credit, the Trustee shall pay the purchase price of the Bonds,first, from
moneys descnbed in clause (b) above, second, and only to the extent such moneys were provided
pursuant to the Credit Facì1ty, from moneys described in clause (c) above, third, from moneys
described in clause (d) above, and last, from the remaining sources and in the order of priority of
such remaining sources descnbed above.
Subject to Section 2.15 hereof, the Registrar shall register new Bonds as directed by the
Remarketing Agent and make such Bonds available for delivery on the date of such purchase.
Payment of the purchase price of any Bond shall be made in immediately available funds for
Bonds in a Aexible, Daily, Weekly or Term Interest Rate Period (subject to Section 2.15(f)
hereof) in each case only upon presentation and surrender of such Bond to the Trustee.
If moneys sufficient to pay the purchase price of Bonds to be purchased pursuant to
Section 3.01 or Section 3.02 hereof shall be held by the Trustee on the date such Bonds are to be
purchased, such Bonds shall be deemed to have been purchased and shall be purchased
according to the terms hereof, for all purposes of this Indenture, irrespective of whether or not
such Bonds shall have been delivered to the Trustee, and the former Owner of such Bonds shall
have no claim under this Indenture or otherwise, for any amount due with respect to such Bonds
other than the purchase pnce thereof.
Section 3.04. Remarketing of Bonds by Remarketing Agent. (a) Whenever any Bonds
are subject to purchase pursuant to Section 3.01 or Section 3.02 hereof, the Remarketing Agent
shall offer for sale and use its best efforts to remarket such Bonds to be so purchased, any such
remarketing to be made at a price equal to 100% of the principal amount thereof, plus accrued
interest, if any, to the purchase date. The Company may, with the consent of the Provider, direct
the Remarketing Agent from time to time to cease and to resume sales efforts with respect to
some of or all of the Bonds.
(b) The Rernarketing Agent shall continue. its efforts to remarket any Pledged Bonds
without the Provider having tendered such Bonds, and any failure to timely pay principal of and
interest on such Pledged Bonds to the Provider shall not constitute an Event of Default
hereunder. Upon the remarketing of Pledged Bonds, the Remarketing Agent shall immediately
provide telephonic notice, promptly confrmed in writing, of such remarketing to the Company
and the Provider and electronic mail or facsimile notice to the Trustee, specifying in said notice
the aggregate principal amount, the purchase price (which shall include any accrued interest), the
purchase date and the purchaser thereof, and thereupon the Trustee or the Provider, whichever
has possession of such Bonds, shall, subject to Section 3.06a)(ii) hereof, immediately release
such Bonds to the Trustee.
- 35-Series 2010B Trust IndenlUre
(c) If the Remarketing Agent is remarketing the Bonds after the date notice has been
given of the redemption of such Bonds pursuant to Section 4.02 or 4.03 hereof (and prior to the
redemption date thereof), the Remarketing Agent shall provide to the Trustee the names of the
Persons to whom the Bonds are being remarketed so that the Trustee can provide the notice
required by Section 3.05(a) hereof.
(d) Promptly, but in no event later than 11:30 a.m., New York, New York time, on the
Business Day following the day on which the Trustee receives notice from any Owner of its
demand to have the Trustee purchase Bonds pursuant to Section 3.01(b) or Section 3.01(c)
hereof, the Trustee shall give facsimile, electronic mail or telephonic notice, confrmed in writing
thereafter, to the Remarketing Agent specifying the principal amount of Bonds which such
Owner has demanded to have purchased and the date on which such Bonds are demanded to be
purchased.
Section 3.05. Limit on Remarketing. Any Bond purchased pursuant to Sections 3.01
and 3.02 hereof from the date notice is given of redemption pursuant to Sections 4.02 and 4.03
hereof through the date of such redemption shall not be remarketed unless the Person buying
such Bonds has been given notice in writing by the Trustee that such Bonds are to be redeemed.
Furthermore, in addition to the requirements of the preceding sentence, if the Bonds are subject
to redemption pursuant to Section 4.03 hereof, the Person buying such Bonds shall also be given
notice in writing by the Trustee that a Determination of Taxability has occurred and that such
Bonds are subject to mandatory redemption pursuant to Section 4.03 hereof.
Section 3.06. Delivery of Bond; Delivery of Proceeds of Remarketing Sale; Payments
from Credit Facilit.
(a) DELIVERY OF BONDS. Bonds purchased pursuant to Section 3.01 or Section 3.02
hereof shall be delivered as follows:
(i) Delivery of Remarketed Bonds. Subject to Section 2.15 hereof, Bonds
remarketed by the Remarketing Agent pursuant to Section 3.04 hereof shaH be delivered
to the purchasers thereof upon payment of the purchase price therefor.
(ii) Delivery of Bonds Purchased by the Company. Bonds delivered to the
Trustee and purchased with moneys furnished by the Company shall at the direction of
the Company, be (A) held by the Trustee for the account of the Company, (B) delivered
to the Trustee for cancellation or (C) delivered to the Company.
(iii) Delivery ofP/edged Bonds. Bonds delivered to the Trustee and purchased
with moneys provided pursuant to a Credit Facility, which consists of a direct pay letter
of credit, shall constitute piedge~ Bonds, and shall be held by the Trustee for the benefit
of the Provider in a separate and segregated account to be designated as the "City of
Forsyth, Montana, Pollution Control Revenue Refunding Bonds (A vista Corporation
Co/strip Project), Series 2010B - Custody Account" (the "Custody Account").
Notwithstanding anything herein to the contrary, if the Trustee holds Pledged Bonds in
the Custody Account as agent of the Provider, the Trustee shall not release to the
- 36-Series 2010B Trust Indnture
purchaser thereof or to the Remarketing Agent Pledged Bonds remarketed pursuant to
Section 3.04b) hereof unless the Trustee shall have received written notice (which may
be given by electronic mail or facsimile) from the Provider that it has been paid in full for
the Pledged Bonds and that such Credit Facility has been reinstated. The Trustee wil
comply with any DTC procedures applicable to the Pledged Bonds.
(iv) Delivery of De/eased Bonds. Bonds purchased by the Remarketing Agent
with moneys described in Section 3.03(c) hereof shall not be remarketed and shall be
delivered to the Trustee for cancellation.
(b) REGISTRATION OF DELIVERED BONDS. Bonds delivered as provided lD this
Section 3.06 shall be registered in the manner directed by the recipient thereof.
(c) NOTICE OF FAILED REMARKING. In the event that any Bonds are not
remarketed, the Remarketing Agent shall notify the Company by telephone, promptly confirmed
in writing by facsimile, and the Trustee in writing (which may be delivered by facsimile) no later
than 11:15 a.m., New York, New York time, on any day on which Bonds are delivered or
deemed delivered for purchase under this Indenture, of the aggregate principal amount of Bonds
not remarketed on such date and the aggregate principal amount of Bonds remarketed on such
date but for which the purchase price has not been paid (which Bonds for purposes of this
Indenture shall be considered to not be remarketed), as follows:
(i) Such notice to the Company shall be given to the Prncipal Office of the
Company, as follows:
A vista Corpration
1411 East Mission Avenue
Spokane, VVashington 99220
Attention: Treasurer
Telephone: [phone]
Facsimile: [phone]
The Company may, by notice given in accordance with Section 13.08 hereof to the
Remarketing Agent and the Trustee, designate any further or different addresses to which
subsequent such notices may be given.
(ii) Such notice to the Trustee shall be given to the Trustee, as follows:
- 37-Series 20lOB Trust Indenture
The Bank of New York Mellon Trust Company, N.A.
Two Union Square, Suite 520
60 1 Union Street
Seattle, Washington 98101-2321
Attention: Corporate Trust Administration
Telephone: [phone]
Facsimile: [phone]
The Trustee may, by notice given in accordance with Section 13 .08 hereof to the
Company and the Trustee, designate any further or different addresses to which subsequent such
notices may be given.
If the Credit Facility then in effect consists of a direct pay letter of credit, after the receipt
of such notice or if the Trustee has not received such notice by such time, the Trustee shall, by
12:00 noon, New York, New York time, on the purchase date, take the action specified in such
Credit Facility to the extent necessary, after taking into account moneys referred to in
Section 3.03(a), Section 3.03(b) and Section 3.03(c) hereof, as the case may be, to receive the
moneys required to pay the purchase pnce of such Bonds.
(d) PROCEEDS OF SALE HELD FOR SELLER OF BONDS. Moneys deposited with the
Trustee for the purchase of Bonds pursuant to Section 3.01 and Section 3.02 hereof shall be held
uninvested in trst in one or more separate accounts, which shall be Eligible Accounts, and shall
be paid to the former Owners of such Bonds upon presentation thereof. The Trustee shall notify
the Company in wnting within five days after the date of purchase if the Bonds have not been
delivered, and if so directed by the Company, shall give notice by Mail to each Owner whose
Bonds are deemed to have been purchased pursuant to Section 3.01 and Section 3.02 hereof
stating that interest on such Bonds ceased to accrue on the date of purchase and that moneys
representing the purchase pnce of such Bonds are available against delivery thereof at the
Delivery Offce of the Trustee. Bonds deemed purchased pursuant to Section 3.01 and
Section 3.02 hereof shall cease to accrue interest on the date of purchase. The Trustee shall hold
moneys deposited for the purchase of Bonds without liability for interest thereon, for the benefit
of the former Owner of the Bond on such date of purchase, who shall thereafter be restrcted
exclusively to such moneys for any claim of whatever nature on its part under this Indenture or
on, or with respect to, such Bond. Any moneys so deposited with and held by the Trustee not so
applied to the payment of Bonds within six months after such date of purchase shall be paid by
the Trustee to the Company upon the wntten direction of an Authorized Company
Representative, and thereafter the Trustee shall have no further liability with respect to such
moneys and the former Owners shall be entited to look only to the Company for payment, and
then only to the extent of the amount so repaid to the Company, and the Company shall not be
liable for any interest thereon and shall not be regarded as a trustee of such money.
Sectin 3.07. No Remarketing Sales After Certain Events. Anything in this Indenture to
the contrary notwithstanding, there shall be no sales of Bonds pursuant to a remarketing in
accordance with Section 3.04 hereof, if (a) there shall have occurred and not have been cured or
waived an Event of Default described in Section 9.01(a), Section 9.0l(b) or Section 9.01(c)
hereof of which an authorized officer in the Prncipal Offce of the Remarketing Agent and an
- 38-Series 2010B Trost Indenture
authorized officer of the corprate trst deparment of the Trustee have actual knowledge or (b)
the Bonds have been declared to be immediately due and payable pursuant to Section 9.02 hereof
and such declaration has not been rescinded pursuant to Section 9 .02( d) hereof.
Sectin 3.08. Notice of Mandatory Purchae. (a) The Trustee shall give notice by Mail
of a proposed Change of Credit Facility pursuant to Section 4.07(b) of the Agreement and
mandatory purchase of the Bonds to the Owners not less than 15 days prior to the effective date
of such Change of Credit Facilty. In addition to the requirement of Section 3 .08(f), the notice of
mandatory purchase shall (i) describe the proposed Change of Credit Facility (subject to the
Company's ability to rescind its election to make such Change of Credit Facility) and (ii) state
the effective date of such Change of Credit Facility.
(b) The Trustee shall, as son as practicable, but in no event later than one Business
Day prior to the date the Bonds are subject to mandatory purchase pursuant to Section 3.02(a)(iv)
or (v), give written notice by electronic mail, by facsimile or by overnight mail service of a
mandatory purchase of Bonds pursuant to Section 3.02(a)(iv) or (v) to the Remarketing Agent
and to the Owners.
(c) The Trustee shall give notice by Mail of an election by the Company to trigger a
mandatory purchase pursuant to Section 3.02(a)(vi) hereof to the Owners not less than 15 days
prior to the date designated by the Company for such mandatory purchase.
(d) The Trustee shall give notice by Mail of a mandatory purchase pursuant to
Section 3.02(a)(ii) hereof to the Owners not less than 15 days prior to the last day of the
applicable Flexible Segment.
(e) The Trustee shall give notice by Mail of a mandatory purchase in accordance with
the provisions of Section 2.02(f).
(f) Each notice of a mandatory purchase shall (i) state the purchase date, (ii) identify
the particular clause of Section 3.02(a) that triggers the mandatory purchase, (iii) describe the
procedures for such mandatory purchase, (iv) state the purchase price of such Bonds on such date
(expressed as a percentage of the principal amount thereof), (v) state that the Owners of such
Bonds do not have the right to retain their Bonds on such date, and (vi) state such other matters
as the Company may direct.
Section 3.09. Pledged Bonds. If a beneficial interest in a Bond is purchased with moneys
drawn under a Credit Facility, which consists of a direct pay letter of credit, pursuant to the
provisions hereof, that beneficial interest shall be designated on the boks of the Remarketing
Agent as a Pledged Bond until released as herein provided. Provided there is no Event of
Default under this Indenture, the Remarketing Agent shaH use its best effort to remarket
beneficial interests in Pledged Bonds. If the Remarketing Agent remarkets any beneficial
interest in a Pledged Bond, the Remarketing Agent shan give notice by electronic mail or
facsimile to the Provider of such remarketing, and shall direct the purchaser of such beneficial
interest to transfer, by 12:00 noon, New York, New York time, on the purchase date, the
purchase price of such remarketed beneficial interest to the Trustee for deposit into the Custody
- 39-Series 20l0BTrust Indenture
Account. The Trustee shaJ) immediately give notice by electronic mail or facsimile to the
Provider and the Remarketing Agent of the receipt of the purchase pnce for such beneficial
interest in such Pledged Bond, which notice shall also request the Provider promptly advise the
Trustee and the Company of amounts that remain due and owing to the Provider pursuant to the
Credit Facility Agreement as a result of a draw on such Credit Facility. Upon receipt by the
Trustee of such purchase pnce and written notice (which may be given by electronic mail or
facsimile) from the Provider of the reinstatement of such Credit Facility, such Pledged Bond
shall be considered released from the pledge to the Provider. The Trustee shall immediately
transfer such purchase pnce to the Provider upon receipt thereof to the extent that amounts
remain due and owing the Provider pursuant to the Credit Facility Agreement as a result of a
draw on such Credit Facility and give all required notices, in accordance with the terms of such
Credit Facility. If moneys remain on deposit with the Trustee in the Custody Account after
payment is made to the Provider of all amounts due and owing to the Provider in accordance
with the preceding sentence, such moneys shaH be paid to, or upon the order of, the Company.
If the Bonds are no longer held in a bok-entr only system and a Bond is purchased with
moneys drawn under a Credit FaciJity that consists of a direct pay letter of credit, hereunder, that
Bond shall be delivered to and held by the Trustee in the Custody Account. Any Bond so
delivered to the Trustee shall be registered in the name of the Company, or, at the request of the
Provider, in the name of the Provider or its nominee, and shall thereafter constitute a Pledged
Bond until released as herein provided. Provided there is no Event of Default under this
Indenture, the Remarketing Agent shall use its best efforts to remarket Pledged Bonds. If the
Remarketing Agent remarkets any Pledged Bond, the Remarketing Agent shaH give notice by
electronic mail or facsimile to the Provider of such remarketing and shall direct the purchaser of
such Pledged Bond to transfer, by 12:00 noon, New York, New York time, on the purchase date,
the purchase pnce of such remarketed Pledged Bond to the Trustee for deposit into the Custody
Account. The Trustee shall immediately give notice by electronic mail or facsimile to the
Provider of the receipt of the purchase price for such Pledged Bond, which notice shall also
request the Provider promptly advise the Trustee and the Company of amounts that remain due
and owing to the Provider pursuant to the Credit Facility Agreement as a result of a draw on such
Credit Facility. Upon receipt by the Trustee of such purchase price and wntten notice (which
may be given by electronic mail or facsimile) from the Provider that such Credit Facilty has
been reinstated, such Pledged Bond shall be considered released from the pledge of the Provider.
The Trustee shall transfer such purchase pnce to the Provider upon receipt thereof to the extent
that amounts remain due and owing to the Provider pursuant to the Credit Facilty Agreement as
a result of a draw on such Credit Facility and give all required notices, in accordance with the
terms of such Credit Facilty. If moneys remain on deposit with the Trustee in the Custody
Account after payment is made to the Provider of all amounts due and owing to the Provider in
accordance with the preceding sentence, such moneys shall be paid to, or upon the order of, the
Company. The Trustee shall deliver the remarketed Pledged Bonds to the purchasers thereof in
accordance with Section 3.06a)(i) hereof.
To the extent amounts are due and owing to the Provider under the Credit Facility
Agreement, the proceeds of the remarketing of Pledged Bonds (or beneficial interests therein)
shall be deposited into the Custody Account and held by the Trustee for the account of, and
-40-Series 20108 Trust Indenture
solely for, the Provider, shall not be commingled with any other moneys held by the Trustee, as
appropnate, and shall be paid over immediately to the Provider.
On each Interest Payment Date pnor to the release of Pledged Bonds (or beneficial
interests therein) held by the Remarketing Agent or by the Trustee, the Trustee shall (i) if the
Bonds are held in a book-entry only system, cause the Remarketing Agent to notify DTC that the
Remarketing Agent has waived payment on such Interest Payment Date with respect to such
Pledged Bonds, and that the Trustee shall be paying the Provider with respect thereto directly
from the Bond Fund, and (ii) whether or not the Bonds are held in a book-entry only system,
apply moneys on deposit in the Bond Fund to the payment of the principal of and interest on
such Pledged Bonds through direct transfer thereof to the Provider (receipt of which payment
shall promptly be acknowledged by the Provider by notice by electronic mail of facsimile to the
Trustee and the Remarketing Agent). Under no circumstances shall the Trustee either (i) draw
on the Credit Facility or use moneys in the Credit Facilty Fund for purposes of making any
payment with respect to Pledged Bonds, or (ii) apply moneys on deposit in the Bond Fund for
transfer to DTC in payment of any Pledged Bond.
It is recognized and agreed by the Remarketing Agent and the Trustee that each Pledged
Bond (or beneficial interest therein) is held for the benefit of the Provider pursuant to the terms
of the Credit Facility Agreement.
If any Bonds constitute Pledged Bonds due to a failure in remarketing such Bonds on a
mandatory tender date, the Remarketing Agent shan be entitled to determine a new Daily Interest
Rate, Weekly Interest Rate or Aexible Interest Rate with respect to such Bonds, as appropnate
(under the conditions and subject to the limitations provided above), effective on such date as the
Remarketing Agent is able to remarket such Pledged Bonds in whole. Such new rate with
respect to such Bonds shall be established by the Remarketing Agent in its sole judgment having
due regard for prevailng financial market conditions at the lowest rate which wil permit the
Pledged Bonds to be sold at a price of par plus accrued interest to such delivery date. The
determination of a new Daily Interest Rate, Weekly Interest Rate or Aexible Interest Rate with
respect to such Bonds, as appropnate, by the Remarketing Agent shall be conclusive and binding
upon the Issuer, the Company, the Trustee. the Provider and the Owners of the Bonds.
ARTICLE iv
REDEMPTON OF BONDS
Sectin 4.01. Redemption of Bonds Generally. (a) The Bonds are subject to redemption
if and to the extent the Company is entitled or required to make and makes a prepayment
pursuant to Article VII of the Agreement. Except as specifically provided in Section 4.03
hereof, the Trustee shall not give notice of any redemption under Section 4.05 hereof unless the
Company has so directed in accordance with Section 8.01 of the Agreement; provided that the
Trustee may require prepayment of Loan Payments under Section 4.01 of the Agreement in the
case of mandatory redemption.
- 41 -Series 20lOB Trust Indenture
Sectin 4.02. Redemption Upon Optinal Prepayment. (a) The Bonds shall be
redeemed in whole or in part, and if in part by lot. at any time at a redemption pnce equal to
100% of the principal amount thereof plus accrued interest to the redemption date, upon receipt
by the Trustee of a wntten notice from the Company stating that any of the following events has
occurred and that the Company therefore intends to exercise its option to prepay the payments
due under the Agreement in whole or in part pursuant to Section 8.01 of the Agreement and
thereby effect the redemption of Bonds in whole or in part to the extent of such prepayments:
(i) the Company shall have determined or concurred in a determination that
the continued operation of the Plant is impracticable, uneconomical or undesirable for
any reason;
(ii) all or substantially all of the Plant shall have been condemned or taken by
eminent domain;
(iii) the operation of the Plant shall have been enjoined or shall have otherwise
been prohibited by, or shall confict with, any order, decree, rule or regulation of any
court or of any federal, state or local regulatory body, administrtive agency or other
governmental body;
(iv) unreasonable burdens or excessive liabilities shall have been imposed
upon the Company in respect of all or a part of the Pollution Control Facilities or the
Plant including, without limitation. federal, state or other ad valorem, propert, income or
other taxes not being imposed on the date of the Agreement, as well as any statute or
regulation enacted or promulgated after the date of the Agreement that prevents the
Company from deducting interest in respect of the Agreement for federal income tax
purposes; or
(v) all or substantially all of the Project shall be transferred or sold to any
entity other than an affliate of the Company.
(b) The Bonds shall be subject to redemption in whole, or in part by lot, prior to their
matunty, following receipt by the Issuer and the Trustee of a written notice from the Company
pursuant to Section 8.01 of the Agreement and upon prepayment of the Loan Payments at the
option of the Company. as follows:
(i) While the Bonds bear interest at a Flexible Interest Rate or Rates, each
Bond shall be subject to such redemption on the day next succeeding the last day of each
Flexible Segment for such Bond at a redemption pnce equal to 100% of the pnncipal
amount thereof plus accrued interest, if any, to the redemption date.
(ii) While the Bonds bear interest at a Daily Interest Rate or a Weekly Interest
Rate, the Bonds shall be, with the consent of the Provider, subject to such redemption on
any Business Day at a redemption pnce equal to 100% of the pnncipal amount thereof
plus accrued interest, if any, to the redemption date.
- 42-Series 2010B Trust Indenture
(ii) While the Bonds bear interest at a Term Interest Rate, the Bonds shall be
subject to such redemption (1) on the day next succeeding the last day of each Term
Interest Rate Period at a redemption price equal to the principal amount of the Bonds
being redeemed plus accrued interest, if any, to the redemption date and (2) either (A) on
the redemption dates and at the redemption pnces specified by the Company pursuant to
Section 4.02(c) hereof or (B) during the redemption periods specified below, in each case
in whole or in part, at the redemption pnces (expressed as percentages of principal
amount) hereinafter indicated plus accrued interest, if any, to the redemption date:
LENGTH OF TER
INTERE RATE PERIOD REDEMVfION DATES AND PRICES
Greater than or equal to 11 years At any time on or after the first day of the
calendar month following the tenth anniversary
of the effective date at 102% declining 1%
annually to 100%
Less than 1 1 year Not redeemable
(c) With respect to any Term Interest Rate Period, the Company may specify, pursuant
to Section 2.05(c), redemption provisions, prices and periods other than those set forth above;
provided however, at the time of such specification, the Company shall provide Favorable
Opinion of Bond Counsel with respect to such changes in redemption dates and prices.
Sectin 4.03. Redemptin Upon Mandory Prepayment. The Bonds shall be subject to
mandatory redemption in whole on any date from amounts which are to be prepaid by the
Company under Section 8.03 of the Agreement, at a redemption pnce equal to 100% of the
principal amount thereof plus interest accrued, if any, to the redemption date within one hundred
eighty (180) days following a Determination of Taxabilty; provided that if, in the opinion of
Bond Counsel delivered to the Trustee, the redemption of a specified portion of the Bonds
outstanding would have the result that interest payable on the Bonds remaining outstanding after
such redemption would remain Tax-Exempt, then the Bonds shall be redeemed in part by lot (in
Authorized Denominations), in such amount as Bond Counsel in such opinion shall have
determined is necessary to accomplish that result.
Sectin 4.04. Selection of Bonds for Redemptin. If less than all of the Bonds are called
for redemption the Trustee shall select the Bonds or any given portion thereof to be redeemed,
from the outstanding Bonds or such given portion thereof not previously called for redemption,
by lot. For the purpse of any such selection the Trustee shall (to the extent practicable) assign a
separate number for each minimum Authorized Denomination of each Bond of a denomination
of more than such minimum; provided that, following any such selection, both the porton of
such Bond to be redeemed and the porton remaining shall be in Authorized Denominations. The
Trustee shall promptly notify the Issuer and the Company in writing of the numbers of the Bonds
or portons thereof so selected for redemption. Notwithstanding the foregoing provisions,
Pledged Bonds shall be redeemed prior to any other Bonds.
-43 -Senes 20lOB Trust Indenture
Section 4.05. Notice of Redemption. (a) The Trustee. for and on behalf of the Issuer.
shall give notice of the redemption of any Bond by Mail. postage prepaid. not less than twenty
(20) nor more than sixty (60) days prior to the redemption date, to the Owner of such Bond at the
address shown on the registrtion books of the Registrar on the date such notice is mailed and to
the Remarketing Agent, any Provider, Moody's, S&P, the Securities Depositones, one or more
of the Information Services and the Company Mortgage Trustee; provided. however, that failure
to duly give notice by Mail to any Owner shall not affect the validity of any proceedings for the
redemption of Bonds in respect of which no such failure has occurred. While the Bonds are held
by DTC as Owner of the Bonds, notice of redemption shall be given to DTC in accordance with
the DTC Representation Letter or in accordance with the requirements of DTC instead of being
given by Mail. Notice of redemption to the Securities Depositories and the Information Services
shall be given by registered maiL. Each notice of redemption shall state the date of such notice,
the date of issue of the Bonds to be redeemed, the redemption date, the redemption price, the
place of redemption (including the name and appropriate address or addresses of the Paying
Agent), the source of the funds to be used for such redemption, the principal amount. the CUSIP
number (if any) of the maturity and, if less than all, the distinctive certficate numbers of the
Bonds to be redeemed and, in the case of Bonds to be redeemed in part only, the respective
portions of the pnncipal amount thereof to be redeemed. Each such notice shaH also state that
the interest on the Bonds designated for redemption shall cease to accrue from and after such
redemption date and that on said date there wil become due and payable on each of said Bonds
the principal amount thereof to be redeemed, interest accrued thereon, if any, to the redemption
date and the premium, if any, thereon (such premium to be specified) and shall require that such
Bonds be then surrendered at the address or addresses of the Paying Agent specified in the
redemption notice. Notwithstanding the foregoing, failure by the Trustee to give notice pursuant
to this Section 4.05 to the Company Mortgage Trustee or to anyone or more of the Information
Services or Securities Depositories or the insuffciency of any such notices shall not affect the
suffciency of the proceedings for redemption. Failure to give any required notice of redemption
as to any particular Bond or to the Company Mortgage Trustee shall not affect the validity of the
call for redemption of any Bonds in respect of which no such failure has occurred. Redemption
notices may state that no representation is made as to the accuracy or correctness of the CUSIP
numbers pnnted therein or on the Bonds.
(b) With respect to any notice of optional redemption of Bonds in accordance with
Section 4.02 hereof, unless, upon the giving of such notice, such Bonds shall be deemed to have
been paid within the meaning of Article VII hereof, such notice may state that such redemption
is conditioned upon the receipt by the Trustee, on or prior to the date fixed for such redemption,
of Available Moneys suffcient to pay the principal of, and premium, if any, and interest on, such
Bonds to be redeemed. In the event such Available Moneys are (i) not so received, (iI) no longer
sufficient to pay the principal of, and premium, if any, and interest on, such Bonds or (iii) no
longer considered Available Moneys, in each case, on the redemption date; the redemption shall
not be made and the Trustee shall within a reasonable time thereafter give notice, in the manner
in which the notice of redemption was given, that such redemption wil not take place.
(c) The Trustee shall also provide the notice with respect to the Bonds to be redeemed
as required by Section 3.05(a) hereof.
- 44-Series 2010B Trust Indenlure
Section 4.06. Partia Redemption of Bonds. Upon surrender of any Bond redeemed in
part only, the Registrar shall exchange the Bond redeemed for a new Bond of like tenor and in an
Authorized Denomination without charge to the Owner in the pnncipal amount of the portion of
the Bond not redeemed. In the event of any partial redemption of a Bond which is registered in
the name of Cede & Co., DTC may elect to make a notation on the Bond certificate which
reflects the date and amount of the reduction in the principal amount of said Bond in lieu of
surrendering the Bond certficate to the Registrr for exchange. The Issuer, the Company and
the Trustee shall be fully released and discharged from aJJ liability to the extent of payment of
the redemption price for such partal redemption.
Sectin 4.07. No Partial Redemptin After Default. Anything in this Indenture to the
contrary notwithstanding, if there shall have occurred and be continuing an Event of Default
(other than an Event of Default described in Section 9.0l(d) hereof) of which a Responsible
Offcer of the Trustee has actual knowledge, there shall be no redemption of less than all of the
Bonds at the time Outstanding.
Section 4.08. Payment of Redemptin Pre. For the redemption of any of the Bonds, the
Issuer shall cause to be deposited in the Bond Fund, solely out of the Revenues and any other
moneys constituting the Trust Estate, and which if the redemption is being made pursuant to
Section 4.02 hereof, constitute Available Moneys, an amount suffcient to pay the principal of,
and premium, if any, and interest to become due on, the Bonds called for redemption on the date
fixed for such redemption; provided, however, that if the redemption is being made pursuant to
Section 4.03 hereof and a Credit Facility is in effect and such Credit Facility consists of a direct
pay letter of credit, then the deposit to the Bond Fund shall consist solely of amounts drawn
under such letter of credit. The obligation of the Issuer to cause any such deposit to be made
hereunder shall be reduced by the amount of moneys in the Bond Fund or any fund in Article
VJI hereof available for and used on such redemption date for payment of the principal of, and
premium, if any, and accrued interest on, the Bonds to be redeemed. The Trustee shall apply
amounts as and when required available therefor in the Bond Fund or Credit Facility Fund to pay
principal of, and premium, if any, and interest on, the Bonds.
Section 4.09. Effect of Redemptin. Notice of redemption having been duly given as
aforesaid, and moneys for payment of the redemption price being held by the Trustee if such
redemption was conditioned thereon, the Bonds so called for redemption shall, on the
redemption date designated in such notice, become due and payable at the redemption price
specified in such notice, interest on the Bonds so called for redemption shall cease to accrue, said
Bonds shall cease to be entitled to any lien, benefit or security under this Indenture, and the
Owners of said Bonds shall have no rights in respect thereof except to receive payment of the
redemption price thereof, without interest accrued on any funds held to pay such redemption
price accruing after the date of redemption.
All Bonds fully redeemed pursuant to the provisions of this Artcle iv shall be canceled
upon surrender thereof to the Paying Agent, which shall upon the written request of the Issuer,
deliver to the Company a certificate evidencing such cancellation.
-45 -Series 20lOB Trust Indenture
ARTICLE V
GENERAL COVENANTS; CREDIT F ACILlTY; AND
ADDITIONAL COIJLATERAL
Section 5.01. Payment of Bonds. (a) The Issuer covenants that it wiJ promptly payor
cause to be paid the principal of, and premium, if any, and interest on, every Bond issued under
this Indenture at the place, on the dates and in the manner provided herein and in the Bonds,
provided that the principal, premium if any, and interest are payable by the Issuer solely from the
Revenues, and nothing in the Bonds or this Indenture shall be considered as assigning or
pledging any other funds or assets of the Issuer other than the Trust Estate.
(b) Each and every covenant made herein by the Issuer is predicated upon the condition
that the Issuer shall not in any event be liable for the payment of the pnncipal of, or premium, if
any, or interest on the Bonds, or for the payment of the purchase price of the Bonds, or the
peifonnance of any pledge, mortgage, obligation or agreement created by or arising under this
Indenture or the Bonds from any propert other than the Trust Estate; and, further, that neither
the Bonds nor any such obligation or agreement of the Issuer shall be construed to constitute an
indebtedness or a lending of credit of the Issuer within the meaning of any constitutional or
statutory provision whatsoever, or constitute or give rise to a pecuniary liability of the Issuer or a
charge against its general credit or taxing power.
(c) For the payment of interest on the Bonds, the Issuer shall cause to be deposited in
the Interest Account or the Credit Facility Fund on or prior to each Interest Payment Date, solely
out of Revenues and other moneys pledged therefor, an amount sufficient to pay the interest to
become due on such Interest Payment Date; provided, however, that the obligation of the Issuer
to cause any such deposit to be made hereunder shall be reduced by the amount of moneys in the
Interest Account available on the Interest Payment Date for the payment of the interest on the
Bonds.
(d) For payment of the principal of the Bonds upon redemption, maturity or
acceleration of maturity, the Issuer shall cause to be deposited in the Principal Account or the
Credit Facilty Fund, on or prior to the redemption date or the maturity date (whether accelerated
or not) of the Bonds, solely out of Revenues and other moneys pledged therefor, an amount
sufficient to pay the principal of the Bonds; provided, however, that the obligation of the Issuer
to cause any such deposit to be made hereunder shall be reduced by the amount of moneys in the
Prncipal Account available on the redemption date or the maturity date (whether accelerated or
not) for the payment of the principal of the Bonds; and provided, further, that the obligation of
the Issuer to cause any such deposit to be made hereunder shall be deemed to be satisfied and
discharged to the extent of the corresponding payment made by the Provider to the Trustee under
the Credit Facility (unless the Credit Facility shall be an insurance policy, in which case such
obligation of the Issuer shall not be deemed to be satisfied and discharged).
Sectin 5.02. Performance of Covenants by Issuer; Authori; Due Executin. The
Issuer covenants that it will faithfully peifonn at all times any and all covenants, undertkings,
stipulations and provisions contained in this Indenture, in any and every Bond executed,
-46-Senes 20lOB Trust Indnture
authenticated and delivered hereunder and in all of its proceedings pertining thereto. The Issuer
represents that it is duly authorized under the Constitution and laws of the State to issue the
Bonds and to execute this Indenture. to execute and deliver the Agreement, to assign the
Agreement and amounts payable thereunder. and to pledge the amounts hereby pledged in the
manner and to the extent herein set forth. The Issuer further represents that all action on its part
for the issuance of the Bonds and the execution and delivery of this Indenture has been duly and
effectively taken, and that the Bonds in the hands of the Owners thereof are and wil be valid and
binding limited obligations of the Issuer.
The Issuer shaJl fully cooperate with the Trustee and with the Owners of the Bonds to the
end of fully protecting the rights and security of the Owners of any Bonds.
The Issuer represents that it now has, and covenants that it shall use its best efforts to
maintain. complete and lawful authonty and privilege to enter into and perform its obligations
under this Indenture and the Agreement, and covenants that it wil at all times use its best efforts
to maintain its existence or provide for the assumption of its obligations under this Indenture and
the Agreement.
Except to the extent otherwise provided in this Indenture, the Issuer shall not enter into
any contract or take any action by which the rights of the Trustee or the Owners of the Bonds
may be impaired and shall, from time to time. execute and deliver such furter instruments and
take such further action as may be reasonably required to carry out the purpses of this
Indenture.
Section 5.03. Immunits and Limitatns of Responsibilit of Issuer; Remedies.
Without limiting the obligation of the Issuer to perform its covenants and obligations hereunder:
(a) The Issuer shall be entitled to the advice of counsel and shall be wholly
protected as to action taken or omitted in goo faith in reliance on such advice.
(b) The Issuer may rely conclusively on any communication or other
document furnished to it hereunder and reasonably believed by it to be genuine.
(c) The Issuer shall not be liable for any action:
(i) taken by it in good faith and reasonably believed by it to be within
its discretion or powers hereunder, or
(ii) in good faith omitted to be taken by it because such action was
reasonably believed to be beyond its discretion or powers hereunder, or
(iii) taken by it pursuant to any direction or instruction by which it is
governed hereunder, or
- 47-Sencs 20ioB Truilndenlurc
(iv) omitted to be taken by it by reason of the lack of any direction or
instruction required hereby for such action; nor shall it be responsible for the
consequences of any error of judgment made by it in good faith.
(d) The Issuer shall in no event be liable for the application or misapplication
of funds or for other acts or defaults by any person, except its own officers and
employees.
(e) When any payment or consent or other action by it is called for hereby, it
may defer such action pending receipt of such evidence (if any) as it may require in
support thereof.
(f) The Issuer shall not be required to take any remedial action (other than the
giving of notice) unless reasonable indemnity satisfactory to it is furnished for any
expense or liabilty to be incurred thereby.
(g) As provided herein and in the Agreement, the Issuer shall be entitled to
reimbursement from the Company for its expenses reasonably incurred or advances
reasonably made, with interest at a rate per annum equal to the rate of interest then in
effect and as published in the Wall Street Journal as the composite prime lending rate for
domestic commercial loans, in the exercise of its rights or the performance of its
obligations hereunder, to the extent that it acts without previously obtaining indemnity.
(h) No permissive right or power to act which it may have shall be constred
as a requirement to act, and no delay in the exercise of a right or power shall affect its
subsequent exercise of that right or power.
Section 5.04. Defense of Issuers Rights. The Issuer agrees that the Trustee may defend
the Issuer's rights to the payments and other amounts due under the Agreement, for the benefit of
the Owners of the Bonds, against the claims and demands of all persons whomsoever. The
Issuer covenants that it wil do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, such indentures supplemental hereto and such further acts,
instruments and transfers as the Trustee may reasonably require for the better assuring,
transfemng, pledging, assigning and confirming to the Trustee all and singular the rights
assigned hereby and the amounts pledged hereby to the payment of the pnncipal of, and
premium, if any, and interest on, the Bonds. The Issuer covenants and agrees that, except as
herein and in the Agreement provided, it wil not sell, convey, assign, pledge, encumber or
otherwise dispose of any part of the Trust Estate.
Section 5.05. Recording and Filing; Further Instruments. (a) The Issuer and the
Trustee shall cooperate with the Company in the Company's fiing and recording of all
documents, notices and financing statements related to this Indenture and to the Agreement
which are necessary, as required by law, in order to perfect the lien of this Indenture in the Trust
Estate. Concurrently with the execution and delivery of the Bonds and in accordance with the
requirements of Section 5.04 of the Agreement, the Company shall cause to be delivered to the
Trustee an opinion of counsel (i) stating that, in the opinion of such counsel either (A) such
- 48-Series 20lOB Trust Indenture
action has been taken, as set fort therein, with respect to the recording and filing of such
documents, notices and financing statements as is necessary to pedect the lien of this Indenture
in the Trust Estate, or (B) no such action is necessary to pedect such lien, and (ii) stating the
requirements for the fiing of continuation statements or other documentation or notices in order
to maintain the pedection of the lien of this Indenture in the Trust Estate.
(b) The Issuer shall upon the reasonable request of the Trustee (which request the
Trustee is not required to make), from time to time execute and deliver such furter instruments
and take such furter action as may be reasonable (and consistent with the Bond Documents) and
as may be required to effectuate the purpses of this Indenture or any provisions hereof, provided
however, that no such instruments or actions shall pledge the general credit or the full faith of the
Issuer.
Sectin 5.06. Rights Under Agreement. The Agreement, a duly executed counterpart, of
which has been fied with the Trustee, sets forth the covenants and obligations of the Issuer and
the Company, including provisions that, subsequent to the issuance of the Bonds and prior to the
payment in full or provision for payment thereof in accordance with the provisions hereof, the
Agreement (except as expressly provided therein) may not be effectively amended, changed,
modified, altered or terminated without the concurring written consent of the Trustee, as
provided in Article XII hereof, and reference is hereby made to the Agreement fora detailed
statement of such covenants and obligations of the Company, and the Issuer agrees that the
Trustee in its name or (to the extent required by law) in the name of the Issuer may enforce all
rights of the Issuer and all obligations of the Company under and pursuant to the Agreement,
whether or not the Issuer is in default hereunder. The Issuer shall cooperate with the Trustee in
enforcing the obligations of the Company to payor cause to be paid all amounts payable by the
Company under the Agreement.
Sectin 5.07. Arbitrage and Tax Covenants. The Issuer wil not take or fail to take any
action that would impair the exclusion of interest on the Bonds from gross income for federal
income tax purposes. The Issuer furter wil not knowingly act or fail to act so as to cause the
proceeds of the Bonds, any moneys derived, directly or indirectly, from the use or investment
thereof and any other moneys on deposit in any fund or account maintained in respect of the
Bonds (whether such moneys were derived from the proceeds of the sale of the Bonds or from
other sources) to be used in a manner which would cause the Bonds to be treated as "arbitrage
bonds" within the meaning of Section 148 of the Code, or which would otherwise adversely
afect the Tax-Exempt status of the Bonds.
Sectin 5.08. No Disposition o/Trut Estate. Except as permitted by this Indenture, the
Issuer shall not sell lease, pledge, assign or otherwise encumber or dispose of its interest in the
Trust Estate and wil promptly pay (but only from the Revenues) or cause to be discharged, or
make adequate provision to discharge, any lien or charge on any part thereof not permitted
hereby.
Section 5.09. Access to Books. All books and documents in the possession of the Issuer
relating to the Revenues and the Trust Estate shall at all reasonable times be open to inspection
by such accountants or other agencies as the Trustee may from time to time designate.
-49 -Senes 2OIOB Trust Indenture
Sectin 5.10. Source of Payment of Bonds. The Bonds are not general obligations of the
Issuer but are limited obligations payable solely from the Revenues. The Revenues have been
pledged and assigned as security for the equal and ratable payment of the Bonds and shall be
used for no other purpose than to pay the principal of, and premium, if any, and interest on. the
Bonds, except as may be otherwise expressly authorized in this Indenture or the Agreement.
Sectin 5.11. Credit Facility. The Trustee and the Paying Agent shall take action under
the Credit Facility. in accordance with the terms and subject to the coverage thereof, to the extent
necessary in order to cause amounts in respect of the principal of, interest on and. if applicable,
the purchase pnce of the Bonds to be payable by the Provider pursuant to the Credit Facility to
the Owners of the Bonds. The Trustee shall not sell, assign, transfer or surrender the Credit
Facilty except as descnbed in Section 2.16 hereof and, in the case of First Mortgage Bonds that
constitute a Credit Facility, except as described in Section 5.12 hereof.
Sectin 5.12. First Mortgage Bonds. In the event that the Trustee shall hold First
Mortgage Bonds, whether delivered as a Credit Facility or as Additional Collateral, the Trustee
shall observe the following provisions respecting the First Mortgage Bonds:
(a) No Transfer of First Mortgage Bonds. The Trustee shall not sell, assign or
transfer any First Mortgage Bonds except to a successor trustee under this Indenture.
First Mortgage Bonds may be held by and registered in the name of the Trustee's
nominee, for the benefit of the Owners of the Bonds. without violating the provisions of
the preceding sentence, provided that such nominee is under the control of the Trustee
and that the abilty of the Trustee to pedorm its obligations hereunder wil not be
adversely affected thereby.
(b) Voting of First Mortgage Bonds. The Trustee shall. as the holder of any
First Mortgage Bonds. attend such meeting or meetings of bondholders under the
Company Mortgage or, at its option. deliver its proxy in connection therewith, as related
to matters with respect to which it is entitled to vote or consent. So long as no Event of
Default of which a Responsible Offcer of the Trustee has actual knowledge shall have
occurred and be continuing. either at any such meeting or meetings, or otherwise when
the consent of the holders of the first mortgage bonds issued under the Company
Mortgage is sought without a meeting, the Trustee shall vote as the holder of any First
Mortgage Bonds, or shall consent with respect thereto proportionately with the vote or
consent of the holders of all other first mortgage bonds of the Company then outstading
under the Company Mortgage. the holders of which are eligible to vote or consent.
Anything in this Indenture to the contra notwithstanding:
(i) the proportonate votes or consents of the holders of first mortgage
bonds (other than the First Mortgage Bonds) shall be exclusively evidenced for
purpses of this Section 5.l2(b) by a Bondholder's Certificate (as hereinafter
defined) delivered to the Trustee; the Trustee shall have no duty or obligation to
make any other determination of such proportionate votes or consents or to venfy
the accuracy of any Bondholder's Certificate; and the Trustee shall have no duty
- 50-Series 20108 Trust Indenture
or obligation to vote or consent with respect to the First Mortgage Bonds unless
and until it shall have received a Bondholder's Certificate;
(ii) the Trustee shall not vote as such holder in favor of, or give its
consent to, any amendment or modification of the Company Mortgage which, if it
were an amendment or modification of this Indenture, would not be described in
Section 12.01 hereof (and the Trustee shall be entitled to rely on an opinion of
counsel to the Company or an opinion of Bond Counsel as to whether or not such
amendment or modification of the Company Mortgage is described in Section
12.01 hereof) without (A) the prior consent and approval, obtained in the manner
prescribed in Section 12.02 hereof, of Owners of Bonds which would be required
under said Section 12.02 for such an amendment or modification of this Indenture
and (B) the consent of the Provider (unless an Provider Default shall have
occurred and be continuing); and
(iii) this Section 5.12(b) shall not apply to any vote or consent of
bondholders under the Company Mortgage with respect to any matter if and to the
extent that the instrument establishing the First Mortgage Bonds as a series under
the Mortgage (and the terms of such series) shall provide that the holder of the
First Mortgage Bonds shall be deemed to have voted or consented with respect to
such matter in a manner specified in such instrument.
For purpses of this Section 5.12(b), "Bondholder's Certifcate" means a
certificate signed by the temporary chairman, the temporary secreta, the permanent
chairman. the permanent secretar, or an inspector of votes at any meeting or meetings of
bondholders under the Company Mortgage. or by the Company Mortgage Trustee in the
case of consents of such bondholders which are sought without a meeting, which states
what the signer thereof reasonably believes wil be the proportionate votes or consents ofthe holders of all first mortgage bonds (other than the First Mortgage Bonds) outstanding
under the Company Mortgage and counted for the purpses of determining whether such
bondholders have approved or consented to the matter put before them.
Any action taken by the Trustee in accordance with the provisions of this
Section 5.1 2(b) shall be binding upon the Issuer and the Owners of Bonds.
(c) Surrender of First Mortgage Bonds. The Trustee shall surrender any First
Mortgage Bonds to the Company Mortgage Trustee only in accordance with the
provisions of Section 4.07(b), Section 4.09d) or Section 4.10(b) of the Agreement.
(d) Notice to Company Mortgage Trustee. In the event that a payment on any
First Mortgage Bonds shall have become due and payable and shall not have been fully
paid, the Trustee shall forthwith give notice thereof to the Company Mortgage Trustee
signed by its President, a Vice President, a Senior Trust Officer or a Trust Offcer,
specifying, with respect to principal of such First Mortgage Bonds, the principal amount
of First Mortgage Bonds then due and payable and the amount of funds required to make
such payment and, with respect to interest on such First Mortgage Bonds, the last date to
- 51 -Series 2010B Trust Indenture
which interest has been paid and the amount of funds required to make such payment. In
the event that the Trustee shall have received written notice pursuant to Section 8.01 of
the Agreement to the effect that any Bonds are to be redeemed pursuant to Section 4.02
or Section 4.03 hereof, the Trustee shall fortwith give notice thereof to the Company
Mortgage Trustee specifying the principal amount, interest rate and redemption date of
Bonds so to be redeemed. Any such notice given by the Trustee shall be signed by its
President, a Vice President, an Assistant Vice President or an Assistant Treasurer thereof.
The Trustee shall incur no liabilty for failure to give any such notice, and such failure
shall have no effect on the obligations of the Company on any First Mortgage Bonds or
on the nghts of the Trustee or of the Owners of Bonds.
Sectin 5.13. Additna Collateral. The Trustee and the Paying Agent shall take action
under any Additional Collateral, in accordance with the terms thereof and at the expense of the
Company, to the extent necessary in order to cause amounts in respect of the principal of and
interest on the Bonds to be payable by the Provider pursuant to the Additional Collateral to the
Owners of the Bonds. The Trustee shall not sell, assign, transfer or surrender any Additional
Collateral except to a successor Trustee hereunder and in accordance with the terms of the
Additional Collateral or the Agreement, as the case may be.
ARTJCLEVI
DEPOSIT OF BOND PROCEEDS; FuND AND ACCOUNTS; REVENUES
Section 6.01. Creation of Bond Fund and Accounts; Credit Facilit Fund; Rebate
Fund. (a) There is hereby created by the Issuer and ordered established a separate Bond Fund,
which shall be an Eligible Account, to be held by the Trustee and to be designated "City of
Forsyth, Montana, Pollution Control Revenue Refunding Bonds (Avista Corporation Colstrip
Project) Series 2010B Bond Fund" and therein a Pnncipal Account and an Interest Account.
(b) There is hereby created by the Issuer and ordered established a separate Credit
Facility Fund, which shall be an Eligible Account, to be held by the Trustee and to be designated
"City of Forsyth, Montana, Pollution Control Revenue Refunding Bond~' (A vista Corporation
Colstrip Project) Series 2010B Credit Facility Fund."
(c) For purposes of complying with the requirements of Section 148 of the Code, the
Rebate Fund is hereby established with the Trustee to make arbitrage payments as contemplated
by the Tax Certificate. The Trustee shall deposit such amounts into the Rebate Fund and pay
such amounts from the Rebate Fund as it shall be directed by an Authorized Company
Representative. The Trustee shan have no responsibilty for calculating the amount of arbitrage
rebate with respect to the Bonds.
Section 6.02. Dispositon of Bond Proceeds and Certain Other Moneys. In accordance
with the direction contained in Section 3.03 of the Agreement, simultaneously with the initial
authentication and delivery of the Bonds: (i) there shall be deposited with the Pror Trustee in
the Pnor Bond Fund and used for the purpose of the Refunding of the Pror Bonds, an amount
equal to $17 ,00,00, representing the principal proceeds received from the sale of the Bonds,
- 52-Series 20 JOB Trust Indnture
and (ii) there shall be deposited into the Interest Account the accrued interest on the Bonds, if
any, from the Issue Date to the date of the initial authentication and delivery of the Bonds.
Section 6.03. Deposits into the Bond Fund; Use of Moneys in the Bond Fund. (a) The
Trustee shall deposit into the Prncipal Account of the Bond Fund (i) payments made by the
Company pursuant to the Agreement in respect of principal of or premium payable on the Bonds,
including any payments of principal of and premium. if any, on Additional Collateral, (ii)
moneys drawn under or paid on the Credit Facility for the payment of the principal of or
premium, if any. on the Bonds upon redemption, maturity or acceleration of maturity and (iii)
any other moneys required by this Indenture or the Agreement to be deposited into the Prncipal
Account of the Bond Fund. The Trustee shall keep separate (A) moneys drawn under the Credit
Facility and (B) Available Moneys and shall not commingle such moneys or Available Moneys,
as the case may be, with other moneys in the Prncipal Account.
(b) The Trustee shall deposit into the Interest Account of the Bond Fund (i) payments
made by the Company pursuant to the Agreement in respect of interest on the Bonds, including
any payments of interest on Additional Collateral, (ii) moneys drawn under or paid on the Credit
Facility to pay interest on the Bonds when due and (iii) any other moneys required by this
Indenture or the Agreement to be deposited into the Interest Account of the Bond Fund. The
Trustee shan keep separate (A) moneys drawn under the Credit Facility and (B) A vaiJable
Moneys and shaH not commingle such moneys or Available Moneys, as the case may be, with
other moneys in the Interest Account.
(c) Except as provided in Sections 6.04,6.05,9.10 and 10.04 and Article VII hereof
and in the Tax Certificate, moneys in the Prncipal Account of the Bond Fund shall be used
solely for the payment of principal of and premium if any, on the Bonds as the same shall
become due and payable at maturity, upon redemption or upon acceleration of matunty. The
Trustee shall at all times maintain accurate records of deposits into the Principal Account. and
the sources and timing of such deposits, and shall apply moneys from such sources on any Bond
Payment Date in the following order of priority:
(i) A vaiJable Moneys;
(ii) Moneys drawn under or paid on the Credit Facility on which neither the
Company nor any affliate thereof is the obligor; and
(iii) Any other moneys paid by the Company pursuant to the Agreement or any
other moneys in the Bond Fund;
provided, however, that if the Credit Facility then in effect consists of a direct pay letter of credit,
the Trustee shall apply moneys drawn under the Credit Facility prior to the application of
moneys from any other sources. In the event that any principal payment by the Company
pursuant to the Agreement is on deposit in the Prncipal Account on a Bond Payment Date but
does not constitute Available Moneys. or is received by the Trustee subsequent to such Bond
Payment Date, and the Trustee has paid principal of the Bonds from the source described in
clause (ii) of this paragraph, the Trustee shall, subject to Section 9.10 hereof, transfer to the
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Provider on (or as promptly as practicable after) such Bond Payment Date or the date of receipt,
if different, the amount of such principal of Bonds paid from such source and not reimbursed to
the Provider under the Credit Facility Agreement as certified in wnting to the Trustee and the
Company by the Provider.
(d) Except as provided in Sections 6.04,6.05,9.10 and 10.04 and Article VII hereof
and in the Tax Certificate, moneys in the Interest Account of the Bond Fund shall be used solely
to pay interest on the Bonds when due. The Trustee shall at all times maintain accurate records
of deposits into the Interest Account and the sources of such deposits, and shall apply moneys
from such sources on any Bond Payment Date in the following order of priority:
(i) A vailable Moneys;
(ii) Moneys drawn under or paid on the Credit Facility on which neither the
Company nor any affiiate thereof is the obligor; and
(iii) Any other moneys paid by the Company pursuant to the Agreement or any
other moneys in the Bond Fund;
provided, however, that if the Credit Facility then in effect consists of a direct pay letter of credit,
the Trustee shall apply moneys drawn under the Credit Facility prior to the application of
moneys from any other sources. In the event that any interest payment by the Company pursuant
to the Agreement is on deposit in the Interest Account on a Bond Payment Date but does not
constitute Available Moneys, or is received by the Trustee subsequent to such Bond Payment
Date, and the Trustee has paid interest on the Bonds from the source described in clause (ii) of
this paragraph, the Trustee shall, subject to Section 9.10 hereof, transfer to the Provider on (or as
promptly as practicable after) such Bond Payment Date or the date of receipt, if different, the
amount of such interest on Bonds paid from such source and not reimbursed to the Provider
under the Credit Facility Agreement, as certified in writing to the Trustee by the Provider.
The Trustee shall identify appropriate sources of moneys and apply such moneys to pay
principal of, and premium, if any, and interest on, the Bonds as and when required by the terms
of this Indenture.
Sectin 6.04. Bonds Not Presented for Payment of Principal. In the event any Bonds
shall not be presented for payment when the principal thereof becomes due, either at maturity or
at the date fixed for redemption thereof or the acceleration of matunty or in the event that any
interest thereon is unclaimed, if moneys suffcient to pay such Bonds or interest are held by the
Trustee, the Trustee shall segregate and hold such moneys in trst (but shall not invest such
moneys), without liabilty for interest thereon, for the benefit of Owners of such Bonds who shall
except as provided in the following paragraph, thereafter be restncted exclusively to such fund or
funds for the satisfaction of any claim of whatever nature on their part under this Indenture or
relating to said Bonds or interest. Such Bonds which shall not have been so presented for
payment shall be deemed paid for any purpses of this Indenture.
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Any moneys which the Trustee shall segregate and hold in trst for the payment of the
pnncipal of or interest on any Bond and remaining unclaimed for two years (subject to
applicable escheat laws) after such principal or interest has become due and payable shall be paid
by the Trustee to the Company upon request of an Authorized Company Representative to the
Trustee, (i) be paid to the Provider to the extent of the amount, if any, certified in writing by the
Provider to the Trustee and the Company to be payable under the Credit Facility Agreement, and
(ii) the balance, if any, shall be paid by the Trustee to the Company if consented to in writing by
the Provider. After the payment of such unclaimed moneys to the Company or the Provider, the
Owner of such Bond shall look only to the Company for payment, and then only to the extent of
the amount so repaid to the Provider and/or the Company, and the Company shall not be liable
for any interest thereon and shall not be regarded as a trstee of such money, and all liability of
the Issuer, the Trustee and the Provider with respect to such moneys shall thereupon cease.
Neither the Company nor the Issuer shall have any right, title or interest in or to any
moneys held by the Trustee pursuant to this Section. The Trustee shall not be liable to the Issuer
or any Owner for interest on funds held by it for the payment and discharge of the principal,
interest, or premium on any of the Bonds to any Owner.
Section 6.05. Payment to the Company. After the right, title and interest of the Trustee
in and to the Trust Estate and all covenants, agreements and other obligations of the Issuer to the
Owners shall have ceased, terminated and become void and shall have been satisfied and
discharged in accordance with Section 6.04 and Artcle VII hereof, and all fees, expenses and
other amounts payable to the Registrr, the Paying Agent, the Trustee, the Remarketing Agent,
the Provider and the Issuer pursuant to any provision of this Indenture or the Credit Facility
Agreement shall have been paid, any moneys remaining in the Bond Fund and the Rebate Fund
shall be paid to the Company upon request of an Authorized Company Representative, other than
any unclaimed moneys held pursuant to Section 6.04. The Trustee may conclusively rely on
certificates of the Remarketing Agent and the Provider as to the amount of any fees, expenses
and other amounts owing to them.
ARTICLE VII
INVESTMENTS
Sectin 7.01. Investment of Moneys in Funds. Subject to Section 5.07 hereof and the
provisions of the Tax Certficate, moneys in the Bond Fund and the Rebate Fund may be
invested and reinvested in Investment Securities. Such investments shall be made by the Trustee
as specifically directed and designated by the Company in a certificate of an Authorized
Company Representative. Each such certificate shall contain a statement that each investment so
designated by the Company constitutes an Investment Security and can be made without
violation of any provision hereof or of the Agreement or of the Tax Certificate. The Trustee
shall be entitled to rely on each such certficate or advìce and shall incur no liability for making
any such investment so designated or for any loss, fee, tax or other charge incurred in sellng
such investment or for any action taken pursuant to this Section that causes the Bonds to be
treated as "arbitrage bonds" within the meaning of Section 148 of the Code. No investment
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instructions shall be given by the Company if the investments to be made pursuant thereto would
violate any covenant set forth in Section 5.07 hereof or the provisions of the Agreement or the
Tax Certficate. The Trustee may act as principal or agent in the acquisition or disposition of
investments. The Trustee shall not be responsible for any loss on any investment made in
accordance herewith. The Trustee shall not invest any cash held by it hereunder in the absence
of timely and specific written direction from the Company or the Provider. The Issuer and the
Company acknowledge that regulations of the Comptroller of the Currency grant the right to
receive brokerage confrmations of the security transactions as they occur, at no additional cost.
To the extent permitted by law, the Issuer and the Company specificaHy waive compliance with
12 C.F.R. 12 and hereby notifies the Trustee that no brokerage confirmations need be sent
relating to the secunty transactions as they occur.
Moneys in the Credit Facility Fund, including money provided pursuant to a draw on the
Credit Facilty to pay the purchase of Bonds pursuant to Section 3.01 or Section 3.02 hereof and
proceeds of Remarketed Bonds shall be held uninvested.
Sectin 7.02. Conversion 0/ Investment to Cash. As and when any amounts so invested
may be needed for disbursements from the Bond Fund or the Rebate Fund, the Trustee shall
cause a suffcient amount of such investments to be sold or otherwise converted into cash to the
credit of such fund. As long as no Event of Default shall have occurred and be continuing, the
Company shall have the right to designate the investments to be sold and to otherwise direct the
Trustee in the sale or conversion to cash of such investments (otherwise, the Provider shall have
the nght to make such designations and give such directions; provided, that if, at the time there is
no Provider or a Provider Default shall have occurred and be continuing, the Trustee shall sell or
otherwise convert into cash all such investments and hold such cash uninvested in the applicable
fund or funds); provided that the Trustee shall be entitled to conclusively assume the absence of
any Event of Default unless it has notice thereof within the meaning of Section 10.05 hereof.
Section 7.03. Credit/or Gains and Charge/or Losses. Gains from investments shaH be
credited to and held in and losses shaH be charged to the fund or account from which the
investment is made.
ARTICLE VIII
DEFEASANCE
If the Issuer shall payor cause to be paid to the Owner of any Bond secured hereby the
principal of, and premium, if any, and interest due and payable, and thereafter to become due and
payable, upon such Bond or any portion of such Bond in an Authorized Denomination thereof,
such Bond or portion thereof shall cease to be entitled to any lien, benefit or security under this
Indenture.
If the Issuer shall payor cause to be paid the principal of, and premium if any, and
interest due and payable on, all Outstanding Bonds, and thereafter to become due and payable
thereon, and shall payor cause to be paid all other sums payable hereunder by the Issuer,
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including any necessary and proper fees, compensation and expenses of the Trustee, the Paying
Agent, the Registrar, the Provider and the Remarketing Agent, then. and in that case, the right,
title and interest of the Trustee in and to the Trust Estate shall thereupon cease, terminate and
become void. In such event. the Trustee shall assign. transfer and tum over the Trust Estate to
the Company and any surplus in the Bond Fund and any balance remaining in any other fund
created under this Indenture shall be paid to the Company upon the request of an Authorized
Company Representative, other than any unclaimed moneys held pursuant to Sections 3.06(d)
and 6.04. The Trustee may conclusively rely on certificates of the Remarketing Agent and the
Provider as to the amount of any fees, expenses and other amounts owing to them.
Notwithstanding anything herein to the contrary, in the event that the principal of and interest
due on any Bonds shall be paid by the Provider pursuant to the Credit Facility and the Provider
has not been reimbursed for such payment or arrngements satisfactory to the Provider for such
reimbursement have not been made, such Bonds shall remain Outstanding for all purpses, shall
not be defeased or otherwise satisfed and shall not be considered paid by the Issuer. and the
assignment and pledge of the Trust Estate and all covenants, agreements and other obligations of
the Issuer to such Owners shall continue to exist and shaH run to the benefit of the Provider and
the Provider shall be subrogated to the rights of such Owners.
All or any portions of Bonds (in Authorized Denominations) shall, prior to the maturity
or redemption date thereof, be deemed to have been paid within the meaning of this Article VII
and for all purpses of this Indenture when:
(a) in the event said Bonds or portons thereof have been selected for
redemption in accordance with Section 4.04 hereof, the Trustee shall have given. or the
Company shall have given to the Trustee in form satisfactory to it irrvocable instructions
to give, on a date in accordance with the provisions of Section 4.05 hereof, notice of
redemption of such Bonds or portions thereof;
(b) there shall have been deposited with the Trustee moneys. which constitute
A vailable Moneys or moneys drawn on the Credit Facility (other than a Credit Facility
that consists solely of a facility on which either the Company or any affliate thereof is
the obligor), in an amount suffcient (without relying on any investment income) to pay
when due the principal of. and premium, if any, and interest due and to become due
(which amount of interest to become due shaH be calculated at the Maximum Interest
Rate unless the interest rate borne by all of such Bonds is not subject to adjustment prior
to the maturity or redemption thereof, in which case the amount of interest shall be
calculated at the rate borne by such Bonds) on said Bonds or portions thereof on and prior
to the redemption date or maturity date thereof, as the case may be; provided, however,
that if such payment is to be made upon redemption pursuant to Section 4.02 hereof, such
payment shall be made from Available Moneys;
(c) in the event said Bonds or portions thereof do not mature and are not to be
redeemed within the next succeeding 60 days, the Issuer at the direction of the Company
shall have given the Trustee in form satisfactory to it irrevocable instructions to give, as
soon as practicable in the same manner as a notice of redemption is given pursuant to
Section 4.05 hereof, a notice to the Owners of said Bonds or portions thereof and to the
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Provider that the deposit required by clause (b) above has been made with the Trustee
and that said Bonds or portions thereof are deemed to have been paid in accordance with
this Article VII and stating the maturity or redemption date upon which moneys are to be
available for the payment of the principal of, and premium, if any, and interest on, said
Bonds or portions thereof;
(d) the Issuer, the Company, the Trustee and the Provider shall have received
written evidence from Moody's, if the Bonds are then rated by Moody's, and S&P, if the
Bonds are then rated by S&P, that such action wil not result in a reduction, suspension or
withdrawal of the rating; and
(e) the Issuer, the Company, the Trustee, Moody's, if the Bonds are then rated
by Moody's, S&P, if the Bonds are then rated by S&P, and the Provider shall have
received a Favorable Opinion of Bond Counsel with respect to such deposit.
In the event the requirements of the next succeeding paragraph can be satisfied, the
preceding paragraph shall not apply, and the following two paragraphs shall be applicable (the
final two paragraphs of this Section shall apply in either case).
Any Bond shall be deemed to be paid within the meaning of this Artcle VII and for aU
purposes of this Indenture when:
(a) payment of the principal of and premium if any, on such Bond, plus
interest thereon to the due date thereof (whether such due date is by reason of maturity or
acceleration or upon redemption as provided herein) either (A) shall have been made or
caused to be made in accordance with the terms thereof or (B) shall have been provided
for by irrevocably depositing with the Trustee in trst and irrevocably set aside
exclusively for such payment (1) moneys, which shall be Available Moneys or moneys
drawn under the Credit Facility (other than a Credit Facility that consists solely of a
facility on which either the Company or any affiliate thereof is the obligor), sufficient to
make such payment, and/or (2) Government Obligations purchased with Available
Moneys or moneys drawn under the Credit Facility (other than a Credit Facilty that
consists solely of a facility on which either the Company or any affliate thereof is the
obligor) and maturing as to principal and interest in such amount and at such time as wil
insure, without reinvestment, the availability of suffcient moneys to make such payment;
provided, however, that if such payment is to be made upon redemption pursuant to
Section 4.02 hereof, such payment shall be made from Available Moneys or from
Government Obligations purchase with Available Moneys;
(b) all necessary and proper fees, compensation and expenses of the Issuer,
the Trustee, the Remarketing Agent, the Provider, the Paying Agent and the Registrar
pertaining to the Bonds with respect to which such deposit is made shall have been paid
or the payment thereof provided for to the satisfaction of the Trustee, the Trustee being
able to conclusively rely on certificates of the Remarketing Agent and the Provider as to
the amount of any fees, compensation and expenses owing to them; and
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(c) an opinion of an independent public accountant of nationally recognized
standing, selected by the Company, to the effect that such moneys and/or Government
Obligations wil insure, without reinvestment, the availability of suffcient moneys to
make such payment, and a Favorable Opinion of Bond Counsel with respect to such
deposit shall have been delivered to the Trustee. At such times as a Bond shall be
deemed to be paid hereunder, as aforesaid, such Bond shall no longer be secured by or
entitled to the benefits of this Indenture, except for the purposes of registration and
exchange of Bonds and of any such payment from such moneys or Government
Obligations.
The foregoing provisions of this paragraph shall apply only if (x) such Bond is to mature or be
called for redemption prior to the next date upon which such Bond is subject to purchase
pursuant to Section 3.01 and 3.02 hereof; and (y) the Company has waived, to the satisfaction of
the Trustee, its right to adjust the interest rate borne by such Bond.
No deposit under clause (a)(B) of the preceding paragraph shall be deemed a payment of
such Bonds as aforesaid until: (i) proper notice of redemption of such Bonds shall have been
previously given in accordance with Section 4.05 hereof, or in the event said Bonds are not to be
redeemed within the next succeeding 60 days, until the Company shall have given the Trustee on
behalf of the Issuer, in form satisfactory to the Trustee, irrevocable instructions to notify, as soon
as practicable, the Owners of the Bonds and the Provider in accordance with Section 4.05 hereof,
that the deposit required by clause (a)(B) above has been made with the Trustee and that said
Bonds are deemed to have been paid in accordance with this Article VII and stating the maturity
or redemption date upon which moneys are to be available for the payment of the principal of
and the applicable redemption premium, if any, on said Bonds, plus interest thereon to the due
date thereof; or (ii) the maturity of such Bonds.
Moneys deposited with the Trustee pursuant to this Article VII shall not be withdrawn or
used for any purpose other than, and shall be held in trust for, the payment of the principal of,
premium, if any, and interest on said Bonds or portions thereof, or for the payment of the
purchase price of Bonds in accordance with Section 3.03 hereof; provided that such moneys, if
not then needed for such purpse, shall to the extent practicable, be invested and reinvested in
Government Obligations maturing on or prior to the earlier of (i) the date moneys may be
required for the purchase of Bonds pursuant to Section 3.03 hereof or (ii) the Interest Payment
Date next succeeding the date of investment or reinvestment, and interest earned from such
investments shall be paid over to the Company, as received by the Trustee, free and clear of any
trst, lien or pledge. If payment of less than all the Bonds is to be provided for in the manner
and with the effect provided in this Artcle VII, the Trustee shall select such Bonds or portion of
such Bonds in the manner specified by Section 4.04 hereof for selection for redemption of less
than all Bonds in the principal amount designated to the Trustee by the Company.
Notwithstanding that all or any portion of the Bonds are deemed to be paid within the
meaning of this Artcle VII, the provisions of this Indenture relating to (i) the registration and
exchange of Bonds, (ii) the delivery of Bonds to the Trustee for purchase and the related
obligations of the Trustee with respect thereto, (ii) replacement of mutilated, lost, destroyed or
stolen Bonds, (iv) payment of the Bonds from the moneys deposited as described in this Artcle
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and (v) payment, compensation, reimbursement and indemnification of the Trustee, shall remain
in full force and effect with respect to all Bonds until the Matunty Date or the last date fixed for
redemption of all Bonds pnor to matunty and, in the case of clause (v), shall survive the
termnation of this Indenture.
ARTICLE IX
DEFAULTS AND REMEDIES
Sectin 9.01. Events of DefauÜ. Each of the following events shall constitute and is
referred to in this Indenture as an "Event of Default":
(a) a failure to pay the principal of or premium, if any, on any of the Bonds
when the same shall become due and payable at matunty, upon redemption or otherwise,
subject, however, to Section 3.04b) hereof;
(b) a failure to pay an installment of interest on any of the Bonds, which
failure shall continue for a penod of (i) 60 days after the date upon which such interest
has become due and payable if the Bonds bear interest at a Term Interest Rate, or (ii) two
Business Days after the date upon which such interest has become due and payable if the
Bonds bear interest at a Aexible Interest Rate, a Daily Interest Rate or a Weekly Interest
Rate, subject, however, to Section 3 .00b) hereof;
(c) a failure to pay an amount due in respect of the purchase pnce of Bonds
pursuant to Section 3.01 and Section 3.02 hereof after such payment has become due and
payable;
(d) a failure by the Issuer to observe and perform any covenant, condition,
agreement or provision (other than as specified in Section 9.01 (a), Section 9.01(b) and
Section 9.01(c)) contained in the Bonds or in this Indenture on the par of the Issuer to be
observed or performed, which failure shall continue for a penod of 90 days after wntten
notice, specifying such failure and requesting that it be remedied, shall have been given
to the Issuer and the Company by the Trustee by registered or certified mail which may
give such notice in its discretion and shall give such notice at the wntten request of the
Owners of not less than 33-113% in principal amount of the Bonds then Outstanding,
unless the Trustee, or the Trustee and the Owners of a principal amount of Bonds not less
than the principal amount of Bonds the Owners of which requested such notice, as the
case may be, shall agree in writing to an extension of such period prior to its expiration;
provided however, that the Trustee, or the Trustee and the Owners of such principal
amount of Bonds, as the case may be, shall be deemed to have agreed to an extension of
such period if corrective action is initiated by the Issuer or the Company on behalf of the
Issuer within such period and is being dilgently pursued, which extension shall end 180
days after the date of the written notice of default;
(e) an "Event afDefault" under the Agreement;
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(f) if the Trustee holds First Mortgage Bonds or Additional CoHateral, a
"Completed Default" as such term is defined in Section 65 of the Company Mortgage or
an event of default under the Company Mortgage applicable to the Additional Collateral ~
or
(g) the Trustee's receipt of written notice (which may be given by facsimile)
from the Provider of an event of default under and as defined in the Credit Facility
Agreement and stating that such notice is given pursuant to Section 9.01 of the Indenture
and directing acceleration.
If on the date on which payment of principal of, interest on or other amount in any
respect of the Bonds is due, suffcient moneys are not available to make such payment, the
Trustee shaH promptly give telephonic, electronic mail or facsimile notice of such insufficiency
to the Company (in the case of telephonic notice, given to the person at the telephone number
provided for in Section 3.06(c) hereof).
Sectin 9.02. Acceleration; Other Remedies. (a) If an Event of Default described in
Section 9.01 (a), Section 9.01(b), Section 9.01 (c), Section 9.01(f) or Section 9.01(g) hereof or an
Event of Default described in Section 9.01(e) hereof resulting from an "Event of Default" under
Section 7.01(a) or Section 7.01(c) of the Agreement (to the extent that the Trustee shall have
received written notice or be deemed to have notice pursuant.to the provisions of Section 10.05
hereof) has occurred and has not been cured or waived, then (i) the Trustee may, with the
consent of the Provider (unless a Provider Default shan have occurred and be continuing) or (ii)
the Trustee shall (A) upon the written direction of the Provider (unless a Provider Default shaH
have occurred and be continuing), (B) upon the wntten request of the Owners of not less than 33-
113% in principal amount of the Bonds then Outstading and with the consent of the Provider
(unless a Provider Default shan have occurred and be continuing), or (C) if the Trustee then
holds First Mortgage Bonds, upon the acceleration of the First Mortgage Bonds pursuant to the
provisions of the Company Mortgage, by written notice by registered or certified mail to the
Issuer, the Company and the Provider, declare the Bonds to be immediately due and payable and,
dunng the penod the Credit Facility is in effect, with accrued interest on the Bonds payable on
the Bond Payment Date fixed pursuant to the last paragraph of Section 9.10 hereof, anything in
this Indenture or in the Bonds to the contrary notwithstanding, and the Trustee shall give notice
thereof to the Issuer, the Company., the Remarketing Agent and the Provider and shall give
notice thereof by Mail to aH Owners of Outstanding Bonds, and the Trustee shall as promptly as
practicable draw moneys under the Credit Facilty to the extent available thereunder, in an
amount suffcient to pay principal of and accrued interest on the Bonds payable on the Bond
Payment Date established by the Trustee pursuant to the last paragraph of Section 9.10 hereof.
(b) The provisions of Section 9.02(a) are subject further to the condition that if, so long
as no Credit Facility is in effect, after the principal of the Bonds shan have been so declared to be
due and payable and before any judgment or decree for the payment of the moneys due shaH
have been obtained or entered as hereinafter provided, the Issuer shall cause to be deposited with
the Trustee a sum suffcient to pay all matured installments of interest upon aH Bonds, any
unpaid purchase price and the principal of any and all Bonds which shall have become due
otherwise than by reason of such declaration (with interest upon such principal and, to the extent
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permissible by law, on overdue installments of interest, at the rate per annum then borne by the
Bonds) and such amount as shaH be sufficient to cover reasonable compensation and
reimbursement of expenses payable to the Trustee and all Events of Default (other than
nonpayment of the principal of Bonds which shall have become due by said declaration) shall
have been remedied, then, in every such case, such Event of Default shall be deemed waived and
such declaration and its consequences rescinded and annulled, and the Trustee shall promptly
give written notice of such waiver, rescission or annulment to the Issuer and the Company, and
shall give notice thereof by Mail to all Owners of Outstanding Bonds; provided, however, that no
such waiver, rescission and annulment shall extend to or affect any other Event of Default or
subsequent Event of Default or impair any right, power or remedy consequent thereon.
The provisions of Section 9.02(a) are further subject to the condition that, if an Event of
Default describe in clause (g) of Section 9.01 hereof shall have occurred and if the Trustee shan
thereafter have received written notice from the Prvider (i) that the notice which caused such
Event of Default to occur has been withdrawn and (ii) that the amounts available to be drawn on
the Credit Facility to pay (A) the principal of the Bonds or the porton of purchase price equal to
principal and (B) interest on the Bonds and the portion of purchase price equal to accrued interest
have been reinstated to an amount equal to the principal amount of the Bonds Outstanding plus
accrued interest thereon for the applicable Interest Coverage Period at the Interest Coverage
Rate, then, in every such case, such Event of Default shaH be deemed waived and its
consequences rescinded and annulled, and the Trustee shall promptly give written notice of such
waiver, rescission and annulment to the Issuer, the Company, the Provider and the Remarketing
Agent, and, if notice of the acceleration of the Bonds shall have been given to the Owners of
Bonds, shall give notice thereof by Mail to all Owners of Outstanding Bonds; but no such
waiver, rescission and annulment shall extend to or affect any subsequent Event of Default or
impair any right or remedy consequent thereon.
If the Trustee holds First Mortgage Bonds or Additional Collateral, the provisions of
Section 9.02(a) are, further, subject to the condition that any waiver of any "Completed Default"
or event of default under the Company Mortgage and a rescission and annulment of its
consequences (assuming that the First Mortgage Bonds or the Additional Collateral are not
otherwise to be mandatorily redeemed at the time of such waiver, rescission and annulment)
shall constitute a waiver of the corresponding Event or Events of Default and a rescission and
annulment of the consequences thereof; provided, however, in the event that the Credit Facilty
has been drawn upon to pay the principal of and interest on the Bonds upon acceleration, no
"Completed Default" or event of default under the Company Mortgage shall be waived unless
(in addition to the applicable conditions as aforesaid) the Trustee shall. have received written
notice from the Provider that the amounts available to be drawn on the Credit Facilty to pay
(A) the principal of the Bonds or the porton of purchase price equal to principal and (B) interest
on the Bonds and the portion of purchase price equal to accrued interest have been reinstated to
an amount equal to the principal amount of the Bonds Outstanding plus accrued interest thereon
for the applicable Interest Coverage Penod at the Interest Coverage Rate. The Trustee shall
promptly give written notice of such waiver, rescission or annulment to the Issuer, the Company
and the Provider and shall give notice thereof by Mail to all Owners of Outstanding Bonds;
provided that it is deemed to have notice thereof under Section 10.05 hereof; but no such waiver,
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rescission and annulment shall extend to or affect any other Event of Default or any subsequent
Event of Default or impair any right or remedy consequent thereon.
(c) Upon the occurrence and continuance of any Event of Default, then and in every
such case the Trustee in its discretion, with the consent of the Provider (unless a Provider Default
shall have occurred and be continuing) may, and upon the written request of the Owners of not
less than 33-1/3% in principal amount of the Bonds then Outstanding and with the consent of the
Provider (unless a Provider Default shall have occurred and be continuing) and upon receipt of
indemnity to its satisfaction (except against negligence or wilful misconduct) shall in its own
name and as the Trustee of an express trst:
(i) by mandamus, or other suit, action or proceeding at law or in equity,
enforce all nghts of the Owners under, and require the Issuer, the Company or the
Provider to carry out any agreements with or for the benefit of the Owners of Bonds and
to pedorm its or their duties under, the Act, the Agreement, this Indenture, the Credit
Facility and the Credit Facility Agreement, provided that any such remedy may be taken
only to the extent permitted under the applicable provisions of the Agreement or this
Indenture, as the case may be;
(ii) bring suit upon the Bonds;
(iii) by action or suit in equity require the Issuer to account as if it were the
trustee of an express trust for the Owners of Bonds;
(iv) by action or suit in equity enjoin any acts or things which may be unlawful
or in violation of the rights of the Owners of Bonds; or
(v) if the Trustee holds First Mortgage Bonds and except as otherwise limited
by this Indentue or the Company Supplemental Indenture, exercise any and all rights
then available to the Trustee as a holder of the First Mortgage Bonds under the Company
Mortgage.
Anything in this Indenture to the contrary notwithstanding, upon the occurrence and
continuance of an Event of Default, the Provider (unless a Provider Default shall have occured
and be continuing) shall be entitled (subject to Section 9.04) to control and direct the
enforcement of all rights and remedies granted to the Owners of the Bonds or the Trustee for the
benefit of such Owners under this Indenture and shall be entitled to consent to any request or
direction of the Owners as a condition to the effectiveness of any such request or direction.
(d) The Trustee shall waive any Event of Default hereunder and its consequences and
rescind any declaration of acceleration of principal upon (i) the written direction of the Provider
(unless a Provider Default shall have occurred and be continuing) and (ii) the written request of
the Owners of (A) more than a majority in principal amount of all Outstanding Bonds in respect
of which default in the payment of principal or purchase price of or interest on the Bonds exists
or (B) more than a majority in principal amount of all Outstanding Bonds in the case of any other
Event of Default; provided, however, that any Event of Default under Section 9.01 (g) hereof may
- 63-Senes 2010B Trust Indenture
be waived only as provided in the second paragraph of 9.02(b); provided, further, that (x) there
shall not be waived any Event of Default specified in Section 9.01 (a), Section 9.0J(b) or
Section 9.01(c) hereof unless pnor to such waiver or rescission the Issuer shall have caused to be
deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all
Bonds and the pnncipal and purchase price of any and all Bonds which shall have become due
otherwise than by reason of such declaration of acceleration (with interest upon such principal
and, to the extent permissible by law, on overdue installments of interest, at the rate per annum
then borne by the Bonds), (y) in the event that the Credit Facility has been drawn upon to pay the
pnncipal of and interest on the Bonds upon acceleration, no Event of Default shall be waived
unless (in addition to the applicable conditions as aforesaid) the Trustee shall have received
written notice from the Provider that the amounts available to be drawn on the Credit Facilty to
pay (A) the principal of the Bonds or the portion of purchase pnce equal to principal and
(B) interest on the Bonds and the porton of purchase price equal to accrued interest have been
reinstated to an amount equal to the principal amount of the Bonds Outstanding plus accrued
interest thereon for the applicable Interest Coverage Period at the Interest Coverage Rate and (z)
no Event of Default shall be waived unless (in addition to the applicable conditions as aforesaid)
there shall have been deposited with the Trustee such amount as shall be suffcient to cover
reasonable compensation and reimbursement of expenses payable to the Trustee. In case of any
waiver or rescission described above, or in case any proceeding taken by the Trustee on account
of any such Event of Default shall have ben discontinued or concluded or determined adversely.
then and in every such case the Issuer, the Trustee and the Owners of Bonds shall be restored to
their former positions and rights hereunder, respectively; provided, further, that no such waiveror rescission shall extend to any subsequent or other Event of Default, or impair any right
consequent thereon.
(e) Nothing herein shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Owner of Bonds any plan of reorganization, arrangement,
adjustment, or composition affecting the Bonds or the rights of any Owner of Bonds thereof, or
to authorize the Trustee to vote in respect of the claim of any Owner of Bonds in any such
proceeding without the approval of the Owners of Bonds so affected.
Section 9.03. Restoration to Former Position. In the event that any proceeding taken by
the Trustee to enforce any right under this Indenture shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to the Trustee, then the Issuer, the
Trustee and the Owners of Bonds shall be restored to their former positions and rights hereunder,
respectively, and an rights, remedies and powers of the Trustee shan continue as though no such
proceeding had been taken.
Section 9.04. Owners' Right to Direct Proceedings. Anything in this Indenture to the
contrary notwithstanding, upon the occurrence and continuance of an Event of Default, the
Provider (provided that a Provider Default shall not have occurred and be continuing) or the
Owners of a majority in principal amount of the Bonds then Outstanding, with the consent of the
Provider (provided that a Provider Default shall not have occurrd and be continuing), shall have
the right, by an instrument in writing executed and delivered to the Trustee and upon furnishing
to the Trustee indemnity satisfactory to it (except against negligence or wilful misconduct), to
direct the time, method and place of conducting all remedial proceedings available to the Trustee
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under this Indenture or exercising any trst or power conferred on the Trustee by this Indenture;
provided that such direction shall not be other than in accordance with the provisions of law, the
Agreement and this Indenture and shall not result in any personal liability of the Trustee.
Section 9.05. Limitation on Owners' Right to Instiute Proceedings. No Owner shall
have any nght to institute any suit, action or proceeding in equity or at law for the execution of
any trust or power hereunder, or any other remedy hereunder or in the Bonds, unless such Owner
previously shall have given to the Trustee wntten notice of an Event of Default as herein above
provided and unless the Owners of not less than 33-113% in pnncipal amount of the Bonds then
Outstanding shall have made wntten request of the Trustee so to do after the nght to institute
said suit, action or proceeding under Section 9.02 hereof shall have accrued, and shall have
afforded the Trustee a reasonable opportunity to proceed to institute the same in either its or their
name, and unless there also shall have been offered to the Trustee secunty and indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby
(except against negligence or wilful misconduct), and the Trustee shall not have complied with
such request within a reasonable time; and such notification, request and offer of indemnity are
hereby declared in every such case, at the option of the Trustee, to be conditions precedent to the
institution of said suit, action or proceeding, it being understood and intended that no one or
more of the Owners shall have any right in any manner whatever by his or their action to affect,
disturb or prejudice the secunty of this Indenture, or to enforce any right hereunder or under the
Bonds, except in the manner herein provided, and that all suits, actions and proceedings at law or
in equity shall be instituted, had and maintained in the manner herein provided and for the equal
benefit of all Owners.
Section 9.06. No Impairment of Right to Enforce Payment. Notwithstanding any other
provision in this Indenture, the nght of any Owner to receive payment of the pnncipal or
purchase price of, and premium, if any, and interest on, its Bond, on or after the respective due
dates expressed therein, or to institute suit for the enforcement of any such payment on or after
the respective due dates expressed therein, shall not be impaired or affected without the consent
of such Owner.
Sectin 9.07. Proceedings by Trustee Without Possession of Bonds. All rights of action
under this Indenture or under any of the Bonds secured hereby which are enforceable by the
Trustee may be enforced by it without the possession of any of the Bonds, or the production
thereof at the tnal or other proceedings relative thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the equal and ratable benefit of the
Owners, subject to the provisions of this Indenture.
Sectin 9.08. No Remedy Exclusive. Except as provided in Section 2.12, no remedy
herein conferred upon or reserved to the Trustee or to the Owners is intended to be exclusive of
any other remedy or remedies, and each and every such remedy shall be cumulative, and shall be
in addition to every other remedy given hereunder or under the Agreement, or now or hereafter
existing at law or in equity or by statute; provided, however, that any conditions set forth herein
to the taking of any remedy to enforce the provisions of this Indenture, the Bonds or the
Agreement shall also be conditions to seeking any remedies under any of the foregoing pursuant
to this Section 9.08.
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Section 9.09. No Waiver of Remedies. No delay or omission of the Trustee, the Provider
or of any Owner to exercise any nght or power accruing upon any Event of Default shall impair
any such nght or power or shall be construed to be a waiver of any such Event of Default, or an
acquiescence therein; and every power and remedy given by this Article ix to the Trustee, the
Provider and to the Owners, respectively, may be exercised from time to time and as often as
may be deemed expedient.
Sectin 9.10. Applicatn of Moneys. Any moneys received by the Trustee, by any
receiver or by any Owner pursuant to any nght given or action taken under the provisions of this
Artcle ix, after payment of the fees, costs and expenses, liabilities and advances incurred or
made by the Trustee or its agents or counsel (provided that moneys received under the Credit
Facility for the pnncipal of interest on the Bonds, remarketing proceeds or other moneys held for
Bonds not presented for payment or deemed paid pursuant to Section 3.06d), Section 6.04 or
Artcle VIl hereof shall not be used for purpses other than payment of such Bonds), shall be
deposited in the Bond Fund and all moneys so deposited in the Bond Fund dunng the
continuance of an Event of Default (other than moneys for the payment of Bonds which had
matured or otherwise become payable pnor to such Event of Default or for the payment of
interest due pnor to such Event of Default) shall be applied as follows:
(a) Unless the pnncipal of all the Bonds shall have been declared due and
payable, all such moneys shall be applied (i) first, to the payment to the persons entitled
thereto of all instalments of interest then due on each Bond, with interest on overdue
instalments of interest, if lawful at the rate per annum then borne by such Bond, in the
order of matunty of the installments of such interest and, if the amount available shall not
be suffcient to pay in full any particular installment of interest, then to the payment
ratably, according to the amounts due on such installment, and (ii) second, to the payment
to the persons entitled thereto of the unpaid pnncipal of any of the Bonds which shall
have become due (other than Bonds called for redemption for the payment of which
money is held pursuant to the provisions of this Indenture) with interest on each Bond at
its rate from the respective dates upon which it became due and, if the amount available
shall not be sufficient to pay in full Bonds due on any particular date, together with such
interest, then to the payment ratably, according to the amount of pnncipal and interest
due on such date, in each case to the persons entitled thereto, without any discrimination
or pnvilege.
(b) If the pnncipal of all the Bonds shall have been declared due and payable,
all such moneys shall be applied to the payment of the pnncipal and interest then due and
unpaid upon the Bonds, with interest on overdue interest and pnncipal as aforesaid,
without preference or prionty of pnncipal over interest or interest over pnncipal or of any
installment of interest over any other installment of interest, or of any Bond over any
other Bond, ratably, according to the amounts due respectively for pnncipal and interest,
to the persons entitled thereto without any discnmination or privilege.
(c) If the principal of all the Bonds shall have been declared due and payable,
and if such declaration shall thereafter have been rescinded and annulled under the
provisions of this Article then, subject to the provisions of subparagraph (b) of this
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Section 9.10 which shall be applicable in the event that the principal of all the Bonds
shall later become due and payable, the moneys shall be applied in accordance with the
provisions of subparagraph (a) of this Section 9.10.
Anything herein to the contrary notwithstanding, in no event shall the Trustee draw on
the Credit Facility to make any payment of principal of Pledged Bonds or Bonds held of record
by the Company or any payment of interest on any Interest Payment Date on Bonds which as of
the Record Date for such Interest Payment Date were Pledged Bonds or Bonds held of record by
the Company.
Whenever moneys are to be applied pursuant to the provisions of this Section 9.10, such
moneys shall be applied at such times, and from time to time, as the Trustee shall determne,
having due regard to the amount of such moneys available for application and the likelihood of
additional moneys becoming available for such application in the future. Whenever the Trustee
shall apply such funds, it shan fix the Bond Payment Date upon which such application is to
commence and upon such Bond Payment Date interest on the amounts of principal and interest
to be paid on such Bond Payment Date shall cease to accrue. When the Credit Facilty is in
effect, such Bond Payment Date may be fixed as the date of acceleration or the first or second
Business Day thereafter; provided, however, that the Bond Payment Date shall not be later than
the date of acceleration unless moneys shall be available to be drawn under the Credit Facility to
pay accrued interest on the Bonds payable on such Bond Payment Date. The Trustee shall give
notice of the deposit with it of any such moneys and of the fixing of any such Bond Payment
Date by Mail to the Provider andaJl Owners of Outstanding Bonds and shall not be required to
make payment to any Owner until such Bond shall be presented to the Trustee for appropriate
endorsement or cancellation if fully paid.
Section 9.11. Severability of Remedies. It is the purpose and intention of this Article ix
to provide rights and remedies to the Trustee, the Provider and the Owners which may be
lawfully granted under the provisions of the Act, but should any right or remedy herein granted
be held to be unlawful the Trustee, the Provider and the Owners shall be entitled, as above set
forth, to every other right and remedy provided in this Indenture and by law.
ARTICLE X
TRUSTEE; PAYING AGENT; REGlS'fR; REMARKTING AGENT
Sectin 10.01. Acceptance o/Truts. The Issuer appoints The Bank of New York Mellon
Trust Company, NA., as Trustee and Paying Agent. The Trustee hereby accepts and agrees to
execute the trsts hereby created, but only upon the additional terms set fort in this Article X, to
all of which the Issuer agrees and the respective Owners agree by their acceptance of delivery of
any of the Bonds. The Trustee, prior to the occurrence of an Event of Default and after the
cunng of all Events of Default, undertakes to pedorm such duties and only such duties as are
specifically set forth herein and no implied covenant shall be read into this Indenture.
- 67-Series 20108 Trut Indenture
Sectìn 10.02. No Responsibilities for Recitals. The recitals, statements and
representations contained in this Indenture or in the Bonds, save only the Trustee's
authentication upon the Bonds, shall not be taken and construed as made by or on the part of the
Trustee, and the Trustee does not assume, and shall not have, any responsibilty or obligation for
the correctness of any thereof or for the validity, sufficiency or pnonty of this Indenture, the
Agreement, or any First Mortgage Bonds, or the pedection or the maintenance of the pedection
of any security interest granted hereby, or for the validity, enforceabilty or the pnonty of the
lien of the Company Mortgage.
Sectìn 10.03. Limitions on Liabilit. The Trustee may execute any of the trusts or
powers hereof and pedorm the duties required of it hereunder by or through attorneys, agents,
receivers or employees, and shall be entitled to advice of counsel concerning an matters of trust
and its duties hereunder and shall not be answerable for the conduct of any such attorney, agent,
receiver or employee if appointed by the Trustee with reasonable care, and the advice of any
such counsel shall be fun and complete authorization and protection in respect of any action
taken, suffered or omitted hereunder in good faith and reliance thereon. The Trustee shaH not be
answerable for the exercise of any discretion or power under this Indenture or for anything
whatsoever in connection with the trsts created hereby, except only for its own negligence or
wiUful misconduct.
The Trustee shall not be liable with respect to any action taen or omitted to be taen by
it in good faith in accordance with the direction of the Provider or the Owners of a majonty in
aggregate pnncipal amount of the Bonds Outstanding relating to the time, method and place of
conducting any proceeding or any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture.
No provision of this Indenture shall require the Trustee to expend or nsk its own funds or
otherwise incur any financial liabilty in the pedormance of any of its duties hereunder, or in the
exercise of any of its nghts or powers.
The permissive rights of the Trustee to do things enumerated in this Trust Indenture shall
not be constred as a duty unless so specified herein.
The Trustee shall not be liable for any error of judgment made in goo faith by an offcer,
director or employee unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts.
The Trustee shall be under no obligation to exercise any of the nghts or powers vested in
it by this Indenture at the request, order or direction of any of the Provider or the Owners
pursuant to the provisions of this Trust Indenture unless such Owners shall have offered to the
Trustee secunty or indemnity satisfactory to it against the costs, expenses and liabilties which
may be incurred therein or thereby, except for drawings on the Credit Facility and for dedanng
an acceleration of the Bonds under Section 9.02 hereof.
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Whether or not expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of the Trustee shaH be subject to the provisions of this Artcle X
and shall extend to the Registrar, Paying Agents, and employees and agents of the Trustee.
The Trustee shall not be liable to the parties hereto or deemed in breach or default
hereunder if and to the extent its pedormance hereunder is prevented by reason of force majeure.
The term "force majeure" means an occurrence that is beyond the control of the Trutee and
could not have been avoided by exercising due care. Force majeure shall include acts of God,
terrorism, war, riots, stnkes, fire, floos, earthquakes, epidemics or other similar occurrences.
The Trustee agrees to accept and act upon instrctions or directions pursuant to this
Indenture sent by unsecured electronic mail, facsimile transmission or other similar unsecured
electronic methods; provided, however, that, the Trustee shall have received an incumbency
certificate listing persons designated to give such instrctions or directions and containing
specimen signatures of such designated persons, which such incumbency certficate shaH be
amended and replaced whenever a person is to be added or deleted from the listing. If the Issuer
or the Company elects to give the Trustee electronic mail or facsimile instrctions (or
instructions by a similar electronic method) and the Trustee acts upon such instructions, the
Trustee's understanding of such instructions shall be deemed controllng. The Trustee shall not
be liable for any losses, costs or expenses arising directly or indirectly from the Trustee's
reliance upon and compliance with such instrctions notwithstanding such instructions conflct
or are inconsistent with a subsequent written instrction. The Issuer and the Company agree to
assume all risks arising out of the use of such electronic methods to submit instrctions and
directions to the Trustee, including without limitation the risk of the Trustee acting on
unauthorized instrctions, and the nsk of interception and misuse by third paries.
The Trustee shall have no responsibility or liability with respect to any information,
statements or recitas in any offering memorandum or other disclosure material prepared or
distributed with respect to the issuance of these Bonds.
The Trustee shall not be accountable for the use or application by the Company of any of
the Bonds or the proceeds thereof or for the use or application of any money paid over by the
Trustee in accordance with the provisions of this Indenture.
In acting or omitting to act pursuant to the Agreement, the Tax Certificate or any other
document executed in connection herewith, the Trustee shall be entitled to all of the rights,
immunities and indemnities accorded to it under this Indenture and the Agreement, including,
but not limited to, this Article X.
Sectin 10.04. Compensaton~ Expenses and Advances. The Trustee, the Paying Agent
and the Registrar shall be entitled to such compensation as shall be agreed in' writing with the
Company for their services rendered hereunder (not limited by any provision of law in regard to
the compensation of the trstee of an express trust) and to reimbursement for their actual out-of-
pocket expenses (including reasonable counsel fees and expenses) reasonably incurred in
connection therewith except as a result of their negligence or wilful misconduct. If the Issuer
shall fail to pedorm any of the covenants or agreements contained in this Indenture, the Trustee
- 69-Series 2010B Trust Indenture
may, in its uncontroHed discretion and without notice to the Owners, at any time and from time
to time, make advances to effect pedormance of the same on behalf of the Issuer, but the Trustee
shaH be under no obli gation so to do; and any and all such advances shaH bear interest at a rate
per annum equal to the lesser of the Maximum Interest Rate and the rate of interest then in effect
and as published in the Wall Street Journal as the composite pnme lending rate for domestic
commercial loans; but no such advance shall operate to relieve the Issuer from any Event of
Default. In no event shall the Trustee be liable for any claims resulting from any decision on its
part not to advance funds as permitted in the immediately preceding sentence. In the Agreement,
the Company has agreed that it wil pay to the Trustee, the Paying Agent, and the Registrar
compensation and reimbursement of expenses and advances and certin indemnities, but the
Company may, without creating an Event of Default, contest in good faith the reasonableness of
any such expenses. If the Company shaii have failed to make any payment to the Trustee, the
Paying Agent or the Registrar under the Agreement, then each of the Trustee, the Paying Agent
and the Registrar shaii have, in addition to any other rights hereunder, a claim, prior to the claim
of the Owners, for the payment of their compensation and indemnitees and the reimbursement of
their expenses and any advances made by them, as provided in this Section 10.04, upon the
moneys and obligations in the Bond Fund, except for moneys received under the Credit Facility,
remarketing proceeds and moneys or obligations deposited with or paid to the Trustee for the
redemption or payment of Bonds which are deemed to have been paid in accordance with Article
VIII hereof, or funds held pursuant to Section 6.04 hereof.
Without prejudice to any other nghts available to the Trustee under applicable law, when
the Trustee incurs expenses or renders services in connection with an Event of Default specified
in Section 7.01(c) of the Agreement, the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy, insolvency or other
similar law.
The provisions of this Section 10.04 shall survive the termination of this Indenture and
the earlier removal or resignation of the Trustee.
Section 10.05. Notice of Events of Default and Determination of Taxabilit. The TrusteeshaH not be required to take notice, or be deemed to have notice (a) of any default or Event of
Default, other than an Event of Default under Section 9.01 (a), Section 9.01(b) or Section 9.01(c)hereof, (b) of any Provider Default, (c) of any declaration of acceleration of any First Mortgage
Bonds, or (d) any waiver of any "Completed Default" under the Company Mortgage or any
rescission or annulment of its consequences unless a Responsible Ofcer of the Trustee shall
have been specifically notified in wnting at the Prncipal Office of the Trustee, Attention:
Corporate Trust Administration, of such Event of Default or Provider Default by the Owners of
at least 25% in pnncipal amount of the Bonds then Outstanding, the Issuer, the Company, the
Provider or the Remarketing Agent. The Trustee may (but is not obligated to), however, at any
time, in its discretion, require of the Issuer fuH information and cooperation as to the
pedormance of any of the covenants, conditions and agreements contained herein. Such inquiry
shall not for the purpses of this Section 10.05 constitute notice of any Event of Default. The
Issuer shaH not be required to take notice, or be deemed to have notice, of any Event of Default,
other than an Event of Default of which it shall have actual knowledge. If an Event of Default
-70 -Series 2OIOB Tnisil.ndeniure
occurs after the Trustee has notice of the same as provided in this Section 10.05, or if a
Determination of Taxability occurs of which the Trustee has actual knowledge, then the Trustee
shall give notice thereof by Mail to the Provider, the Remarketing Agent and the Owners of
Outstanding Bonds.
Section 10.06. Action by Truee. Except as provided in Section 2.16, Section 3.03 and
Section 9.02 hereof and except for the payment of principal of, and premium, if any, and interest
on, the Bonds when due from moneys held by the Trustee as part of the Trust Estate, the Trustee
shall be under no obligation to take any action in respect of any Event of Default or toward the
execution or enforcement of any of the trusts hereby created, or to institute, appear in or defend
any suit or other proceeding in connection therewith, unless requested in writing so to do by the
Provider or the Owners of at least 33-l/3% in principal amount of the Bonds then Outstanding
and, unless furnished, from time to time as often as it may require, with security and indemnity
satisfactory to it (except against negligence or wilful misconduct); but the foregoing provisions
are intended only for the protection of the Trustee, and shall not affect any discretion or power
given by any provisions of this Indenture to the Trustee to take action in respect of any Event of
Default without such notice or request from the Owners, or without such security or indemnity.
Notwithstanding any other provision of this Indenture, in determining whether the rights
of the Owners wil be adversely affected by any action taken pursuant to the terms and
provisions of this Indenture, the Trustee shall consider the effect on the Owners as if there were
no Credit Facilty .
Sectin 10.07. Good-Faih Reliace. The Trustee, the Registrar, the Provider and the
Remarketing Agent, shall be protected and shall incur no liability in acting or proceeding in goo
faith upon any resolution, notice, telegram, telex or facsimile transmission, request, consent,
waiver, certificate, statement, affdavit, voucher, bond, requisition or other paper or document
which it shall in good faith believe to be genuine and to have been passed or signed by the proper
board, boy or person or to have been prepared and furnished pursuant to any of the provisions
of this Indenture, the Agreement, the Credit Facility Agreement or the Company Mortgage (if the
Trustee holds First Mortgage Bonds), or upon the written opinion of any attorney, engineer,
accountant or other expert believed, without independent investigation, by the Trustee, the
Registrar, the Provider or the Remarketing Agent, as the case may be, to be qualified in relation
to the subject matter. The Trustee, the Registrar, the Provider and the Remarketing Agent, shall
be under no duty to make any investigation or inquiry as to any statements contained or matters
referred to in any such instrument, but may accept and rely upon the same as conclusive
evidence of the truth and accuracy of such statements; provided, however, that the Trustee may.
in its discretion, make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such furter inquiry or investigation it shall be
entitled to examine the boks, records and premises of the Company personally or by agent or
attorney. Neither the Trustee, the Registrar, the Provider nor the Remarketing Agent shall be
bound to recognize any person as an Owner or to take any action at such person's request unless
satisfactory evidence of the ownership of such Bond shall be furnished to such entity.
Whenever in the administration of this Indenture the Trustee shall deem it desirable tbàt a
matter be proved or established prior to taking, suffering or omitting any action hereunder, the
-71 -Senes 20lOB Trust Indenture
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of
negligence or bad faith on its part. request and conclusively rely upon a certificate of an
Authorized Company Representative or an Executive Officer.
The Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.
Notwithstanding anything elsewhere in this Indenture contained. the Trustee shall have
the right, but shall not be required, to demand, in respect of the authentication of any Bonds or
the taking of any other action whatsoever within the purview of this Indenture or the Agreement,
any showings, certificates, opinions or other information, or corporate action or evidence thereof,
in addition to those by the terms hereof or thereof required as a condition of such action which
are reasonably deemed desirable by the Trustee for the purpse of establishing the right of the
Issuer or the Company to request the taking of such action by the Trustee.
Section 10.08. Dealings in Bonds; Allowance of Interest. The Trustee, the Registrar, the
Provider. or the Remarketing Agent. in each of their individual capacities, may in good faith buy,
sell own, hold and deal in any of the Bonds issued hereunder, or any bonds issued under the
Company Mortgage, and may join in any action which any Owner may be entitled to take with
like effect as if it did not act in any capacity hereunder. The Trustee, the Registrar. the Provider.
or the Remarketing Agent. in each of their individual capacities, either as principal or agent, may
also engage in or be interested in any financial or other transaction with the Issuer or the
Company, and may act as depositary, trustee or agent for any committee or body of Owners
secured hereby or other obligations of the Issuer or the Company as freely as if it did not act in
any capacity hereunder.
All moneys received by the Trustee shall, until used or applied as herein provided. be
held in trust for the purpses for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no liability for
interest on any moneys received hereunder except such as it may agree with the Company to pay
thereon.
Sectin 10.09. Several Capacities. Anything in this Indenture to the contrary
notwithstanding, the same entity may serve hereunder as the Trustee, the Registrar, the Paying
Agent and the Remarketing Agent and in any other combination of such capacities. to the extent
permitted by law. For purposes of this Trust Indenture, the Remarketing Agent shall not be
deemed to be an agent or representative of the Trustee.
Section 10.10. Resignaion of Trustee. The Trustee may resign and be discharged of the
trusts created by this Indenture by executing any instrment in writing resigning such trust and
specifying the date when such resignation shall take effect. and filng the same with the Issuer,
the Company. the Registrar, the Provider, and the Remarketing Agent not less than 45 days
before the date specified in such instrment when such resignation shall take effect, and by
giving notice of such resignation by Mail not less than three weeks prior to such resignation date,
-72 -Series 20lOB Trust Indenture
to all Owners of Bonds. Such resignation shall take effect on the day specified in such
instrument and notice, unless previously a successor Trustee shall have been appointed as
hereinafter provided, in which event such resignation shall take effect immediately upon the
appointment of such successor Trustee, but in no event shall a resignation take effect earlier than
the date on which a successor Trustee has been appointed and has accepted its appointment and
has received transfer of the rights of the Trustee under the Credit Facility.
Sectìon 10.11. Removal of Trustee. (a) The Trustee may be removed at any time by filing
with the Trustee so removed and with the Issuer, the Company, the Registrar, the Provider, and
the Remarketing Agent, an instrument or instruments in writing executed by (i) the Provider, if
no Provider Default or Event of Default shall have occurred and be continuing and if the Trustee
has acted or failed to act hereunder in a manner that is contrary to the standard of care of the
Trustee provided for herein, or (ii) the Owners of not less than a majority in principal amount of
the Bonds then Outstanding and, if no Provider Default shall have occurred and be continuing,
the Provider.
(b) The Issuer may, and, so long as no default or Event of Default is then existing under
Section 7.01 of the Agreement or Section 9.01(a), (b) or (c) of this Indenture, at the request of
the Company wil, remove the Trustee if (i) the Trustee fails to comply with Section 10.l3(a),
(b), (c) or (e) hereof, (ii) the Trustee is adjudged a bankrpt or an insolvent, (iii) a receiver or
other public offcer takes charge of the Trustee or its propert or (iv) the Trustee otherwise
becomes incapable of acting.
(c) In no event shall a removal take effect earlier than the date on which a successor
Trustee has been appointed and has accepted its appointment.
Sectin 10.12. Appointment of Successor Trustee. In case at any time the Trustee shall be
removed, or be dissolved, or if its propert or afairs shall be taken under the control of any state
or federal court or administrative body because of insolvency or bankruptcy, or for any other
reason, then a vacancy shall fortwith and ipso facto exist in the offce of Trustee and a
successor may be appointed, and in case at any time the Trustee shall resign, then a successor
may be appointed by filng with the Issuer, the Company, the Registrar and the Remarketing
Agent an instrument in writing executed by (i) the Provider, if no Provider Default shall have
occurred and be continuing, or (ii) the Owners of not less than a majonty in principal amount of
the Bonds then Outstanding and, if no Provider Default shall have occurred and be continuing,
the Provider, or (ii) the Company if no default or Event of Default is then existing under
Section 7.01 of the Agreement or Section 9.01(a), (b) or (c) of this Indenture. Copies of such
instrment shall be promptly delivered by the Issuer to the predecessor Trustee and to the
Trustee so appointed.
Until a successor Trustee shall be appointed by the Provider, the Owners or by the
Company as herein authorized, the Issuer, by an instrument authorized by the governing body of
the Issuer, shall appoint a successor Trustee acceptable to the Company and the Provider. After
any appointment by the Issuer, it shall cause notice of such appointment to be given to the
Remarketing Agent and the Registrar and to be given by Mail to all Owners of Bonds. Any new
-73 -Senes 2010B Trust Indnture
Trustee so appointed by the Issuer shall immediately and without farther act be superseded by a
Trustee appointed by the Owners, the Company or the Provider in the manner above provided.
Section 10.13. Qualificatns of Successor Trustee. Every successor Trustee (a) shall be a
national or state bank, in either case with trust powers, or trust company that is authonzed by law
to perform all the duties imposed upon it by this Indenture, (b) shall have (or, in the case of a
corporation included in a bank holding company system, the related bank holding company shall
have) a combined capital and surplus of at least $50,000,00 as set forth in its (or its related bank
holding company's) most recent published annual report of condition, (c) shall be permitted
under the Act to perform the duties of Trustee, (d) shall be acceptable to the Provider and shall
agree with the Provider to act as agent for the Provider with respect to Pledged Bonds, and (d) so
long as the Bonds are subject to optional or mandatory purchase pursuant to the provisions of
this Indenture and no book-entr system for the Bonds is in effect pursuant to Section 2.15
hereof, shall have an office or agency located in any State of the United States of Amenca if
there can be located, with reasonable effort, such an institution willng and able to accept the
trust on reasonable and customary terms.
Section 10.14. Judicial Appointment of Successor Trustee. In case at any time the
Trustee shall resign and no appointment of a successor Trustee shall be made pursuant to the
foregoing provisions of this Article X pnor to the date specified in the notice of resignation as
the date when such resignation is to take effect, the resigning Trustee may forthwith apply to a
court of competent junsdiction for the appointment of a successor Trustee. If no appointment of
a successor Trustee shall be made pursuant to the foregoing provisions of this Article X within
six months after a vacancy shall have occurred in the offce of Trustee, any Owner or the
Provider may apply to any court of competent Junsdiction to appoint a successor Trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and prescnbe, appoint a
successor Trustee.
Section 10.15. Acceptance of Trusts by Successor Trustee. Any successor Trustee
appointed hereunder shall execute, acknowledge and deliver to the Issuer an instrment
accepting such appointment hereunder, and thereupon such successor Trustee, without any
further act, deed or conveyance, shall become duly vested with all the estates, propert nghts,
powers, trusts, duties and obligations of its predecessor in the trst hereunder, with like effect as
if onginally named Trustee herein. Upon request of such Trustee, such predecessor Trustee and
the Issuer shall execute and deliver an instrument transferrng to such successor Trustee all the
estates, property, nghts, powers and trusts hereunder of such predecessor Trustee and, subject to
the provisions of Section lOJ)4 hereof, such predecessor Trustee shall pay over to the successor
Trustee all moneys and other assets at the time held by it hereunder.
Section 10.16. Successor by Merger or Consolidation. Any corporation into which any
Trustee hereunder may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which any Trutee hereunder shall be a
pary, or to which all or substantially all of its corprate trst business shall be transferred, shall
be the successor Trustee under this Indenture, without the execution or filing of any paper or any
further act on the part of the parties hereto, anything in ths Indenture to the contrary
notwithstanding; provided, however, if such successor corpration is not a trust company or state
-74-Series 20IOB Trust Indenture
or national bank that has trust powers. the Trustee shall resign from the trusts hereby created
pnor to such merger, transfer or consolidation or the successor corporation shall resign from
such trusts as soon as practicable after such merger, transfer or consolidation.
Section 10.17. Standard ofeare. Notwithstanding any other provisions of this Artcle X,
the Trustee shall, dunng the existence and pnor to the curing of an Event of Default of which the
Trustee has notice as provided in Section 10.05 hereof, exercise such of the rights and powers
vested in it by this Indenture and use the same degree of ski)) and care in their exercise as a
prudent person would use and exercise under the circumstances in the conduct of his own affairs.
Section 10.18. Intervention in Litgatn of the Issuer. In any judicial proceeding to
which the Issuer is a pary and which in the opinion of the Trustee and its counsel has a
substantial bearing on the interests of the Owners of the Bonds, the Trustee may and shall upon
receipt of indemnity satisfactory to it (except against negligence or wilful misconduct) at the
written request of the Owners of at least 25% in principal amount of the Bonds then Outstanding
and if permitted by the court having jurisdiction in the premises, intervene in such judicial
proceeding.
Section 10.19. Remarketing Agent. The Company has covenanted in the Agreement that
at all times while any of the Bonds are Outstanding and are subject to optional or mandatory
purchase pursuant to the provisions hereof there shall be a Remarketing Agent for the Bonds
appointed and acting pursuant to the provisions of this Indenture. The Remarketing Agent shall
designate its Prncipal Office to the Trustee. the Company, the Registrar, the Provider and the
Issuer.
The Issuer shall cooperate with the Trustee, the Registrar, the Provider and the Company
to cause the necessary arrangements to be made and to be thereafter continued whereby funds
from the sources specified herein and in the Agreement wil be made available for the purchase
of Bonds presented at the Delivery Office of the Trustee and whereby Bonds, executed by the
Issuer and authenticated by the Trustee, shall be made available to the Remarketing Agent to the
extent necessary for delivery pursuant to Section 3.06 hereof.
Section 10.20. Quaifcations of Remarketing Agent. The Remarketing Agent shall have
a capitalization of at least $50,00,00 and be authorized by law to pedorm all the duties
contemplated by this Indenture to be pedormed by the Remarketing Agent and agrees to take all
actions required of it under the DTC Representation Letter while a book-entry system is in effect
for the Bonds. The Remarketing Agent may at any time resign and be discharged of the duties
and obligations contemplated by this Indenture by giving at least 30 days' notice to the Issuer,
the Company, the Registrar, the Provider and the Trustee. The Remarketing Agent may be
removed at any time, at the direction of the Company, by an instrument, signed by an Authorized
Company Representative, fied with the Issuer. the Remarketing Agent, the Registrar and the
Trustee at least 30 days prior to the effective date of such removaL. Upon the resignation or
removal of the Remarketing Agent, the Company may appoint a new Remarketing Agent.
-75 -Series 20lOB Trust Indenture
In the event of the resignation or removal of the Remarketing Agent, the Remarketing
Agent shall pay over, assign and deliver any moneys held by it in such capacity to its successor
or, if there be no successor. to the Trustee.
Sectin 1021. Regitrar. Pursuant to the provisions hereof the Trustee is the initial
Registrar for the Bonds. By its execution of this Indenture, the Trustee signifies its acceptance of
the duties of Registrar hereunder. Any successor Registrar shall designate to the Issuer, the
Company, the Provider and the Remarketing Agent its office where the registration books shall
be kept and signify its acceptance of the duties imposed upon it hereunder by a wntten
instrment of acceptance delivered to the Issuer and the Trustee under which such Registrar wil
agree, partcularly, to keep such books and records as shall be consistent with prudent industry
practice and to make such books and records available for inspection by the Issuer, the Trustee,
the Company, the Provider and the Remarketing Agent at all reasonable times. So long as the
Bonds are subject to optional or mandatory purchase pursuant to the provisions of this Indenture
and no book-entry system for the Bonds is in effect pursuant to Section 2.16 hereof, the Registrar
shall maintain in any State located within the United States of America, an offce or agency for
the exchange, registration and registration of transfer of the Bonds.
The Issuer shall cooperate with the Trustee, the Remarketing Agent and the Company to
cause the necessary arrangements to be made and to be thereafter continued whereby Bonds,
executed by the Issuer and authenticated by the Registrar, shall be made available for exchange,
registration and registration of transfer at the Prncipal Ofce of the Registrar. The Issuer shaH
cooperate with the Trustee, the Registrar, the Company and the Remarketing Agent to cause the
necessary arrangements to be made and thereafter continued whereby the Trustee and the
Remarketing Agent shall be furnished such records and other information, at such times, as shall
be required to enable the Trustee and the Remarketing Agent to peiform the duties and
obligations imposed upon them hereunder.
Sectin 1022. Qualifcatons of Registrar; Resignan; Removal. The Registrar shall be
a corporation, bank or trust company duly organized under the laws of the United States of
America or any state or terrtory thereof, having a combined capital surplus and retained earnings
of at least $10,00,00 and authorized by law to perform all the duties imposed upon it by this
Indenture. The Registrar may at any time resign and be discharged of the duties and obligations
created by this Indenture by giving at least 45 days' notice to the Issuer, the Trustee, the
Remarketing Agent, the Provider and the Company. The Registrar may be removed at any time
by an instrument signed by an Authorized Company Representative and fied with the Issuer, the
Registrar, the Trustee, the Provider and the Remarketing Agent. Upon the resignation or
removal of the Registrar, the Company shall appoint a new Registrar.
In the event of the resignation or removal of the Registrar, the Registrar shall deliver any
Bonds held by it in such capacity to its successor or, if there be no successor, to the Trustee.
In the event that the Company shall fail to appoint a Registrar hereunder, or in the event
that the Registrar shall resign or be removed, or be dissolved, or if the property or affairs of the
Registrar shall be taken under the control of any state or federal court or administrtive body
because of bankruptcy or insolvency, or for any other reason, and the Company shall not have
-76 -Series 20 lOB Trust Indenture
appointed its successor as Registrar, the Trustee shall ipso facto be deemed to be the Registrar
for all purposes of this Indenture until the appointment by the Company of the Registrar or
successor Registrar, as the case may be.
Section 10.23. Paying Agents. (a) The Company, with the written approval of the Trustee
and the Issuer, may appoint and at all times have one or more paying agents in such place or
places as the Company may designate, for the payment of the principal of, and premium, if any,
and the interest on, the Bonds. Each such paying agent shall be a bank with the power to hold
moneys in trust or a trust company. It shall be the duty of the Trustee to make such
arrangements with any such paying agent as may be necessary to assure, to the extent of the
moneys held by the Trustee for such payment, the prompt payment of the principal of, and
premium, if any, and interest on, the Bonds presented at either place of payment. The Paying
Agent initially appointed hereunder is the Trustee, and the place of payment shaH be the Delivery
Offce of the Trustee.
(b) The Paying Agent may at any time resign and be discharged of the duties and
obligations created by this Indenture by giving at least 30 days' notice to the Issuer, the Trustee,
the Remarketing Agent, the Provider and the Company. The Paying Agent may be removed at
any time by an instrument signed by an Authorized Company Representative and filed with the
Issuer, the Paying Agent, the Trustee, the Provider and the Remarketing Agent. Upon the
resignation or removal of the Paying Agent, the Company shall appoint a new Paying Agent.
Any successor Paying Agent appointed hereunder shall execute, acknowledge and deliver to the
Issuer an instrument accepting such appointment hereunder,
In the event of the resignation or removal of the Paying Agent, the Paying Agent shaH
deliver any Bonds held by it in such capacity to its successor or, if there be no successor, to the
Trustee.
In the event that the Company shall fail to appoint a Paying Agent hereunder, or in the
event that the Paying Agent shall resign or be removed, or be dissolved, or if the property or
affairs of the Paying Agent shall be taken under the control of any state or federal court or
administrative body because of bankruptcy or insolvency, or for any other reason, and the
Company shall not have appointed its successor as Paying Agent, the Trustee shall ipso facto be
deemed to be the Paying Agent for all purposes of this Indenture until the appointment by the
Company of the Paying Agent or successor Paying Agent, as the case may be.
Sectin 10.24. Addito1U1Duties of Trustee. The Trustee shall:
(a) hold all Bonds delivered to it hereunder for the account of and for the
benefit of the respective Owners which shall have so delivered such Bonds pursuant to
Section 3.01 or Section 3.02 until moneys representing the purchase price of such Bonds
shall have been delivered to or for the account of or to the order of such Owners;
(b) hold all moneys delivered to it hereunder for the purchase of Bonds for the
benefit of the person or entity which shall have so delivered such moneys until the Bonds
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purchased with such moneys shall have been delivered to or for the account of such
person or entity;
(c) keep such books and records with respect to the Bonds as shall be
consistent with prudent industry practice and to make such boks and records available
for inspection by the Issuer, any Paying Agent, the Company and the Remarketing Agent
with prior notice, at all reasonable times during Trustee's normal business hours; and
(d) as long as a book-entry system is in effect for the Bonds, the Trustee wil
comply with the DTC Representation Letter and peiform all duties required of it
thereunder.
ARTICLE Xl
EXECUTION OF INSTRUMENTS BY OWNERS
AND PROOF OF OWNERSHIP OF BONDS
Any request, direction, consent or other instrument in writing required or permitted by
this Indenture to be signed or executed by the Owners or on their behalf by an attomey-inÆact
may be in any number of concurrent instruments of similar tenor and may be signed or executed
by the Owners in person or by an agent or attorney-in-fact appointed by an instrument in writing
or as provided in the Bonds. Proof of the execution of any such instrument and of the ownership
of Bonds shall be suffcient for any purpse of this Indenture and shall be conclusive in favor of
the Trustee with regard to any action taken by it under such instrment if made in the following
manner:
(a) The fact and date of the execution by any person of any such instrument
may be proved by the certificate of any officer in any jurisdiction who, by the laws
thereof, has power to take acknowledgments within such Junsdiction, to the effect that
the person signing such instrument acknowledged before him the execution thereof, or by
an affidavit of a witness to such execution.
(b) The ownership of Bonds shall be proved by the registrtion books kept
under the provisions of Section 2.1 1 hereof.
Nothing contained in this Article XI shall be construed as limiting the Trustee to such
proof, it being intended that the Trustee may accept any other evidence of matters herein stated
which it may deem sufficient. Any request by or consent of any Owner shall bind every future
Owner of the same Bond or any Bond or Bonds issued in lieu thereof or upon registration of
transfer thereof in respect of anything done by the Trustee or the Issuer in pursuance of such
request or consent.
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ARTICLE XII
MODIFICATION OF THIS INDENTRE AND THE AGREEMENT
Section 12.01. Supplemental Indentures Without Owner Consent. The Issuer and the
Trustee may, from time to time and at any time, without the consent of the Owners, enter into a
Supplemental Indenture as follows:
(a) to cure any formal defect, omission, inconsistency or ambiguity in this
Indenture;
(b) to add to the covenants and agreements of the Issuer contained in this
Indenture or of the Company or of the Provider contained in any document, other
covenants or agreements thereafter to be observed, or to assign or pledge additional
secunty for any of the Bonds, or to surrender any right or power reserved or conferred
upon the Issuer or the Company;
(c) to confirm as further assurance, any pledge of or lien on the Revenues or
any other moneys, securities or funds subject or to be subjected to the lien of this
Indenture;
(d) to comply with the requirements of the Trust Indenture Act of 1939, as
from time to time amended, if applicable to this Indenture;
(e) to implement an adjustment of the interest rate on the Bonds;
(0 to provide for a Change of Credit Facilty;
(g) to provide for a depository to accept Bonds in lieu of the Trustee;
(h) to modify or eliminate the bok-entry registration system for any of the
Bonds;
(i) to provide for uncertificated Bonds or for the issuance of coupons and
bearer Bonds or Bonds registered only as to pnncipal but only to the extent that such
would not adversely affect the Tax-Exempt status of the Bonds;
(j) to secure or maintain ratings on the Bonds from Moody's and/or S&P;
(k) to provide demand purchase obligations to cause the Bonds to be
authorized purchases for investment companies;
(I) to provide for the appointment of a Rcmarketing Agent or a successor
Trustee, Registrar, Paying Agent or Rcmarketing Agent;
-79 -Series 20IOB Trust Indenture
(m) to provide the procedures required to permit any Owner to separate the
nght to receive interest on the Bonds from the nght to receive pnncipal thereof and to sell
or dispose of such right as contemplated by Section 1286 of the Code (or similar
successor provision);
(n) to provide for any additional procedures, covenants or agreements
necessary to maintain the Tax-Exempt status of the Bonds;
(0) to modify, alter, amend or supplement this Indenture in any other respect,
including amendments which would otherwise be described in Section 12.02 hereof, if
the effective date of such supplement or amendment is a date on which all Bonds affected
thereby are subject to mandatory purchase pursuant to Section 3.02 hereof or if notice by
Mail of the Proposed amendment or supplement is given to Owners of the Bonds at least
thirty (30) days before the effective date thereof and, on or before such effective date,
such Owners have the nght to require purchase of their Bonds pursuant to Section 3.01
hereof;
(p) to provide for any Additional Collateral and the release of any Additional
Collateral in accordance with Section 4.09 of the Agreement; and
(q) to modify, alter, amend or supplement this Indenture or any Supplemental
Indenture in any other respect; provided that such modification, alteration, amendment or
supplement shall not adversely affect the interest of the Owners of the Bonds in any
material respect, as evidenced by a certificate of an Authonzed Company Representative.
Before the Issuer and the Trustee shall enter into any Supplementa Indenture pursuant to
this Section 12.01, (1) in the case of a Supplemental Indenture entered into pursuant to clauses
(I), (n) or (p) of this Section and provided that no Provider Default shall have occurred and be
continuing, there shall have been delivered to the Trustee and the Company, the written consent
of the Provider, and (2) in all cases, there shall have been delivered to the Trustee, the Provider
and the Company, a Favorable Opinion of Bond Counsel with respect to such Supplemental
Indenture and further stating that such Supplemental Indenture is authorized or permitted by this
Indenture and wil, upon the execution and delivery thereof, be valid and binding upon the Issuer
in accordance with its terms. Neither the Issuer nor the Trustee wil be obligated to enter into
any such Supplemental Indenture that would materially alter their respective nghts, duties or
immunities under this Indenture, under the Agreement or otherwise.
The Trustee shall provide wntten notice of any Supplemental Indenture described in this
Section 12.01 to Mooy's, S&P, the Provider, the Remarketing Agent and the Owners of an
Bonds then Outstanding at least 15 days pnor to the effective date of such Supplemental
Indenture. Such notice shall state the effective date of such Supplemental Indenture and shall
briefly describe the nature of such Supplemental Indenture and shan state that a copy thereof is
on fie at the Prncipal Office of the Trustee for inspection by the parties mentioned in the
preceding sentence.
- 80-Senes 2010B Trust Indnture
Section 12.02. Supplemental Indentures Requirng Owner Consent. (a) Except for any
Supplemental Indenture entered into pursuant to Section 12.01 hereof. subject to the terms and
provisions contained in this Section 12.02 and not otherwise, the Provider (unless a Provider
Default shall have occurred and be continuing), together with the Owners of not less than 60% in
aggregate principal amount of the Bonds then Outstading shall have the right from time to time
to consent to and approve the execution and delivery by the Issuer and the Trustee of any
Supplemental Indenture deemed necessary or desirable by the Issuer for the purposes of
modifying, altering, amending, supplementing or rescinding, in any particular, any of the terms
or provisions contained in this Indenture; provided, however, that, unless approved in writing by
the Provider (unless a Provider Default shall have occurred and be continuing) and the Owners
of all the Bonds then affected thereby, nothing herein contained shall permit, or be construed as
permitting, (i) a change in the times, amounts or currncy of payment of the principal of, or
premium if any, or interest on, any Outstanding Bond, a change in the terms of the purchase
thereof by the Trustee, or a reduction in the pnncipal amount or redemption price of any
Outstanding Bond or the rate of interest thereon, or (ii) the creation of a claim or lien upon, or a
pledge of, the Revenues ranking prior to or on a parity with the claim, lien or pledge created by
this Indenture (except as referred to in Section 10.04 hereof), or (iii) a reduction in the aggregate
principal amount of Bonds the consent of the Owners of which is required for any such
Supplemental Indenture or which is required, under Section 12.06 hereof, for any modification,
alteration, amendment or supplement to the Agreement.
(b) If at any time the Issuer shall request the Trustee to enter into any Supplemental
Indenture for any of the purpses of this Section 12.02, the Trustee shall cause notice of the
proposed Supplemental Indenture to be given by Mail to Moody's, S&P, the Provider, the
Remarketing Agent and all Owners of Outstading Bonds. Such notice shall briefly set forth the
nature of the proposed Supplementa Indenture and shall state that a copy thereof is on fie at the
Principal Offce of the Trustee for inspection by the Owners, Mooy's, S&P, the Provider and
the Remarketing Agent.
(c) Within two year after the date of the mailng of such notice, the Issuer and the
Trustee may enter into such Supplemental Indenture in substantially the form described in such
notice, but only if there shall have first been delivered to the Trustee (i)the required consents, in
writing, of the Owners and the Provider and (ii) a Favorable Opinion of Bond Counsel with
respect to such Supplemental Indenture and furter stating that such Supplemental Indenture is
authorized or permitted by this Indenture and wil, upon the execution and delivery thereof, be
valid and binding upon the Issuer in accordance with its terms. Neither the Issuer nor the Trustee
wil be obligated to enter into any such Supplemental Indenture that would materially alter their
respective rights, duties or immunities under this Indenture, under the Agreement or otherwise.
(d) If Owners of not less than the percentage of Bonds required by this Section 12.02
shall have consented to and approved the execution and delivery of a Supplemental Indenture as
herein provided, no Owner shall have any right to object to the execution and delivery of such
Supplemental Indenture, or to object to any of the terms and provisions contained therein or the
operation thereof, or in any manner to question the propriety of the execution and delivery
thereof, or to enjoin or restrain the Issuer or the Trustee from executing and delivering the same
or from taking any action pursuant to the provisions thereof.
- 81 -Senes 20lOB Trust Indenture
Section 12.03. Effect of Supplemental Indenture. Upon the execution and delivery of any
Supplemental Indenture pursuant to the provisions of this Article XII, this Indenture shall be, and
be deemed to be, modified and amended in accordance therewith, and the respective rights,
duties and obligations under this Indenture shall thereafter be determned, exercised and enforced
under this Indenture subject in all respects to such modifications and amendments.
Section 12.04. Consent of the Company and the Provider. No Supplementa Indenture
under this Article XII and no amendment of the Agreement shall become effective unless the
Company shall have consented thereto in writing.
Any provision of this Indenture expressly recognizing or granting rights in or to the
Provider may not be amended in any manner which affects the rights of the Provider hereunder
without the prior wntten consent of the Provider (unless a Provider Default shall have occurred
and be continuing).
Section 12.05. Amendment of Agreement Without Owner Consent. Without the consent
of or notice to the Owners, the Issuer and the Company may, with the consent of the Provider
(unless a Provider Default shall have occurred and be continuing), modify, alter, amend or
supplement the Agreement, and the Trustee may consent thereto, as may be required:
(a) by the provisions of the Agreement and this Indenture;
(b) for the purpose of curing any formal defect, omission, inconsistency or
ambiguity therein;
(c) to secure or maintain ratings on the Bonds from Moody's and/or S&P;
(d) to add to the covenants and agreements of the Issuer contained in the
Agreement or of the Company or of the Provider contained in any document, other
covenants or agreements thereafter to be observed, or to assign or pledge additional
security for any of the Bonds, or to surrender any right or power reserved or conferred
upon the Issuer or the Company, which shaH not materially adversely affect the interest
of the Owners of the Bonds, as evidenced by a certficate of an Authonzed Company
Representative;
(e) to provide demand purchase obligations to cause the Bonds to be
authonzed purchases for investment companies;
(f) to provide the procedures required to permit any Owner to separate the
right to receive interest on the Bonds from the right to receive principal thereof and to sell
or dispose of such right as contemplated by Section 1286 of the Code (or similar
successor provision);
(g) to provide for any additional procedures, covenants or agreements
necessary to maintain the Tax-Exempt status of interest on the Bonds;
- 82-Series 20108 Trust Indenture
(h) to implement an adjustment of the interest rate on the Bonds or in
connection with the appointment of a Remarketing Agent;
(i) to provide for a Change of Credit Facility;
G) to modify, alter, amend or supplement the Agreement in any other respect,
including amendments which would otherwise be described in Section 12.06 hereof, if
the effective date of such supplement or amendment is a date on which all Bonds afected
thereby are subject to mandatory purchase pursuant to Section 3.02 hereof or if notice by
Mail of the proposed amendment or supplement is given to Owners of the Bonds at least
thirty (30) days before the effective date thereof and, on or before such effective date,
such Owners have the nght to demand purchase of their Bonds pursuant to Section 3.01
hereof;
(k) in connection with the delivery and substitution of any Additional
Collateral and the release of any Additional Collateral in accordance with Section 4.09 of
the Agreement; and
(I) in connection with any other change therein which does not adversely
affect the interests of the Owners of the Bonds in any material respect, as evidenced by a
certificate of an Authorized Company Representative;
A revision of Exhibit A to the Agreement in accordance with Section 3.04 of the
Agreement shall not be deemed a modification, alteration, amendment or supplement to the
Agreement, or to this Indenture, for any purpse of this Indenture.
Before the Issuer shall enter into, and the Trustee shall consent to, any modification,
alteration, amendment or supplement to the Agreement pursuant to this Section 12.05, there shall
have been delivered to the Issuer, the Provider and the Trustee a Favorable Opinion of Bond
Counsel with respect to such modification, alteration, amendment or supplement and further
stating that such modification, alteration, amendment or supplement is authorized or permitted
by the Agreement or this Indenture and wil, upon the execution and delivery thereof, be valid
and binding upon the Issuer in accordance with its terms. Neither the Issuer nor the Trustee wil
be obligated to enter into or consent to any such modifications, alterations, amendments or
supplements to the Agreement that would materially alter their respective rights, duties or
immunities under this Indenture, under the Agreement or otherwise.
Section 12.06. Amendment of Agreement Requirng Owner Consent. Except in the case
of modifications, alterations, amendments or supplements referred to in Section 12.05 hereof, the
Issuer shall not enter into, and the Trustee shall not consent to, any amendment, change or
modification of the Agrement without the wntten approval or consent of the Prvider (unless a
Provider Default shall have occurred and be continuing) and the Owners of not less than 60% in
aggregate principal amount of the Bonds then Outstading, given and procured as provided in
Section 12.02 hereof, provided, however, that, unless approved in writing by the Provider (unless
a Provider Default shall have occurred and be continuing) and the Owners of all Bonds afected
thereby, nothing herein contained shall permt, or be construed as permitting, a change in the
- 83-Series 2010B Trust Indenture
obligations of the Company under Section 4.01 and Section 4.02 of the Agreement. If at any
time the Issuer or the Company shall request the consent of the Trustee to any such proposed
modification, alteration, amendment or supplement permitted under this Section 12.06, the
Trustee shall cause notice thereof to be given in the same manner as provided by Section 12.02
hereof with respect to Supplemental Indentures. Such notice shall briefly set forth the nature of
such proposed modification, alteration, amendment or supplement and shall state that copies of
the instrument embodying the same are on file at the Principal Office of the Trustee for
inspection by all Owners. The Issuer may enter into, and the Trustee may consent to, any such
proposed modification, alteration, amendment or supplement subject to the same conditions and
with the same effect as provided in Section i 2.02 hereof with respect to Supplemental
Indentures.
Before the Issuer shall enter into, and the Trustee shall consent to, any modification,
alteration, amendment or supplement to the Agreement pursuant to this Section 12.06, there shall
have been delivered to the Issuer, the Provider and the Trustee a Favorable Opinion of Bond
Counsel with respect to such modification, alteration, amendment or supplement and further
stating that such modification, alteration, amendment or supplement is authorized or permitted
by the Agreement or this Indenture and wil, upon the execution and delivery thereof, be valid
and binding upon the Issuer in accordance with its terms. Neither the Issuer nor the Trustee wil
be obligated to enter into any such modifications, alterations, amendments or supplements to the
Agreement that would materially alter their respective rights, duties or immunities under this
Indenture, under the Agreement or otherwise.
ARTICLE XIII
MISCELLANEOUS
Sectin 13.01. Successors of the Issuer. In the event of the dissolution of the Issuer, all
the covenants, stipulations, promises and agreements in this Indenture contained, by or on behalf
of, or for the benefit of the Issuer, shall bind or inure to the benefit of the successors of the Issuer
from time to time and any entity, officer, board, commission, agency or instrmentality to whom
or to which any power or duty of the Issuer shall be transferred.
Sectin 13.02. Parties in Interest. Except as herein otherwise specifically provided,
nothing in this Indenture expressed or implied is intended or shall be constred to confer upon
any person, firm or corpration other than the Issuer, the Remarketing Agent, the Registrar, the
Paying Agent, the Company, the Trustee, the Provider and the Owners of Bonds any right,
remedy or claim under or by reason of this Indenture, this Indenture being intended to be for the
sole and exclusive benefit of the Issuer, the Remarketing Agent, the Registrar, the Paying Agent,
the Company, the Trustee, the Provider and the Owners of Bonds. The Trustee shall have no
fiduciary duty to any entity other than the Owner of any Bond as such and only in accordance
with, into the extent of, the terms and provisions hereunder.
Section 13.03. Severabili. In case anyone or more of the provisions of this Indenture or
of the Agreement or of the Bonds shall for any reason, be held to be ilegal or invalid, such
- 84-Series 2OIOB Trust Indenture
iHegality or invalidity shall not affect any other provisions of this Indenture, the Agreement, or
of the Bonds, and this Indenture, the Agreement and the Bonds shall be construed and enforced
as if such illegal or invalid provisions had not been contained herein or therein.
Sectin 13.04. No Personal Liaüit of Issuer Offu:ials. No representation, warranty,
covenant or agreement contained in the Bonds or in this Indenture or in any of the documents or
certificates related thereto shall be deemed to be the representation, warranty, covenant or
agreement of any official, officer, agent, counselor employee of the Issuer in his or her
individual capacity, and neither the members of the Issuer nor any offcial executing the Bonds
shall be liable personally on the Bonds or be subject to any personal liabilty or accountability by
reason of the issuance thereof.
Sectin 13.05. Bonds Owned by the Issuer or the Company. In determining whether the
Owners of the requisite aggregate principal amount of the Bonds have concurred in any
direction, consent or waiver under this Indenture, Bonds which are owned by the Issuer or the
Company or by any person directly or indirectly controllng or controlled by or under direct or
indirect common control with the Company (unless the Issuer, the Company or such person
owns all Bonds which are then Outstanding, determined without regard to this Section 13.05)
shall be disregarded and deemed not to be Outstanding for the purpse of any such
determination, except that, for the purpse of determining whether the Trustee shall be protected
in relying on any such direction, consent or waiver, only Bonds which a Responsible Officer of
the Trustee actually knows are so owned shall be so disregarded. Bonds so owned which have
been pledged in goo faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's nght so to act with respect to such Bonds and that the
pledgee is not the Issuer or the Company or any person directly or indirectly controlJng or
controlled by or under direct or indirect common control with the Company. In case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
Section 13.06. Counterparls. This Indenture may be executed in any number of
counterpart, each of which, when so executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same Indenture.
Sectin 13.07. Governing Law. This Indenture shall be governed by and construed in
accordance with the laws of the State; provided, however, that the rights, protections and
immunities of the Trustee shall be governed by and construed in accordance with the laws of the
State of Washington.
Sectin 13.08. Notices. Except as otherwise provided in this Indenture, all notices,
certificates, requests, requisitions, directions or other communications by the Issuer, the
Company, the Trustee, the Registrar, the Paying Agent, the Provider, the Company Mortgage
Trustee (if the Trustee holds First Mortgage Bonds) or the Remarketing Agent, pursuant to this
Indenture shall be in writing and shall be sufficiently given and shall be deemed given when
mailed by Mail or by certified or registered mail postage prepaid, or by overnight delivery
service, addressed as follows (and, if by overnight delivery service and required by the chosen
delivery service, with then-current telephone numbers of the addressees):
- 85-Series 2OIOB Trust Indenture
if to the J ssuer. to:City of Forsyth. Montana
City Hall
Forsyth, Montana 59327
Attention: Mayor
if to the Trustee, to:The Bank of New York Mellon Trust Company, N A.
Two Union Square, Suite 520
601 Union Street
Seattle, Washington 98101-2321
Attention: Corprate Trust Administration
if to the Company, to:A vista Corpration
1411 East Mission Avenue
Spokane, Washington 99220
Attention: Treasurer
if to the Provider. to such address specified in the Credit Facility Agreement; if to the Registrar.
the Company Mortgage Trustee (if the Trustee holds First Mortgage Bonds) or the Paying Agent,to such address as is designated in writing by it to the Trustee and the Issuer; and if to the
Remarketing Agent, at the address specified in the Remarketing Agreement. Any of the
foregoing may, by notice given hereunder to each of the others, designate any further or different
addresses to which subsequent notices, certificates. requests or other communications shall be
sent hereunder. Any communications required to be given hereunder by the Company shall be
given by an Authorized Company Representative.
Section 13.09. Holidays. If the date for making any payment or the last date for
performance of any act or the exercising of any right, as provided in this Indenture. shall not be a
Business Day. such payment may. unless otherwise provided in this Indenture or the Agreement,
be made or act performed or right exercised on the next succeeding Business Day with the same
force and effect as if done on the nominal date provided in this Indenture, and no interest shall
accrue for the period after such nominal date.
Section 13.10. Purchase of Bonds by Trutee and Remarketig Agent. The Trustee and
the Issuer agree that in connection with the purchase of any Bonds pursuant to this Indenture, the
Trustee and the Remarketing Agent are acting solely on behalf of the Company.
Section 13.11. Noties to Mooy~s and S&P. The Trustee shall provide pnor written
notice to Mooy's (if the Bonds are then rated by Moody's) and to S&P (if the Bonds are then
rated by S&P) of (a) the payment of the principal of all of the Bonds, (b) the resignation or
removal of the Trustee, Paying Agent or the Remarketing Agent. (c) any modifications,
alterations, amendments or supplements of this Indenture, the Agreement and (to the extent that
the Trustee has actual knowledge of such modification. alteration, amendment or supplement)
the Remarketing Agreement, (d) the Change of Credit Facility. (e) the adjustment under Article
II hereof of the method by which interest on the Bonds is determined. (f) defeasance of the
Bonds in accordance with Article VII hereof, (g) any mandatory purchases of the Bonds in
accordance with Section 3.02 hereof. (h) any acceleration of the Bonds in accordance with
- 86-Series iolOB Trust Indenture
Section 9.02 hereof and (i) any other information that Moody's (if the Bonds are then rated by
Moody's) and to S&P (if the Bonds are then rated by S&P) may reasonably request in order to
maintain the rating on the Bonds.
The agreement of the Trustee herein to give notices to Moody's and S&P has been made
as a matter of courtesy and accommodation only and the Trustee shall not be liable to any Person
for any failure to give any such notice.
As of the date hereof, notices shall be provided to Moody's and to S&P as follows:
if to Mooy's, to:
Moody's Investors Service
7 World Trade Center at 250 Greenwich Street
23rd Hoor
New York, New York 100
Attention: Municipal Strctured Products Group
Email: MSPGSurveilancelßmoodys.com
Fax: [phone]
if to S&P, to:
Standard & Poor's Ratings Services,
a division of The McGraw-Hil Companies, Inc.
55 Water Street, 41st Hoor
New York, New York 1001
Attention: LOC Surveilance
Email: nyloclßstandardandpoors.com
Moody's and S&P may, by notice to the Trustee, designate any further or different address to
which subsequent notices or communications shaH be sent hereunder.
Sectin 13.12. Rights of Provider. Upon a Change of Credit Facilty, all rights provided
herein to a Provider other than its right of subrogation pursuant to Section 2.16(t) shall be of no
force and effect with respect to the Provider and Credit Facility which has been replaced and
shall apply only to the new Provider and Credit Facilty.
(Signature page follows.)
- 87-Senes 2010B Trust Indenture
IN WITNESS WHEREOF, CITY OF FORSYTH, MONTANA, has caused this Indenture to be
signed in its name and behalf by the Mayor, and its offcial seal to be hereunto affixed and
attested by the City Clerk-Treasurer and to evidence its acceptance of the trusts hereby created
the Trustee has caused this Indenture to be signed in its name and behalf by one of its Assistant
Treasurers, all as of the date first set forth above.
CITY OF FORSYTH, MONTANAB~=r
¡SEAL)
ATTEST:
By:d~~
City Clerk-Treasurer
THE BANK OF NEW YORK MELLON TRUST
COMPANY,N.A.,
as Trustee
By:
Assistant Treasurer
- 88-Series 20lOB Trust Indenture
IN WITNESS WHEREOF, CITY OF FORSYTH, MONTANA, has caused this Indenture to be
signed in its name and behalf by the Mayor, and its official seal to be hereunto affixed and
attested by the City Clerk-Treasurer and to evidence its acceptance of the trsts hereby created
the Trustee has caused this Indenture to be signed in its name and behalf by one of its Assistant
Treasurers, all as of the date first set forth above.
CITY OF FORSYTH, MONT ANA
By:
Mayor
(SEAL)
ATTST:
By:
City Clerk-Treasurer
Associate
- 88 -Series 20lOB Trust Indenture
EXHIBIT A
(FORM OF BOND L
REGISTERED REGISTERED
No.R-_$
UNITED STATES OF AMERlCA
STATE OF MONTANA
CITY OF FORSYT, MONTANA
POLLUTION CONTROL REVENUE REFUNDING BONDS
(A VISTA CORPORATION COLSTRlP PROJECT)
SERIES 20108
MATURITY DATE ISSUE DATE CUSIPNO.
March 1, 2034 December _, 2010
(Flexible Interest Rate:
Last Day of Flexible Segment:
Number of Days in Flexible Segment:
Amount of Interest to Accrue During Flexible Segment: _l*
Registered Owner:
Prncipal Amount: -------------------------------------- DOllRS ---------------------------______________
CITY OF FORSYTH, MONTANA (the "Issuer"), a political subdivision duly organized and
existing under the Constitution and laws of the State of Montana, for value received, hereby
promises to pay (but only out of the source hereinafter provided) to the registered owner
identified above, or registered assigns, on March i, 2034, the principal amount set fort above
and to pay (but only out of the sources hereinafter provided) interest on the balance of said
principal amount from time to time remaining unpaid from the Interest Payment Date (as defined
in the Indenture) next preceding the date of registration and authentication hereof unless this
Bond (as hereinafter defined) is registered and authenticated after a Record Date (as defined in
*To be included only in Bonds benng interest at a Aexible rnterest Rate and not registere in the bok-
entry system pursuant to Section 2.1 6 of the Indenture.
A-I Series 200 Trust Indenture
the Indenture) and on or prior to the related Interest Payment Date, in which event this Bond
shall bear interest from such Interest Payment Date, or unless this Bond is registered and
authenticated before the Record Date for the first Interest Payment Date, in which event this
Bond shall bear interest from the Issue Date set forth above (the "Issue Date"); provided,
however, that if, as shown by the records of the Paying Agent (as hereinafter defined), interest on
the Bonds (as hereinafter defined) shall be in default, Bonds issued in exchange for Bonds
surrendered for registration of transfer or exchange shall bear interest from the last date to which
interest has been paid in full or duly provided for on the Bonds, or, if no interest has been paid or
duly provided for on the Bonds, from the Issue Date, until payment of said principal amount has
been made or duly provided for, at the rates and on the dates determined as described herein and
in the Indenture (as hereinafter defined), and to pay (but only out of the sources hereinafter
provided) interest on overdue principal and, to the extent permitted by law, on overdue interest at
the rate then borne by this Bond, except as the provisions hereinafer set forth with respect to
redemption, purchase or acceleration prior to maturity may become applicable hereto. The
principal of and premium, if any, on this Bond are payable in lawful money of the United States
of America at the corporate trust office in Seatte, Washington, of The Bank of New York
Mellon Trust Company, N.A., or its successors and assigns, as Paying Agent (the "Paying
Agent"). Interest payments on this Bond shall be made by the Paying Agent to the registered
owner hereof as of the close of business on the Record Date with respect to each Interest
Payment Date and shall be paid:
(a) in respect of any Bond that is registered in the book-entry system, pursuant to the
Indenture, in immediately available funds by no later than 2:30 p.m., New York, New York time,
and
(b) in respect of any Bond that is not registered in the book-entr system,
(i) by bank check mailed by first-class mail on the Interest Payment Date to
the registered owner hereof at its address as it appears on the registration books of The
Bank of New York Mellon Trust Company, NA., as registrar (the "Registrar") or at
such other address as is furnished in writing by such registered owner to the Registrar, or
(ii) during any Rate Penod (as defined in the Indenture) other than a Term
Interest Rate Period (as defined in the Indenture), in immediately available funds on the
Interest Payment Date (by wire transfer or by deposit to the account of the registered
owner of this Bond if such account is maintained with the Paying Agent),
but in respect of any registered owner of any Bond or Bonds in a Daily Interest Rate Penod (as
defined in the Indenture) or a Weekly Interest Rate Period (as defined in the Indenture) or a .
Aexible Interest Rate Penod (as defined in the Indenture), only to any registered owner that
owns Bonds in an aggregate principal amount of at least $1,00,00 on such Record Date,
according to the written instructions given by the registered owner hereof to the Paying Agent or,
if no such instructions have been provided as of the Record Date, by bank check mailed by first~
class mail on the Interest Payment Date to the registered owner at such registered owner's
address as it appears as of the Record Date on the registration books of the Registrar.
Notwithstanding the foregoing, interest in respect of any Bond bearing a Aexible Rate (as
A-2 Series 2010A Trust Indenture
defined in the Indenture) shall be paid only upon presentation to The Bank of New York Mellon
Trust Company, N.A., as Trustee (the "Trustee") of the Bond on which such payment is due.
THIS BOND AND ALL OTHER BONDS OF THE ISSUE OF WHICH IT FORMS A PART SHALL BE
A LIMITED OBLIGATION OF THE ISSUER, SHAll NOT CONSTITUTE NOR GIVE RISE TO A GENERL
OBLIGATION OR LIABILIT OF THE ISSUER OR A CHARGE AGAINST ITS GENERAL CREDIT OR
TAXING POWERS, AND SHALL NOT CONSTITUTE AN INDEBTEDNESS OF THE ISSUER OR OF THE
STATE OF MONTANA, OR A LOAN OF CREDIT THEROF WITIN THE MEANING OF ANY
CONSTITUTIONAL OR STATUTORY PROVISION.
This Bond is one of the duly authonzed Pollution Control Revenue Refunding Bonds
(Avista Corporation Colstrip Project) Series 2010B of the Issuer, onginally issued in the
aggregate pnncipal amount of $17,00,00 (the "Bonds"), issued pursuant to proper action duly
adopted by the Issuer on December 6, 2010, and the applicable provisions of Sections 90-5-101
to 90-5-114, inclusive, Montana Code Annotated, as amended (the "Act"), and executed under a
Trust Indenture, dated as of December 1,2010, as amended and supplemented (the "Indenture"),
between the Issuer and The Bank of New York Mellon Trust Company, N.A., as trustee (the
"Trustee," which term shall include any successor Trustee), for the purpse of providing the
funds necessary for the refunding of certain poUution control revenue bonds previously issued by
the Issuer to finance or refinance certain pollution control facilities owned by Avista
Corpration, a Washington corporation (the "Company"). Pursuant to the Loan Agreement,
dated as of December i, 2010 (the "Loan Agreement"), between the Issuer and the Company,
This Bond and aU other Bonds of the issue of which it forms a part are issued pursuant to
and in full compliance with the Constitution and laws of the State of Montana, particularly the
Act, and pursuant to further proceedings adopted by the governing authonty of the Issuer, which
proceedings authonze the execution and delivery of the Indenture. This Bond and the issue of
which it forms a part are limited and not general obligations of the Issuer payable solely from the
Revenues (as defined in the Indenture) and amounts denved under the Loan Agreement and
pledged under the Indenture consisting of all amounts payable from time to time by the
Company in respect of the indebtedness under the Loan Agreement and aJ1 receipts of the
Trustee credited under the provisions of the Indenture against said amounts payable, including an
amounts drawn by the Trustee under a Credit Facility. No Owner of any Bond issued under the
Act has the nght to compel any exercise of the taxing power of the Issuer to pay the Bonds, or
the interest or premium if any, thereon. The Bonds shall not constitute an indebtedness or a
general obligation of the Issuer or a loan of credit thereof within the meaning of any
constitutional or statutory provision, nor shall any of the Bonds constitute or give nse to a
pecuniary liability of the Issuer or a charge against its general credit or taxing powers.
Any term used herein as a defined term but not defined herein shan be defined as in the
Indenture.
In the manner hereinafter provided and subject to the provisions of the Indenture, the
term of the Bonds wil be divided into consecutive Rate Penods dunng each of which the Bonds
shan bear interest at the lesser of (a) Maximum Interest Rate (as defined in the Indenture) or (b)
either, the Daily Interest Rate (the "Daily Interest Rate Period"), the Weekly Interest Rate (the
A-3 Series 20lOA Trust Indenture
"Weekly Interest Rate Period"), the Term Interest Rate (the "Term Interest Rate Period") or the
Flexible Interest Rate (the "Flexible Interest Rate Period"). Rate Periods for this Bond shall be
determined in accordance with the Indenture.
This Bond shall bear interest from the Interest Payment Date next preceding the date of
registration and authentication hereof unless it is registered and authenticated after a Record Date
and on or prior to the related Interest Payment Date, in which event this Bond shall bear interest
from such Interest Payment Date, or unless this Bond is registered and authenticated before the
Record Date for the first Interest Payment Date, in which event this Bond shan bear interest from
the Issue Date; provided, however, that if, as shown by the records of the Paying Agent, interest
on the Bonds shall be in default, Bonds issued in exchange for Bonds surrendered for transfer or
exchange shall bear interest from the last date to which interest has been paid in full or duly
provided for on the Bonds, or. if no interest has been paid or duly provided for on the Bonds,
from the Issue Date. Interest shall be computed, (a) in the case of a Term Interest Rate Period,
on the basis of a 360-day year consisting of twelve 30-day months, and (b) in the case of any
other Rate Period, on the basis of a 365 or 366 day year, as appropriate, for the actual number of
days elapsed. The term "Interest Payment Date" means (i) with respect to any Daily or Weekly
Interest Rate Period, the first Business Day of each calendar month, (ii) with respect to any Term
Interest Rate Period, any day in the sixth month following the commencement of the Term
Interest Rate Period and any day in each sixth month thereafter, and the day following the last
day of a Term Interest Rate Period, (ii) with respect to any Flexible Segment, the Business Day
next succeeding the last day thereof, and (iv) with respect to any Rate Penod, the day next
succeeding the last day thereof. The term "Business Day" means any day except a Saturday,
Sunday or other day (a) on which commercial banks located in the cities in which the Principal
Office of the Trustee, the Prncipal Office of the Prvider, the Prncipal Ofce of the Company,
the Principal Office of the Remarketing Agent or the Prncipal Offce of the Paying Agent are
located are required or authorized by law to remain closed or are closed, or (b) on which The
New York Stock Exchange is closed.
The Bonds shall be deliverable in the form of registered Bonds without coupons in the
following denominations: (i) $100,00 or any integral multiple of $5,00 in excess of $100,00
when the Bonds bear interest at a Daily, a Weekly or a Flexible Interest Rate; and (ii) $5,00 or
integral multiples of $5,00 when the Bonds bear interest at a Term Interest Rate (such
denominations being referred to herein as "Authorized Denominations").
As provided in the Loan Agreement, the Company may, at its option, provide for a
Change of Credit Facility, which includes the delivery or termination (or a combination thereof)
of one or more letters of credit, bond insurance policies, standby bond purchase agreements,
lines of credit, First Mortgage Bonds, other Company mortgage bonds or other security
instniments or liquidity devices. Also, as provided in the Loan Agreement, the Company may
provide or replace Additional Collateral which includes first or other mortgage bonds or other
collateral.
During each Daily Interest Rate Period, the Bonds shan bear interest at a Daily Interest
Rate, determined in accordance with the provisions of the Indenture by the Remarketing Agent
on each Business Day for such Business Day. If the Remarketing Agent shall not have
A-4 Senes 20JOA Trust Indenture
determined a Daily Interest Rate for any day by 9:30 a.m., New York, New York time, the Daily
Interest Rate for such day shall be 100% of the most recent SIFMA Swap Index.
Dunng each Weekly Interest Rate Penod, the Bonds shall bear interest at a Weeldy Rate,
determined in accordance with the provisions of the Indenture by the Remarketing Agent no later
than the first day of such Weeldy Interest Rate Penod and thereafter no later than Tuesday of
each week dunng such Weekly Interest Rate Penod, unless any such Tuesday shall not be a
Business Day, in which event the Weekly Interest Rate shall be determned by the Remarketing
Agent no later than the Business Day next preceding such Tuesday. If the Remarketing Agent
shall not have determined a Weekly Interest Rate for any period, the Weekly Interest Rate shall
be 110% of the most recent SIFMA Swap Index.
Dunng each Term Interest Rate Penod, the Bonds shall bear interest at the Term Interest
Rate, determned in accordance with the provisions of the Indenture by the Remarketing Agent
on a Business Day selected by the Remarketing Agent but no more than 60 days prior to and not
later than the effective date of such Term Interest Rate Penod.
Dunng each Flexible Interest Rate Penod, each Bond shall bear interest during each
Flexible Segment for such Bond at the Flexible Interest Rate for such Bond as descnbed in the
Indenture. Each Flexible Segment and Flexible Interest Rate shall be determined in accordance
with the provisions of the Indenture by the Remarketing Agent. Each Flexible Segment shall be
a penod of not less than one nor more than 270 days.
Notwithstanding the foregoing provisions, if any Bonds constitute Pledged Bonds due to
a failure in remarketing such Bonds on a mandatory tender date, the Remarketing Agent shall be
entitled to determine a new Daily Interest Rate, Weeldy Interest Rate or Flexible Interest Rate
with respect to such Bonds, as appropnate (in accordance with the terms of, and under the
conditions and subject to the limitations provided in, the Indenture), effective on such date as the
Remarketing Agent is able to remarket such Pledged Bonds in whole.
At the times and subject to the conditions set forth in the Indenture, the Company may
elect that the Bonds shall bear interest at an interest rate, and for a period, different from those
then applicable. The Trustee shall give notice of any such adjustment to the owners of the Bonds
not less than 15 days pnor to the effective date of such adjustment. Notwithstanding anything in
the Indenture to the contrary, the Company may rescind any such election and the Bonds wil
then bear interest as provided in the Indenture.
Dunng any Daily Interest Rate Penod, any Bond or portion thereof in an Authonzed
Denomination shall be purchased at the option of the Owner thereof on any Business Day at a
purchase pnce equal to 100% of the principal amount thereof plus accrued interest, if any, from
the Interest Payment Date next preceding the date of purchase to the date of purchase (unless the
date of purchase shall be an Interest Payment Date, in which case the purchase pnce shall be
equal to the pnncipal amount thereof) upon (a) delivery to the Trustee at the Delivery Ofce of
the Trustee and to the Remarketing Agent at the Principal Office of the Remarketing Agent, by
not later than 10:00 a.m., New York, New York time, on such Business Day, of an irrevocable
written notice (which may be by facsimile or other wnting), which states the pnncipal amount
A-5 Series 20lOA Trust Indenture
and the certificate number (if the Bonds are not then held in bok entry form) of such Bond and
the date on which the same shall be purchased, and (b) except when a book-entry system is in
effect for the Bonds, delivery of such Bond to the Trustee at the Delivery Ofice of the Trustee,
accompanied by an instrment of transfer thereof, in a form satisfactory to the Trustee, executed
in blank by the owner thereof with the signature of such owner guaranteed by a member or
participant in a "signature guarantee program" as provided in the form of assignment attched
to such Bond, at or pnor to 1:00 p.m., New York, New York time, on the date specified in such
notice.
During any Weekly Interest Rate Period, any Bond or portion thereof in an Authorized
Denomination shall be purchased at the option of the Owner thereof on any Business Day at a
purchase price equal to 100% of the principal amount thereof plus accrued interest, if any, from
the Interest Payment Date next preceding the date of purchase to the date of purchase (unless the
date of purchase shall be an Interest Payment Date, in which case the purchase price shall be
equal to the principal amount thereof), upon (a) delivery to the Trustee at the Delivery Office of
the Trustee of an irrvocable written notice (which may be by facsimile or other writing), by
5:00 p.m., New York, New York time, on any Business Day, which states the pnncipal amount
of such Bond and the certficate number (if the Bonds are not held in bok-entry form) and the
date on which the same shall be purchased, which date shall not be prior to the seventh day next
succeeding the date of the delivery of such notice to the Trustee, and (b) except when a book-
entry system is in effect for the Bonds, delivery of such Bond to the Trustee at the Delivery
Office of the Trustee, accompanied by an instrument of transfer thereof, in a form satisfactory to
the Trustee, executed in blank by the Owner thereof with the signature of such Owner guaranteed
by a member or participant in a "signature guarantee program" as provided in the form of
assignment attached to such Bond, at or pnor to 1:00 p.m., New York, New York time, on the
date specified in such notice.
Any bond or portion thereof in an Authorized Denomination shall be purchased at the
option of the Owner thereof on the first day of any Term Interest Rate Period which is preceded
by a Term Interest Rate Period of equal duration at a purchase price equal to 100% of the
principal amount thereof, upon (i) delivery to the Trustee at the Delivery Offce of the Trustee of
an irrevocable notice in writing by 5:00 p.m., New York, New York time, on any Business Day
not Jess than fifteen days before the purchase date, which states the principal amount and
certficate number (if the Bonds are not then held in bok-entry form) of such Bond to be
purchased and (ii) except when a book-entr system is in effect for the Bonds, delivery of such
Bond to the Trustee at the Delivery Offce of the Trustee, accompanied by an instrment of
transfer thereof, in a form satisfactory to the Trustee, executed in blank by the Owner thereof
with the signature of such Owner guaranteed by a member or parcipant in a "signature
guarantee program" as provided in the form of assignment attached to such Bond, at or prior to
1:00 p.m., New York, New York time, on the purchase date.
"Record Date" means (a) with respect to any Interest Payment Date in respect of any
Daily Interest Rate Period, Weekly Interest Rate Period or Flexible Segment, the Business Day
next preceding such Interest Payment Date, (b) with respect to any Interest Payment Date in
respect of any Term Interest Rate Period, the fifteenth day of the month preceding such Interest
Payment Date (except as provided in the following clause (c); and (c) for any Interest Payment
A-6 Series 20lOA Tru Indenture
Date established pursuant to clause (d) of the definition of "Interest Payment Date" in
Section 1.01 of the Indenture in respect of a Term Interest Rate Penod, the Business Day next
preceding such Interest Payment Date.
In each case in which a portion of a Bond is purchased, both the portion so purchased and
the portion of such Bond not so purchased shall be in Authorized Denominations.
This Bond shall be subject to mandatory purchase at a purchase price equal to 100% of
the principal amount thereof to the purchase date plus accrued interest, if any, to the purchase
date: (a) on the effective date of any change in a Rate Period with respect to this Bond other than
the effective date of a Term Interest Rate Period which was preceded by a Term Interest Rate
Period of the same duration; (b) during any Flexible Interest Rate Period, on the day next
succeeding the last day of any Flexible Segment thereof; (c) in connection with a Change of
Credit Facility, as provided in Section 3.02(a)(iii) of the Indenture; (d) on the second Business
Day following the day that the Trustee receives notice from the Provider that, following a
drawing on a Credit Facility that consists of a direct pay letter of credit (on an Interest Payment
Date for the payment of unpaid interest on the Bonds), such Credit Facility wil not be reinstated
in accordance with its terms; (e) as to any Bond, if a Credit Facility is in effect, on the second
Business Day folJowing the day that the Trustee receives notice from the Provider directing such
mandatory purchase upon the occurrence and continuance of an event of default under the Credit
Facility Agreement; or (f) as to each Bond in a Daily Interest Rate Period or a Weekly Interest
Rate Period, on any Business Day designated by the Company, with the consent of the Provider
and the Remarketing Agent.
The Bonds are also subject to mandatory purchase during any Term Interest Rate Period
on a day that the Bonds would be subject to optional redemption pursuant to Section 4.02(b)(iii)
of the Indenture, at a purchase price equal to 100% the principal amount thereof plus an amount
equal to any premium which would have been payable on such redemption date had the Bonds
been redeemed if the Company gives notice to the Trustee on or before the Business Day prior to
the redemption date that it elects to have the Bonds purchased in lieu of redemption. If the
Bonds are purchased on or prior to the Record Date, the purchase price shall include accrued
interest from the Interest Payment Date next preceding the date of purchase to the date of
purchase (unless the date of purchase shall be an Interest Payment Date, in which case the
purchase price shall be equal to the amount specified in the preceding sentence). If the Bonds
are purchased after the Record Date, the purchase price shall not include accrued interest.
BY ACCEPTANCE OF THIS BOND, THE REGISTERED OWNER HEREBY AGREES THAT, IF
THIS BOND IS TO BE PURCHASED AND IF MONEYS SUffCIENT TO PAY THE PURCHASE PRICE
SHALL BE HELD BY THE TRUSTEE ON THE DATE THlS BOND IS TO BE PURCHASED, THIS BOND
SHALL BE DEEMED TO HAVE BEEN PURCHASED AND SHALL BE PURCHASED ACCORDING OF TH
INDENTURE, WHETHER OR NOT THIS BOND SHALL HAVE BEEN DELIVERE TO THE TRUSTE,
AND THE OWNER OF THIS BOND SHALL HAVE NO CLAIM HEREON, UNDER THE INDENTURE OR
OTHERWISE, FOR ANY AMOUNT OTHER THAN THE PURCHASE PRICE HEREOF.
The Bonds shall be redeemed in whole or in part, and if in part by lot, at any time at a
redemption price equal to the principal amount thereof plus accrued interest to the redemption
A-7 Series 20lOA Trust Indenture
date upon receipt by the Trustee of a written notice from the Company stating that any of the
following events has occurred and that the Company therefore intends to exercise its option to
prepay the payments due under the Loan Agreement in whole or in part and thereby effect the
redemption of Bonds in whole or in part to the extent of such prepayments: (a) the Company
shall have determned or concurred in a determination that the continued operation of the Plant is
impracticable, uneconomical or undesirable for any reason; (b) all or substantially all of the Plant
shall have been condemned or taken by eminent domain; (c) the operation of the Plant shall have
been enjoined or shall have otherwise been prohibited by. or shall conflct with. any order,
decree, rule or regulation of any court or of any federal. state or local regulatory body,
administrative agency or other governmental boy; (d) unreasonable burdens or excessive
liabilties shall have been imposed upon the Company in respect of all or a part of the Pollution
Control Facilities or the Plant including. without limitation, federal, state or other ad valorem.
propert, income or other taes not being imposed on the date of the Loan Agreement, as well as
any statute or regulation enacted or promulgated after the date of the Loan Agreement that
prevents the Company from deducting interest in respect of the Agreement for federal income
tax purposes; or (e) all or substantially all of the Project shall be transferred or sold to any entity
other than an affliate of the Company.
The Bonds shall be subject to redemption upon prepayment of the Loan Payments at the
option of the Company, in whole, or in part by lot. pnor to their maturity, as follows:
(a) While the Bonds bear interest at a Aexible Interest Rate or Rates, each
Bond shan be subject to such redemption on the day next succeeding the last day of each
Aexible Segment for such Bond at a redemption price equal to 100% of the principal
amount thereof.
(b) While the Bonds bear interest at a Daily Interest Rate or a Weekly Interest
Rate. the Bonds shall be. with the consent of the Provider, subject to such redemption on
any Business Day at a redemption price equal to 100% of the principal amount thereof,
plus accrued interest, if any. to the redemption date.
(c) While the Bonds bear interest at a Term Interest Rate, the Bonds shaU be
subject to such redemption (1) on the day next succeeding the last day of each Term
Interest Rate Period at a redemption price equal to the principal amount of the Bonds
being redeemed plus accrued interest, if any, to the redemption date and (2) either (i) on
the redemption dates and at the redemption prices specified by the Company pursuant to
the next succeeding paragraph or (ii) dunng the redemption periods specified below. in
each case in whole or in par. at the redemption prices (expressed as percentages of
principal amount) hereinafter indicated plus accrued interest. if any, to the redemption
date:
A-8 Series 2010A Trust Indenture
LENGTH OF TERM
INTEREST RATE PEIOD REDEMPTION DATES AND PRICES
Greater than or equal to 11 years At any time on or after the first day of the
calendar month following the tenth anniversary of
the effective date at 102% declining 1 % annually
to 100%
Less than 1 1 years Not redeemable
With respect to any Term Interest Rate Period, the Company may specify redemption
provisions, prices and periods other than those set forth above; provided, however, at the time of
such specification, the Company shall provide a Favorable Opinion of Bond Counsel to the
effect that the proposed action is not prohibited by the laws of the State and the Indenture and
wiJ not adversely affect the Tax-Exempt status of the Bonds.
The Bonds shall be redeemed in whole on any date from amounts which are to be prepaid
by the Company under the Loan Agreement, at a redemption price equal to 100% of the principal
amount thereof plus interest accrued, if any, to the redemption date within 180 days after the
occurrence of a Determination of Taxabilty; provided that if, in the Favorable Opinion of Bond
Counsel delivered to the Trustee, the redemption of a specified portion of the Bonds outstanding
would have the result that interest payable on the Bonds remaining outstanding after such
redemption would remain Tax-Exempt, then the Bonds shall be redeemed in part by lot (in
Authonzed Denominations), in such amount as Bond Counsel in such opinion shall have
determined is necessary to accomplish that result.
A "Determination of Taxabilty" shall be deemed to have occurred if as a result of the
Company's failure to observe any covenant, agreement or representation in the Loan Agreement,
a final decree or judgment of any federal court or a final action of the Internal Revenue Service
determines that interest paid or payable on any Bond is or was includible in the gross income of
an Owner of the Bonds for federal income tax purpses under the Code (other than an Owner
who is a "substantial user" or "related person" within the meaning of Section lO3(b)(13) ofthe
1954 Code). However, no such decree or action wil be considered final for this purpse unless
the Company has been given written notice and, if it is so desired and is legally allowed, has
been afforded the opportunity to contest the same, either directly or in the name of any Owner of
a Bond, and until conclusion of any appellate review, if sought.
Notice of any optional or mandatory redemption shall be given by first-class mail not less
than 15 days nor more than 60 days prior to the date fixed for redemption to the Owners of
Bonds at the address shown on the registration books of the Registrar on the date such notice is
mailed. Such notice shall state, among other things, that such redemption shall be conditional
upon the receipt of Available Moneys sufficient to pay the principal of, and premium, if any, and
interest on such Bonds to be redeemed. In the event such Available Moneys are (a) not so
received, (b) no longer sufficient to pay the principal of, and premium, if any, and interest on,
such Bonds or (c) no longer considered Available Moneys, in each case, on the redemption date;
the redemption shall not be made and the Trustee shall within a reasonable time thereafter give
A-9 Series 2OIOA Trust Indenture
notice, in the manner in which the notice of redemption was given, that such redemption wil not
take place. If less than all of the Bonds are called for redemption, the Trustee shall select the
Bonds or any given portion thereof from the outstanding Bonds or such given portion thereof not
previously called for redemption, by lot. For the purpose of any such selection the Trustee shall
assign a separate number for each minimum Authorized Denomination of each Bond of a
denomination of more than such minimum; provided that, following any such selection, both the
porton of such Bond to be redeemed and the portion remaining shall be in Authorized
Denominations. Notwithstanding the foregoing provisions, Pledged Bonds shall be redeemed
prior to any other Bonds.
Subject to the limitations and upon payment of the charges, if any, provided in the
Indenture, Bonds may be exchanged at the Prncipal Office of the Registrar for a like aggregate
pnncipal amount of Bonds of the same tenor and of Authorized Denominations.
This Bond is transferable by the person in whose name it is registered, in person, or by its
attorney duly authorized in writing, at the Principal Office of the Registrar, but only in the
manner, subject to the limitations and upon payment of the charges provided in the Indenture,
and upon surrender and cancellation of this Bond accompanied by a written instrument of
transfer in a form approved by the Registrar, duly executed. Upon such transfer a new fully
registered Bond or Bonds in Authorized Denominations, for the same aggregate principal
amount, wil be issued to the trcmsferee in exchange therefor.
The Issuer, the Registrar, the Trustee and any agent of the Issuer, the Registrar or the
Trustee may treat the person in whose name this Bond is registered as the owner hereof for the
purpse of receiving payment as herein provided and for all other purpses, whether or not this
Bond be overdue, and neither the Issuer, the Registrar, the Trustee, any paying agent nor any
such agent shall be affected by notice to the contrary.
The Bonds are equally and ratably secured, to the extent provided in the Indenture, by the
pledge thereunder of the "Revenues," which term is used herein as defined in the Indenture and
which as therein defined means all moneys paid or payable to the Trustee for the account of the
Issuer in accordance with the Loan Agreement, including all moneys drawn under or paid on the
Credit Facility and deposited in the Bond Fund and the Credit Facility Fund to pay principal of
the Bonds (and premium, if any, on the Bonds if covered by such Credit Facility) upon
redemption, at maturity or upon acceleration of maturity, or to pay interest on the Bonds when
due, and all receipts credited under the provisions of the Indenture against such payments;
provided, however, that "Revenues" shall not include moneys held by the Trustee to pay the
purchase price of Bonds subject to purchase pursuant to the Indenture. The Issuer has also
pledged and assigned to the Trustee as security for the Bonds all other rights and interests of the
Issuer under the Loan Agreement (other than its rights to indemnification and certin
administrtive expenses and certain other rights).
The Owner of this Bond shall have no right to enforce the provisions of the Indenture, or
to institute action to enforce the covenants therein, or to take any action with respect to any
Event of Default under the Indenture, or to institute, appear in or defend any suit or other
proceeding with respect thereto, except as provided in the Indenture.
A-tO Series 20 lOA Trust Indenture
With certin exceptions as provided therein, the Indenture and the Loan Agreement may
be modified or amended only with the consent of the Provider (unless a Provider Default as
specified in the Indenture shall have occurred and be continuing) and the Owners of not less than
60% in aggregate principal amount of all Bonds then Outstanding under the Indenture.
Reference is hereby made to the Indenture, the Loan Agreement, the Credit Facilty and
the Tax Certificate, copies of which are on fie with the Trustee, for the provisions, among
others, with respect to the nature and extent of the rights, duties and obligations of the Issuer, the
Company, the Trustee, the Registrar, the Remarketing Agent, the Provider and the Owners of the
Bonds. The Owner of this Bond, by the acceptance hereof, is deemed to have agreed and
consented to and to be bound by the terms and provisions of the Indenture, the Loan Agreement
and the Tax Certficate.
The Indenture prescribes the manner in which it may be discharged, including, except as
otherwise provided in the Indenture, (a) a provision that the Bonds shall be deemed to be paid if
moneys, which constitute Available Moneys or moneys drawn or paid on the Credit Facility
(other than a Credit Facility that consists solely of a facility on which the Company or any
affliate thereof is the obligor), suffcient to pay the principal of, premium, if any, and interest on
the Bonds and all necessary and proper fees, compensation and expenses of the Trustee, the
Registrar, the Provider and the Remarketing Agent, shall have been deposited with the Trustee,
after which the Bonds shall no longer be secured by or entitled to the benefits of the Indenture,
except for the purpses of registration and exchange of Bonds and of delivery of the Bonds to the
Trustee for purchase, and (b) a provision that, if the Bonds mature or are called for redemption
prior to the next date upon which the Bonds are subject to purchase pursuant to the Indenture,
and if the Company waives its right to adjust the interest rate borne by the Bonds, the Bonds
shall be deemed to be paid if (i) moneys, which shall be Available Moneys or moneys drawn
under or paid on the Credit Facility (other than a Credit Facility that consists solely of a facility
on which the Company or any affliate thereof is the obligor), sufficient to make such payment,
and/or Government Obligations purchased with Available Moneys or moneys drawn under or
paid on the Credit Facility (other than a Credit Facility that consists solely of a facility on which
the Company or any affliate thereof is the obligor) and maturing as to pnncipal and interest in
such amounts and at such times as to insure, without reinvestment, the availability of sufcient
moneys to pay the principal of, premium, if any, and interest on the Bonds and an necessa and
proper fees, compensation and expenses of the Trustee and the Registrar, shall have been
deposited with the Trustee, after which the Bonds shall no longer be secured by or entitled to the
benefits of the Indenture, except for the purpses of registration and exchange of Bonds and of
such payment.
No recourse shall be had for the payment of the principal of, premium, if any, or interest
on any of the Bonds or for any claim based thereon or upon any obligation, covenant or
agreement in the Indenture contained, against any past, present or future offcer, elected offcial
agent or employee of the Issuer, or any incorprator, officer, director or member of any
successor corporation, as such, either directly or through the Issuer or any successor corporation,
under any rule of law or equity, statute or constitution or by the enforcement of any assessment
or penalty or otherwise, and all such liability of any such incorporator, officer, director or
A-ll Senes 20 lOA Tnist Indenture
member is hereby expressly waived and released as a condition of and in consideration for the
execution of the Indenture and the issuance of any of the Bonds.
IT IS HEREBY CERTIAED, RECITED AND DECLARED that all acts. conditions and things
required to exist, happen and be performed precedent to and in the execution and delivery of the
Indenture and the issuance of this Bond do exist. have happened and have been peiformed in due
time. form and manner as required by law, and that the issuance of this Bond and the issue of
which it forms a part, together with all other obligations of the Issuer, does not exceed or violate
any constitutional or statutory limitation of indebtedness.
This Bond shall not be entitled to any secunty or benefit under the Indenture, or be valid
or become obligatory for any purpse, until this Bond shall have been authenticated by the
execution by the Registrar of the certficate of authentication inscnbed hereon.
IN WITNESS WHEREOF. CITY OF FORSYTH, MONTANA, has caused this Bond to be
executed in its name with the signature of its Mayor and attested by the signature of its City
Clerk-Treasurer, all as of the Issue Date specified above.
CITY OF FORSYTH, MONTANA
By:
Mayor
(SEAL)
ArrEST:
City Clerk-Treasurer
A-12 Series 20IOA Trust Indnture
(FORM OF TRUSTEE'S CERTIFICATE)
CERTIFICATE OF AUTHENTICATION
This is to certfy that this Bond is one of the Bonds of the Senes described in the within-
mentioned Indenture.
as Registrar
By:
Authorized Signatory
Date of registration and authentication:
A-13 Series 20lOA Trust Indenture
(FORM OF ASSIGNMENT)
The following abbreviations, when used in the inscription on the face of the within Bond,
shall be construed as though they were wntten out in full according to applicable laws or
regulations.
TEN COM
TENENT
JTTEN
as tenants in common
as tenants by the entirety
as joint tenants with right
of survivorship and not as
tenants in common
UNIFTRAN MIN ACf -
Custodian
(Cust) (Minor)
under Uniform Transfers to Minors Act of
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto
I
Insert Social Security or Other
Identifying Number of Assignee
(Please Prnt or Typewnte Name and Address of Assignee)
the within Bond of CIT OF FORSYTH, MONTANA, and hereby irrevocably constitutes and
appoints
attorney to register the transfer of the Bond on the books kept for registration thereof, with full
power of substitution in the premises.
DATED:
SIGNATURE GUARANTEED:
SIGNATUR:
NOTICE: Signature(s) must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Bond Registrar, which requirements include membership or partcipation in
STAMP or such other "signature guarantee program" as may be determined by the Bond
Registrar in addition to, or in substitution for , STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
NOTICE: The signature to this assignment must correspond with the name as it appears upon the
face of the within Bond in every particular, without alteration or enlargement or any change
whatever.
A-14 Series 20 i OA Trust Indenture
TRUST INDENTURE
BETWEEN
CITY OF FORSYTH, MONTANA
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N .A.
AsTRUSlEE
$6,700,00
CITY OF FORSYTH, MONTANA
POLLUTION CONTROL REVENUE REFUNDING BONDS
(A VISTA CORPORATION COLSTRIP PROJECT)
SERIES 2010A
DATED AS OF DECEMBER 1,2010
Or:r.r:i\ii\~-ilbi -Or
inn JAN -5 AM 10: 06
uiIJRt~C'¿~;!,,):;);;¡D¡ .
2912701.01.04.do
870260JRBtmo Series 20lOA Trust Indenture
TABLE OF CONTENTS
SECION PAGE
Recitals.............................................................................................................................................1
Granting Clauses..............................................................................................................................1
ARTICLE I DEANITIONS AND RULES OF CONSTRUCTION ............................................................2
Section 1.01. General Definitions ........................................................................................2
Section 1.02. Rules of Construction ..................................................................................16
A RTICL.E II THE BONDS ..... ...... ............. ........ ....................... .............. ....................... ..... ........... ...17
Section 2.01. Authonzation and Terms of Bonds..............................................................17
Section 2.02. Interest Rates and Rate Penods....................................................................18
Section 2.03. Daily Interest Rate .......................................................................................20
Section 2.04. Weekly Interest Rate ....................................................................................20
Section 2.05. Term Interest Rate........................................................................................21
Section 2.06. Flexible Interest Rate ...................................................................................22
Section 2.07. Rescission of Election ..................................................................................23
Section 2.08. Form of Bonds .............................................................................................24
Section 2.09. Execution of Bonds......................................................................................25
Section 2.10. Transfer and Exchange of Bonds.................................................................25
Section 2.11. Bond Register...............................................................................................26
Section 2.12. Bonds Mutilated, Lost, Destroyed or Stolen................................................26
Section 2.13. Bonds; Limited Obligations.........................................................................27
Section 2.14. Disposal of Bonds ........................................................................................27
Section 2.15. Book-Entr System ......................................................................................27
Section 2.16. Credit Facility Provisions ............................................................................29
Section 2.1 7 . CUSIP Numbers ..........................................................................................31
ARTICLE II PURCHASE AND REMARKElING OF BONDS ............................................................31
Section 3.01. Owner's Option to Tender for Purchase ......................................................31
Section 3.02. Mandatory Purchase.....................................................................................32
Section 3.03. Payment of Purchase Prce...........................................................................34
Section 3.04. Remarketing of Bonds by Remarketing Agent...........................................35
Section 3.05. Limits on Remarketing ...............................................................................36
Section 3.06. Delivery of Bonds; Delivery of Proceeds of Remarketing Sale;
Payments from Credit Facilty ...................................... ......................36
Section 3.07. No Remarketing Sales After Certin Events ..............................................38
Section 3.08. Notice of Mandatory Purchase.....................................................................39
Section 3.09. Pledged Bonds .............................................................................................39
- i -Series 20 lOA Tnist Indenture
SECTION PAGE
ARTICLE iv REDEMPTION OF BONDS ............... ...... .................. ................ .... ........... ......... .... ......1
Section 4.01. Redemption of Bonds Generally..................................................................1
Section 4.02. Redemption Upon Optional Prepayment .....................................................2
Section 4.03. Redemption Upon Mandatory Prepayment .................................................3
Section 4.04. Selection of Bonds for Redemption .............................................................43
Section 4.05. Notice of Redemption ..................................................................................44
Section 4.06. Partial Redemption of Bonds ..................................... ..................................5
Section 4.07. No Partal Redemption After Default ..........................................................5
Section 4.08. Payment of Redemption Prce .....................................................................45
Section 4.09. Effect of Redemption ... ............ ... ............. .................... ............. ............. .... ..45
ARTICLE V GENERL COVENANTS; CREDIT FACILITY; AND ADDITIONAL
COLLATERAL ........................................................... ..................................46
Section 5.01. Payment of Bonds ..................................,.....................................................46
Section 5.02. Performance of Covenants by Issuer; Authority; Due
Execution ..... ........ ............. ................... ..... .......... ... ......... ....... ........ ......46
Section 5.03. Immunities and Limitations of Responsibility of Issuer;
Remedies ..............................................................................................47
Section 5.04. Defense ofIssuer's Rights ...........................................................................8
Section 5.05. Recording and Filing; Further Instrments..................................................48
Section 5.06. Rights Under Agreement .............................................................................49
Section 5.07. Arbitrage and Tax Covenants ......................................................................49
Section 5.08. No Disposition of Trust Estate.....................................................................49
Section 5.09. Access to Books...........................................................................................49
Section 5.10. Source of Payment of Bonds...................................................................... ..50Section 5.i 1. Credit Facility. .............................................................................................50
Section 5.12. First Mortgage Bonds. .................................................................................50
Section 5.13. Additional Collateral....................................................................................52
ARTICLE VI DEPOSIT OF BOND PROCEEDS; FuND AND ACCOUNTS; REVENUES ......................52
Section 6.01. Creation of Bond Fund and Accounts; Credit FaciJty Fund;
Rebate Fund .........................................................................................52
Section 6.02. Disposition of Bond Proceeds and Certin Other Moneys ..........................52
Section 6.03. Deposits into the Bond Fund; Use of Moneys in the Bond
Fund .....................................................................................................53
Section 6.04. Bonds Not Presented for Payment of Prncipal ...........................................54
Section 6.05. Payment to the Company .............................................................................55
ARTICLE VII INVF~"ìMEN.l.S ........................................................................................................55
Section 7.01. Investment of Moneys in Funds...................................................................55
Section 7.02. Conversion of Investment to Cash ...............................................................56
Section 7.03. Credit for Gains and Charge for Losses.......................................................56
- II -Series 2010A Trust Indenture
SECfION PAGE
ARTICLE VIII DEFEASANCE........................................................................................................56
ARTICLE IX DEFAULTS AND REMEDIES .....................................................................................60
Section 9.01. Events of Default .........................................................................................60
Section 9.02. Acceleration; Other Remedies .....................................................................61
Section 9.03. Restoration to Former Position ....................................................................64
Section 9.04. Owners' Right to Direct Proceedings ..........................................................64
Section 9.05. Limitation on Owners' Right to Institute Proceedings ................................65
Section 9.06. No Impairment of Right to Enorce Payment.............................................65
Section 9.07 . Proceedings by Trustee Without Possession of Bonds ................................65
Section 9.08. No Remedy Exclusive..................................................................................65
Section 9.09. No Waiver of Remedies............................................................. ..................66
Section 9.10. Application of Moneys ................................................................................66
Section 9.11. Severabilty of Remedies .............................................................................67
ARTICLE X TRUSTEE; PAYING AGENT; REGISTRAR; REMARKEfING AGENT ...........................67
Section 10.01. Acceptance of Trusts................................................................. .................67
Section 10.02. No Responsibilties for Recitals.................................................................68
Section 10.03. Limitations on Liability .............................................................................68
Section 10.04. Compensation, Expenses and Advances....................................................69
Section 10.05. Notice of Events of Default and Determination of Taxabilty ...................70
Section 10.06. Action by Trustee.......................................................................................71
Section 10.07. Good-Faith Reliance..................................................................................71
Section 10.08. Dealings in Bonds; Allowance of Interest .................................................72
Section 10.09. Several Capacities......................................................................................72
Section 10.10. Resignation of Trustee ...............................................................................72
Section 10.11. Removal of Trustee.................................................................. ..................73
Section 10.1 2. Appointment of Successor Trustee ............................................................73
Section 10.13. Qualifications of Successor Trustee...........................................................74
Section 10.14. Judicial Appointment of Successor Trustee...............................................74
Section 10.15. Acceptance of Trusts by Successor Trustee...............................................74
Section 10.16. Successor by Merger or Consolidation ......................................................74
Section 10.17. Standard of Care ........................................................................................75
Section 10.1 8. Intervention in Litigation of the Issuer ......................................................75
Section 10.19. Remarketing Agent ....................................................................................75
Section 10.20. Qualifications of Remarketing Agent ........................................................75
Section 10.21. Registrar .....................................................................................................76
Section 10.22. Qualifications of Registrar; Resignation; Removal...................................76
Section 10.23. Paying Agents ............................................................................................77
Section 10.24. Additional Duties of Trustee......................................................................77
- iii -Series 20lOA Trust Indenture
SECTION
PAGE
ARTICLE XI EXECUTION OF INSTRUMENTS BY OWNERS AND PROOF OF
OWNERSHIP OF BONDS ....................................... .......................................78
ARTICLE XII MODIFICATION OF THIS INDENTURE AND THE AGREEMENT ...............................79
Section 12.01. Supplemental Indentures Without Owner Consent...................................79
Section 12.02. Supplemental Indentures Requiring Owner Consent................................81
Section 12.03. Effect of Supplemental Indenture ..............................................................82
Section 12.04. Consent of the Company and the Provider ................................................82
Section 12.05. Amendment of Agreement Witbout Owner Consent................................82
Section 12.06. Amendment of Agreement Requiring Owner Consent.............................83
ARTICLE xni MISCELLANEOUS .................................................................................................84
Section 13.01. Successors of the Issuer .............................................................................84
Section 13.02. Parties in Interest........................................................................................84
Section 13.03. Severability ................................................................................................84
Section 13.04. No Personal Liability of Issuer Officials ...................................................85
Section 13 .05. Bonds Owned by tbe Issuer or tbe Company... ...... ..... .................. ....... ......85
Section 13.06. Counterparts. ........... .... ...... ..... ..... ............ ......................... ...... ..... ......... ......85
Section 13.07. Governing .Lw ..........................................................................................85
Section 13.08. Notices .......................................................................................................85
Section 13.09. Holidays .....................................................................................................86
Section 13.10. Purchase of Bonds by Trustee and Remarketing Agent ............................86
Section 13.1 i. Notices to Moody's and S&P ....................................................................86
Section 13.12. Rights of Provider ......................................................................................87
Signatures ........................................................................................... ............................................88
EXHIBIT A - FORM OF BOND
- IV-Series 20lOA Trusllndenture
TRUST INDENTURE
THIS TRUST INDENTURE is made and entered into as of December 1, 2010, between the
CITY OF FORSYTH, MONTANA, a political subdivision duly organized and existing under the
Constitution and laws of the State and The Bank of New York Mellon Trust Company, N A., as
trustee.
RECITALS
A. In furterance of its public purpses, the Issuer has entered into a Loan Agreement,
dated as of December 1,2010, with Avista Corpration, a Washington corporation, providing for
the issuance by the Issuer of the Bonds for the purpose of refunding, in advance of stated
maturity, the Prior Bonds.
B. The execution and delivery of this Indenture and the issuance and sale of the Bonds
have been in all respects duly and validly authonzed by proper action duly adopted by the
governing authority of the Issuer.
c. The execution and delivery of the Bonds and of this Indenture have been duly
authorized and all things necessary to make the Bonds, when executed by the Issuer and
authenticated by the Trustee, valid and binding legal obligations of the Issuer and to make this
Indenture a valid and binding agreement have been done.
Now, THEREFORE, THIS TRUST INDENTURE WITNESSETH:
GRANTING CLAUSES
The Issuer, in consideration of the premises and the acceptance by the Trustee of the
trusts hereby created and of the purchase and acceptance of the Bonds by the Owners thereof,
and for other good and valuable consideration, the receipt of which is hereby acknowledged, in
order to secure the payment of the principal of, and premium, if any, and interest on, the Bonds
according to their tenor and effect and to secure the performance and observance by the Issuer of
all the covenants expressed or implied herein and in the Bonds, does hereby grant, bargain, sell
convey, mortgage and warrnt, and assign, pledge and grant a security interest in, the Trust
Estate to the Trustee, and its successors in trust and assigns forever for the benefit of the Owners:
TO HAVE AND TO HOLD aU and singular the Trust Estate, whether now owned or
hereafter acquired, to the Trustee and its respective successors in trust and assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the equal and
proportonate benefit, security and protection of all present and future Owners of the Bonds
issued under and secured by this Indenture without privilege, priority or distinction as to the lien
or otherwise of any of the Bonds over any of the other Bonds;
Series 20lOA Trust Indenture
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall well and trly
pay, or cause to be paid, the principal of, and premium, if any, and interest on, the Bonds due or
to become due thereon, at the times and in the manner mentioned in the Bonds and as provided
in Article VII hereof according to the true intent and meaning thereof, and shall cause the
payments to be made as required under Artcle V hereof, or shall provide, as permitted hereby,
for the payment thereof in accordance with Article VII hereof, and shall well and trly keep,
perform and observe all the covenants and conditions pursuant to the terms of this Indenture to
be kept, performed and observed by it, and shall pay, or cause to be paid, the principal of, and
premium, if any, and interest on, the Bonds due or to become due in accordance with the terms
and provisions hereof, then and in that case this Indenture and the nghts hereby granted shall
cease, terminate and be void and the Trustee shall thereupon cancel and discharge this Indenture
and execute and deliver to the Issuer, the Company and the Provider such instrments in writing
as shall be requisite to evidence the discharge hereof, otherwise this Indenture shall be and
remain in full force and effect.
THIS TRUST INDENTURE FuRTHER WITNESSElH, and it is expressly declared, that all
Bonds issued and secured hereunder are to be issued, authenticated and delivered, and all of the
Trust Estate is to be dealt with and disposed of, under, upon and subject to the terms, conditions,
stipulations, covenants, agreements, trusts, uses and purpses hereinafter expressed, and the
Issuer has agreed and covenanted, and does hereby agree and covenant, with the Trustee and
with the respective Owners, from time to time, of the Bonds, or any part thereof, as foHows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTON
Section 1.01. General Definitns. The terms defined in this Section 1.01 shaH have the
meanings provided herein for all purposes of this Indenture and the Agreement, unless the
context clearly requires otherwise.
"Act" means Sections 90-5-101 to 9O-5-114, inclusive, Montana Code Annotated, as
from time to time supplemented and amended.
"Additional Collateral" means any form of collateral delivered by the Company pursuant
to Section 4.09 of the Agreement.
"Agreement" or "Loan Agreement" means the Loan Agreement, dated as of
December 1,2010, between the Issuer and the Company, as amended and supplemented from
time to time.
"Authorized Company Representative" means any Senior Vice President, any Vice
President, its Treasurer or any Assistant Treasurer of the Company and each other person
designated to act on behalf of the Company by written certificate furnished to the Issuer, the
Provider and the Trustee containing the specimen signature of such person and signed on behalf
of the Company by its President, any Senior Vice President, any Vice President, its Secretary,
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any Assistant Secretary, its Treasurer or any Assistant Treasurer. Such certficate may designate
an alternate or alternates.
"Authorized Denomination" means (i) $100,00 or any integral multiple of $5,00 in
excess of $100,000 when the Bonds bear interest at a Daily Interest Rate, a Weekly Interest Rate
or a Flexible Interest Rate; and (ii) $5,00 or any integral multiple of $5,00 when the Bonds
bear interest at a Term Interest Rate.
"Available Moneys" means:
(a) dunng such time as the Credit Facilty then in effect consists of a direct
pay letter of credit,
(i) moneys on deposit in trust with the Trustee as agent and bailee for
the Owners of the Bonds for a penod of at least 123 days pnor to and dunng
which no petition in bankruptcy or similar insolvency proceeding has been fied
by or against the Company or the Issuer (or any subsidiary of the Company, any
guarantor of the Company or any insider (as defined in the United States
Bankrptcy Code), to the extent that such moneys were deposited by any of such
subsidiary, guarantor or insider) or is pending (unless such petition shall have
been dismissed and such dismissal shall be final and not subject to appeal) and
(ii) (A) proceeds of the issuance of refunding bonds (including
proceeds from the investment thereof), and
(B) any other moneys, if, in the written opinion of nationally
recognized counsel expenenced in bankrptcy matters selected by the
Company (which opinion shall be in a form acceptable to the Trustee, to
Mooy's, if the Bonds are then rated by Moody's, and to S&P, if the
Bonds are then rated by S&P and shall be delivered to the Trustee at or
pnor to the time of the deposit of such proceeds with the Trustee), the
deposit and use of such proceeds (referred to in clause (A) above) or other
moneys (referred to in clause (B) above) wil not constitute a voidable
preference under Section 547 of the United States Bankrptcy Code in the
event either the Issuer or the Company were to becorne a debtor under the
United States Bankrptcy Code, and
(b) dunng such time as the Credit Facility then in effect is not a direct pay
letter of credit or there is no Credit Facilty then in effect, any moneys on deposit with the
Trustee as agent and bailee for the Owners of the Bonds and proceeds from the
investment thereof.
"Beneficial Owner" has, when the Bonds are held in book-entry form, the meaning
ascribed to such term in Section 2.15 hereof.
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"Bond" or "Bonds" means the Issuer's Pollution Control Revenue Refunding Bonds
(A vista Corporation Colstrp Project) Series 201OA, issued pursuant to this Indenture.
"Bond Counsel" means Chapman and Cutler LLP or any other firm of nationally
recognized bond counsel familiar with the type of transactions contemplated under this Indenture
selected by the Company.
"Bond Documents" means this Indenture, the Agreement and the Bonds.
"Bond Fund" means the trust fund by that name created pursuant to Section 6.01(a)
hereof.
"Bond Payment Date" means any Interest Payment Date and any other date on which the
principal of, and premium, if any, and interest on, the Bonds is to be paid to the Owners thereof,
whether upon redemption, at maturity or upon acceleration of maturity of the Bonds.
"Bond Resolution" means the resolution duly adopted and approved by the City Council
of the Issuer on December 6, 2010, authorizing the issuance and sale of the Bonds and the
execution of this Indenture and the Agreement.
"Business Day" means any day except a Saturday, Sunday or other day (a) on which
commercial banks located in the cities in which the Prncipal Offce of the Provider, the Principal
Office of the Trustee, the Pnncipal Office of the Company, the Prncipal Office of the
Remarketing Agent or the Prncipal Office of the Paying Agent are located are required or
authorized by law or regulation to remain closed or are closed, or (b) on which The New York
Stock Exchange is closed.
"Change of Credit Facility" means (a) the delivery of a Credit Facilty (or evidence
thereof) to the Trustee, (b) the termination of an existing Credit Facility or (c) a combination of
(a) and (b), in each case in accordance with Section 4.07 of the Agreement.
"Closing" and "Closing Date" means the date of the first authentication and delivery of
fully-executed and authenticated Bonds under this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a
section of the Code herein shaH be deemed to include the United States Treasury Regulations,
including temporary and proposed regulations, relating to such section which are applicable to
the Bonds orthe use of the proceeds thereof.
"1954 Code" means the Internal Revenue Code of 1954, as amended. Each reference to
a section of the 1954 Code herein shall be deemed to include the United States Treasury
Regulations, including temporary and proposed regulations, relating to such section which are
applicable to the Bonds or the use of the proceeds thereof.
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"Company" means Avista Corporation, a corporation organized and existing under the
laws of the State of Washington and formerly known as The Washington Water Power
Company, or its successors and assigns pursuant to Section 5.01 of the Agreement.
"Company Mortgage" means (a) with respect to First Mortgage Bonds, the Mortgage
and Deed of Trust, dated as of June 1,1939, between the Company and the Company Mortgage
Trustee, as heretofore and hereafter supplemented and amended, and (b) with respect to any
Additional Collateral, references herein and in the Agreement to the Company Mortgage shall
instead mean the mortgage and deed of trst or other agreement pursuant to which the Additional
Collateral is issued, except as may be otherwise provided in a Supplemental Indenture entered
into pursuant to Section 12.01(q) hereof or a supplement to the Agreement entered into pursuant
to Section 12.05(1) hereof.
"Company Mortgage Trustee" means Citibank, NA., formerly First National City Bank
(successor by merger to First National City Trust Company, formerly City Bank Farmers Trust
Company), its successors in trust and their assigns. Upon delivery of any Additional Collateral
that is not First Mortgage Bonds, references herein and in the Agreement to the Company
Mortgage Trustee shall instead mean the trstee with respect to such Additional Collateral,
except as may be otherwise provided in a Supplemental Indenture entered into pursuant to
Section 12.01(q) hereof or a supplement to the Agreement entered into pursuant to
Section 12.05(1) hereof.
"Company Supplemental Indenture" means a supplemental indenture supplementing the
Company Mortgage and providing for the issuance of First Mortgage Bonds or Additional
Collateral, as the case may be.
"Credit Facility" means a facilty provided in accordance with Section 4.07 of the
Agreement to provide security or liquidity for the Bonds. The term "Credit Facility" includes,
by way of example and not of limitation, one or more letters of credit, bond insurance policies,
standby bond purchase agreements, lines of credit, First Mortgage Bonds, other Company
mortgage bonds and other security instruments or liquidity devices. A Credit Facility may have
an expiration date earlier than the maturity of the Bonds. The initial Credit Facility shall be First
Mortgage Bonds.
"Credit Facility Agreement" means, for any Credit Facility that is not First Mortgage
Bonds, any agreement between the Company and the Provider and relating to the Credit Facilty
then in effect. For a Credit Facility that consists of First Mortgage Bonds, Credit Facilty
Agreement shall mean the Company Mortgage.
"Credit Facility Fund" means the trust fund by that name created pursuant to Section
6.01(b) hereof.
"Daily Interest Rate" means the interest rate on the Bonds established pursuant to
Section 2.03 hereof.
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effect.
"Daily Interest Rate Period" means each period during which a Daily Interest Rate is in
"Delivery Offce of the Trustee" means the offce designated as such by the Trustee in
writing to the Remarketing Agent, the Registrar, the Issuer, the Provider and the Company.
"Determin.ation of Taxabilty" shall have the meaning set forth in Section 8.03 of the
Agreement. The Trustee shall give notice of a Determination of Taxability as provided in
Section 10.05 hereof.
"DTC" means The Depository Trust Company and its successors and assigns.
"DTC Participants" means those brokers, securities dealers, banks, trust companies,
clearing corprations and certin other organizations from time to time for which DTC holds
Bonds as securities depository.
"DTC Representation Letter" has the meaning assigned thereto in Section 2.l5(c) hereof.
"Eligible Accoun.t" means an account that is either (a) maintained with a federal or state-
chartered depository institution or trust company that has a S&P short-term debt rating of at least
A-2 (or, if no short-term debt rating, a long-term debt rating of at least BBB+); or (b) maintained
with the corporate trust department of a federal depository institution, trst company or state-
chartered depository institution subject to regulations regarding fiduciary funds on deposit,
which, in either case, has corprate trust powers and is acting in its fiduciary capacity. In the
event that an account required to be an "Eligible Account" no longer complies with the
requirement, the Trustee (upon having actual knowledge of such non-compliance) should
promptly (and, in any case, within not more than 30 calendar days) move such account to another
financial institution such that the Eligible Account requirement wil again be satisfied.
"Event of Default" means any occurrence or event specified in Section 9.01 hereof
"Executive Offcer" means the Mayor of the Issuer.
"Exempt Facilities" means facilities which qualify as "sewage or solid waste disposal
facilities" or "air or water pollution control facilities" as defined in the 1954 Code and which
qualify as a "project" under the Act.
"Favorable Opinion of Bond Counsel" means an opinion of Bond Counsel addressed to
the Issuer and the Trustee to the effect that the proposed action is not prohibited by the Act or the
Indenture or the Loan Agreement, as applicable, and wiI not adversely affect the Tax-Exempt
status of the Bonds. The Favorable Opinion of Bond Counsel may be in such form and with
such disclosures that such opinion wil not be treated as a "covered opinion" for purpses of the
Treasury Department Regulations governing practice before the Internal Revenue Service
(Circular 230), 31 CFR Part 10.
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"First Mortgage Bonds" means a series of first mortgage bonds issued and delivered
under the Company Mortgage, and held by the Trustee as Additional Collateral, a Credit Facility,
or both, as may be designated in writing to the Trustee by an Authorized Company
Representative at the time the Company delivers such First Mortgage Bonds to the Trustee.
"Flexible Intere!it Rate" means, with respect to any Bond, the interest rate or rates
associated with such Bond established in accordance with Section 2.06 hereof.
"Flexible Interest Rate Period" means each period comprised of Flexible Segments
dunng which Rexible Interest Rates are in effect.
"Flexible Segment" means, with respect to each Bond bearing interest at a Flexible
Interest Rate, the period established in accordance with Section 2.06(a) hereof.
"Government Obligations" means direct obligations of, OT obligations the principal of
and interest on which are fully and unconditionally guaranteed as to full and timely payment by,
the United States of America, which are not subject to redemption or prepayment prior to stated
maturity.
"Indenture" means this Trust Indenture between the Issuer and the Trustee relating to
issuance of the Bonds, as amended or supplemented from time to time as permitted herein.
"Information Services" means Financial Information, Inc.'s "Daily Called Bond
Service," 30 Montgomery Street, 10th ROOT, Jersey City, New Jersey 07302, Attention: Editor;
Standard & Poor's J. J. Kenny's "Called Bond Service," 55 Water Street, 45th Floor, New York,
New York 1001; Mergents "Municipal and Government Manual," 60 Madison Avenue, New
York, New York 10010, Attention: Customer Service and the Municipal Securities Rulemaking
Board, CDI, 190 Duke Street, Alexandria, Virginia 22314, Attention: MSIL Dept.; or, in
accordance with then-eurrent guidelines of the Securities and Exchange Commission, such other
addresses and/or such other services providing information with respect to called bonds, or no
such services, as the Company may designate in a certificate delivered to the Trustee.
"Interest Account" means the trust account by that name established in the Bond Fund
pursuant to Section 6.01 hereof.
"Interest Component" means the maximum amount stated in the Credit Facilty (as
reduced and reinstated from time to time in accordance with the terms thereof), which may be
drawn upon with respect to payment of accrued interest in accordance with Section 2.l6(a)
hereof or the portion of the purchase pnce of Bonds delivered pursuant to Section 3.01 and
Section 3.02 hereof corresponding to interest accrued on the Bonds on or prior to the stated
maturity thereof.
"Interest Coverage Rate" means the interest rate specified in a Credit Facility as being
the rate used to determine the amount of interest on the Bonds covered by such Credit Facility.
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"Interest Coverage Period" means the number of days specified in the Credit Facility, as
the case may be, which is used to determine the Interest Component.
"Interest Payment Date" means:
(a) with respect to any Daily or Weekly Interest Rate Period, the first
Business Day of each calendar month,
(b) with respect to any Term Interest Rate Period, any day in the sixth month
following the commencement of the Term Interest Rate Penod and any day in each sixth
month thereafter, each as designated by the Company,
(c) with respect to any Flexible Segment, the Business Day next succeeding
the last day of such Flexible Segment, and
(d) with respect to any Rate Period, the day next succeeding the last day
thereof.
"Investment Securities" means any of the foJlowing obligations or securities, to the
extent permitted by law and subject to the provisions of Artcle VII hereof, on which neither the
Company nor any of its subsidiaries is the obligor.
(a) Government Obligations;
(b) Obligations of any of the foJlowing federal agencies, which obligations
represent the fun faith and credit of the United States of America:
.Export-Import Bank
Farm Credit System Financial Assistance Corporation
Rural Economic Community Development Administration (formerly
the Farmers Home Administration)
General Services Administration
U.S. Maritime Administration
Small Business Administration
Government National Mortgage Association (GNMA)
U.S. Department of Housing & Urban Development (PHA' s)
Federal Housing Administration
Federal Financing Bank;
.
.
.
.
.
.
.
.
.
(c) Direct obligations of any of the following federal agencies which
obligations are not fully guaranteed by the fuJI faith and credit of the United States of
America:
.Senior debt obligations rated "Aaa" by Moody's and "AAA" by
S&P issued by the Federal National Mortgage Association (FNMA)
or Federal Home Loan Mortgage Corpration (FHLMC)
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.Obligations of the Resolution Funding Corporation (REFCORP)
Senior debt obligations of the Federal Home Loan Bank System
Senior debt obligations of other government-sponsored agencies
approved by the Provider;
.
.
(d) U.S. dollar denominated deposit accounts, federal funds, trust funds. trust
accounts, interest beanng deposits, interest bearing money market accounts, time
deposits, overnight bank deposits, demand deposits and bankers' acceptances with
domestic commercial banks (including the Trustee or any of its affiliates) which have a
rating on their short term certficates of deposit on the date of purchase of "A-I" or
"A-l +" by S&P or "P-I" by Mooy's and maturing no more than 360 days afer the date
of purchase or are fully FDIC-insured. (Ratings on holding companies are not considered
as the rating of the bank.);
(e) Commercial paper which is rated at the time of purchase in the single
highest classification, "A-l+" by S&P or "P-L" by Moody's and which matures not more
than 270 days after the date of purchase;
(f) Investments in a money market mutual fund rated having a rating in the
highest investment category granted thereby from S&P or Moody's, including, without
limitation any mutual fund for which the Trustee or an affliate of the Trustee serves as
investment manager, administrtor, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (i) the Trustee or an afliate of the Trustee receives
fees from funds for services rendered, (ii) the Trustee collects fees for services rendered
pursuant to this Indenture, which fees are separate from the fees received from such
funds. and (iii) services performed for such funds and pursuant to this Indenture may at
times duplicate those provided to such funds by the Trustee or an affiiate of the Trustee;
(g) Pre-refunded Municipal Obligations defined as follows: Any bonds or
other obligations of any state of the United States of America or of any agency,
instrumentality or local governmental unit of any such state which are not callable at the
option of the obligor prior to maturity or as to which irrevocable instructions have been
given by the obligor to call on the date specified in the notice; and
(1) which are rated, based on an irrevocable escrow account or fund
(the "escrow"), in the highest rating category of S&P and Moody's or any
successors thereto; or
(2) (i) which are. fully secured as to principal and interest and
redemption premium, if any, by an escrow consisting only of cash or Government
Obligations, which escrow may be applied only to the payment of such principal
of and interest and redemption premium, if any, on such bonds or other
obligations on the maturity date or dates thereof or the specified redemption date
or dates pursuant to such irrevocable instructions, as appropriate, and (ii) which
escrow is sufficient, as verified by a nationally recognized independent certfied
public accountant, to pay principal of and interest and redemption premium, if
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~
any, on the bonds or other obligations described in this clause (g) on the maturity
date or dates specified in the irrevocable instructions referred to above, as
appropriate;
(h) General obligations of states with a rating of at least "A2/A" or higher by
both Moody's and S&P;
(i) Investment agreements approved in writing by the Provider supported by
opinions of counsel to the investment agreement provider with notice to Moody's and
S&P; and
(j) Other forms of investments (including repurchase or reverse repurchase
agreements, including those of the Trustee or any of its affliates) approved in writing by
the Provider with notice to Moody's and S&P.
"Issue Date" means the date of the initial authentication and delivery of the Bonds, being
December 15,2010.
"Issuer" means the City of Forsyth, Montana, and its successors, and any political
subdivision resulting from or surviving any consolidation or merger to which it or its successors
may be a party.
"Loan Payments" means the payments required to be made by the Company pursuant to
Section 4.01 (a) of the Agreement.
"Mail" means by first-class mail postage prepaid.
"Maturity Date" means October 1,2032.
"Maximum Interest Rate" means (a) while a Credit Facility is in effect that specifies an
Interest Coverage Rate, the lesser of i 8% per annum or the Interest Coverage Rate specified in
the Credit Facilty, and (b) at all other times, 18% per annum.
"Moody's" means Moody's Investors Service, a corporation organized and existing
under the laws of the State of Delaware, its successors and assigns, and, if such corporation shaH
for any reason no longer perform the functions of a securities rating agency, "Moody's" shaH be
deemed to refer to any other nationalJy recognized rating agency designated by the Company by
notice to the Issuer, the Trustee and the Remarketing Agent.
"Outstanding" or "Bonds Outstanding" or "Outstanding Bond" means, as of any given
date, all Bonds which have been authenticated and delivered by the Trustee under this Indenture,
except:
(a) Bonds canceled or purchased by or delivered to the Trustee for
cancellation;
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"
(b) Bonds that have become due (at maturity or on redemption, acceleration or
otherwise) and for the payment, including premium if any, and interest accrued to the due
date, of which sufficient moneys are held by the Trustee;
(c) Bonds deemed paid in accordance with Section 6.04 and Article VII
hereof; and
(d) Bonds in lieu of which others have been authenticated under Section 2.10
(relating to transfer and exchange of Bonds) or Section 2.12 (relating to mutilated, lost,
stolen, destroyed or undelivered Bonds) or Bonds paid pursuant to Section 2.12;
provided. however, that if the principal of or interest due on Bonds is paid by the Provider
pursuant to the Credit Facilty, such Bonds shall remain Outstanding for all purposes of this
Indenture until the Provider receives payment therefor as contemplated by the Credit Facilty.
Bonds purchased by the Trustee or the Company pursuant to Article II hereof wil
continue to be Outstanding until the Company has paid or caused to be paid to the Trustee an
amount sufficient to provide for the payment of all accrued interest on such Bonds and the
Company has directed the Trustee to cancel such Bonds. Bonds purchased pursuant to tenders
and not delivered to the Trustee for payment are not Outstanding, but there wil be Outstanding
Bonds authenticated and delivered in lieu of such undelivered Bonds as contemplated by
Section 3.03 hereof.
"Owner" or "Owners" or "Owner of Bonds" or "Owners of Bond" means the
registered owner of any Bond; provided however, when used in the context of the Tax-Exempt
status of the Bonds, the term .. Owners" shall include a Beneficial Owner.
"Paying Agent" means any paying agent appointed as provided in Section 10.23 hereof,
or any successor thereto.
"Person" means one or more individuals, estates, joint ventures, joint-stock companies,
partnerships, associations, corporations, limited liabilty companies, trusts or unincorporated
organizations, and one or more governments or agencies or political subdivisions thereof.
"Plant" means the Colstrip Plant Units 3 and 4 coal-fired steam electric generating plant,
located in Rosebud County, Montana.
"Pledged Bonds" means Bonds purchased with moneys drawn under a Credit Facility,
which consists of a direct pay letter of credit, following the tender thereof pursuant to Section
3.0 i or Section 3.02 hereof to be deemed owned by the Company for purpses of granting a first
priority lien upon Pledged Bonds hereunder, registered in the name of the Provider, as pledgee,
or in the name of the Trustee (or its nominee), as agent for the Provider, delivered to or upon the
direction of the Provider pursuant to Section 3.06(a)(iii) hereof.
"Pollution Control Facilties" means those items of machinery, equipment, structures,
improvements, other facilities and related property, which have been or wil be acquired,
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constrcted and improved at the Plant and are partcularly described in Exhibit A to the
Agreement, as said Exhibit A may be from time to time amended.
"Principal Account" means the trust account by that name established within the Bond
Fund pursuant to Section 6.01 hereof.
"Principal Offce of the Company" means the office of the Company specified in or
designated pursuant to Section 3.06(c) hereof.
"Principal Offce of the Paying Agent" means the office designated in writing by the
Paying Agent (which mayor may not be its principal corprate offce) to the Trustee, the Issuer,
the Company, the Registrar, the Provider and the Remarketing Agent.
"Principal Offce of the Provider" means the offce of the Provider located in the United
States of America and designated as the Prncipal Ofce of the Provider by the Provider in
writing to the Company, the Issuer, the Registrar, the Remarketing Agent and the Trustee.
"Principal Offce of the Registrar" means the offce or offices designated as such by the
Registrar (which mayor may not be its principal corporate offce) in writing to the Trustee, the
Company, the Issuer, the Provider and the Remarketing Agent.
"Principal Offce of the Remarketing Agent" means the offce designated in writing by
the Remarketing Agent to the Trustee, the Issuer, the Company, the Provider, the Registrar and
the Paying Agent.
"Principal Offce of the Trustee" means the office designated as such by the Trustee
(which mayor may not be its principal corporate office) in writing to the Remarketing Agent, the
Registrar, the Provider, the Issuer and the Company.
"Prior Agreement" means the Loan Agreement between the Issuer and the Company,
dated as of September 1,199, as amended and restated as of May 1,2005, pursuant to which the
Company is obligated to provide for payment of the Pror Bonds.
"Prior Bond Fund" means the bond fund created under Section 6.01(a) of the Pror
Indenture from which payments of principal and interest on the Prior Bonds are made.
"Prior Bonds" means the City of Forsyth, Montana, Pollution Control Revenue
Refunding Bonds (Avista Corporation Colstrp Project) Series 199A which are being refunded
pursuant to the Refunding with the proceeds of the Bonds.
"Prior Indenture" means the Trust Indenture between the Issuer and the Pror Trustee,
dated as of September 1, 199, as amended and restated as of May 1, 2005, pursuant to which the
Pror Bonds were issued.
"Prior Trustee" means The Bank of New York Mellon Trust Company, N.A., as
successor trustee under the Prior Indenture.
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"Project" means the Company's 15% undivided interest in the Pollution Control
Facilties.
"Project Certifcate" means the Company's certificate or certificates, delivered
concurrently with the initial authentication and delivery of the Bonds, with respect to certain
facts which are within the knowledge of the Company to enable Bond Counsel to determine
whether interest on the Bonds is includible in the gross income of the Owners thereof under
applicable provisions of the Code.
"Provider" and "Provider of the Credit Facility" means the provider of the Credit
Facilty; provided, however, Provider shall not include the Company as provider of the First
Mortgage Bonds.
"Provider Default" means any of the following events:
(a) the failure of the Prvider to make any payment required under the Credit
Facilty when the same shall become due and payable or the Credit Facility shall for any
reason cease to be in full force and effect;
(b) a decree or order for relief shall be entered by a court or insurance
regulatory authority having jurisdiction over the Provider in an involuntary case under an
applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, custodian, trustee, sequestrator (or similar offcial) of
the Provider or for any substantial part of the propert of the Provider or ordering the
winding-up or liquidation of the affairs of the Provider, and the continuance of any such
decree or order shaH be unstayed and remain in effect for a period of 60 consecutive days
thereafter; or
(c) the Provider shall commence a voluntary case under any applicable federal
or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the
Provider shall consent to or acquiesce in the entry of an order for relief in an involuntary
case under any such law, or the Provider shan consent to the appointment of or taking of
possession by a receiver, liquidator, trstee,. custodian, sequestrator (or similar offcial) of
the Provider or for any substatial part of its property, or the Provider shall make a
general assignment for the benefit of creditors, or the Provider shall fail generally or
admit in wnting its inability to pay its debts as such debts become due, or the Provider
shall take corprate action in contemplation or furterance of any of the foregoing.
"Rate" means any Daily Interest Rate, Weekly Interest Rate, Flexible Interest Rate or
Term Interest Rate.
"Rate Period" means any Daily Interest Rate Period, Weekly Interest Rate Period,
Flexible Interest Rate Penod or Term Interest Rate Period.
- 13 -Series 20lOA Trust Indenture
"Rating Category" means one of the genenc rating categones of either Mooy's or S&P,
without regard to any refinement or gradation of such rating category by a numerical modifier or
otherwise.
"Rebate Fund" means the trust fund by that name created pursuant to Section 6.01(c)
hereof.
"Record Date" means:
(a) with respect to any Interest Payment Date in respect of any Daily Interest
Rate Period, Weekly Interest Rate Period or Flexible Segment, the Business Day next
preceding such Interest Payment Date,
(b) with respect to any Interest Payment Date in respect of any Term Interest
Rate Period (except as provided in clause (d) below), the fifteenth day of the month
preceding such Interest Payment Date, and
(c) for any Interest Payment Date established pursuant to clause (d) of the
definition of "Interest Payment Date" in this Section 1.01 in respect of a Term Interest
Rate Period, the Business Day next preceding such Interest Payment Date.
"Redemption Date" means December 15,2010, the date upon which the Prior Bonds are
to be redeemed.
"Refunding" means the series of transactions whereby the Pror Bonds are refunded and
cancelled with the proceeds of the Bonds and other money provided by the Company.
"Registrar" means the Trustee or any successor Registrar appointed in accordance with
Section 10.22.
"Remarketing Agent" means any Person serving from time to time as Remarketing Agent
under this Indenture.
"Remarketing Agreement" means the remarketing agreement between the Company and
the Remarketing Agent pursuant to which the Rémarketing Agent agrees to act as Remarketing
Agent for the Bonds, as such remarketing agreement may be amended and supplemented from
time to time.
"Responsible Offcer" means, when used with respect to the Trustee, the president, any
vice president, any assistant vice president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, senior associate, associate or any other offcer of the Trustee within the
Prncipal Ofce of the Trustee (or any successor corprate trst offce) customarily performng
functions similar to those performed by the persons who at the time shall be such officers,
respectively, or to whom any corprate trust matter is referred at the Prncipal Office of the
Trustee because of such person's knowledge of and familarity with the particular subject and
having direct responsibility for the administration of this Indenture.
- 14-Series 2OIOA Trust Indenture
"Revenues" means all moneys pledged hereunder and paid or payable to the Trustee for
the account of the Issuer in accordance with the Agreement, the First Mortgage Bonds and the
Credit Facility, and all receipts credited under the provisions of this Indenture against such
payments; provided however, that "Revenues" shall not include moneys held by the Trustee in
the Rebate Fund or to pay the purchase pnce of Bonds subject to purchase pursuant to Article II
hereof.
"S&P" means Standard & Poor's Ratings Services, a Division of The McGraw-Hili
Companies, Inc., a corpration organized and existing under the laws of the State of New York,
its successors and assigns, and, if such corporation shall for any reason no longer pedorm the
functions of a secunties rating agency, "S&P" shall be deemed to refer to any other nationally
recognized secunties rating agency designated by the Company by notice to the Issuer, the
Trustee and the Remarketing Agent.
"Securities Depositories" The Depository Trust Company, Call Notification Department,
55 Water Street, 50th Roor, New York, New York 1001-00, Fax: [phone], -7233,
-7234, or -7235; or, in accordance with then-current guidelines of the Secunties and Exchange
Commission, such other addresses and/or such other secunties depositones, or no such
depositories, as the Company may designate in a certificate delivered to the Trustee.
"SlFMA Swap Index" means, on any date, a rate determined on the basis of the seven-
day high grade market index of tax-exempt vanable rate demand obligations, as produced by
Municipal Market Data, Inc., and published or made available by the Secunties Industr &
Financial Markets Association (formerly the Bond Market Association) ("SlFMA") or any
person acting in cooperation with or under the sponsorship of SIFM and effective from such
date; provided, however, that if such index is no longer provided by Municipal Market Data, Inc.
or its successor, the "SIFM Swap Index" shall mean such other reasonably comparable index
selected by the Remarketing Agent.
"State" means the State of Montana.
"Supplemental Indenture" means any indenture supplemental to this Indenture entered
into between the Issuer and the Trustee pursuant to the provisions of Section 12.01 or
Section 12.02 hereof.
"Tax Certifcate" means the Tax Exemption Certificate and Agreement relating to the
Bonds to be executed by the Company, the Issuer and the Trustee on the date of the initial
authentication and delivery of the Bonds, as amended and supplemented from time to time.
"Tax-Exempt" means, with respect to interest on any obligations of a state or local
government, including the Bonds, that such interest is excludable from in gross income of the
owners of such obligations for federal income tax purpses, except for interest on any such
obligations for any penod during which such obligations are owned by a person who is a
"sub!l.tantial user" of any facilities financed or refinanced with such obligations or a "related
person" within the meaning Section 103(b)(13) of the Internal Revenue Code of 1954, whether
or not such interest is includible as an item of tax preference or otherwise includible directly or
- 15 -Series 20lOA Trust Indenture
indirectly for purposes of calculating other tax liabilities, including any alternative minimum tax
or environmental tax under the Code.
"Term Interest Rate" means the interest rate on the Bonds established in accordance with
Section 2.05 hereof.
"Term Interest Rate Period" means each period of six months or more during which a
Term Interest Rate is in effect.
'Treasury Regulations" means the United States Treasury Regulations dealing with the
tax-exempt bond provisions of the Code.
"Trustee" means The Bank of New York Mellon Trust Company, N.A., as trustee under
this Indenture, and any successor Trustee appointed hereunder.
"Trust Estate" means all right, title and interest of the Issuer in and to the Agreement
(except for amounts payable to, and the rights of, the Issuer under Section 4.04, Section 4.06(a),
Section 5.03, Section 5.06, Section 5.07, Section 5.08 and Section 7.05 thereof, and, prior to an
Event of Default, the Issuer's right to give approvals and consents thereunder, and the Issuer's
right to receive notices, certificates, requests, requisitions, directions and other communications
thereunder), including, without limitation, all right, title and interest of the Issuer in the
Revenues, any Credit Facility and any Additional Collateral held by the Trustee, all moneys and
other obligations which are, from time to time, deposited or required to be deposited with or held
or required to be held by or on behalf of the Trustee in trst in the Bond Fund under any of the
provisions of this Indenture (except moneys or obligations deposited with or paid to the Trustee
for payment or redemption of Bonds that are deemed no longer Outstanding hereunder), the
Credit Facilty, and all other rights, title and interest which are subject to the lien of this
Indenture; provided, however, that the "Trust Estate" shall not include (a) moneys held by the
Trustee in the Rebate Fund or to pay the purchase price of Bonds subject to purchase pursuant to
Article II hereof or (b) the Plant, the Pollution Control Facilities, the Project or any part thereof.
"Wall Street Journal" means The Wall Street Journal or any other newspaper or journal
printed in the English language and customarily published on each business day devoted to
financial news and selected by the Trustee, whose decision shall be finaL.
"Weekly Interest Rate" means the interest rate on the Bonds established in accordance
with Section 2.04 hereof.
"Weekly Interest Rate Period" means each penod during which a Weekly Interest Rate is
in effect.
Section 1.02. Rules of Construction. Unless the context otherwise requires:
(a) an accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles;
- 16-Series 20lOA Trust Indenture
(b) references to Artcles and Sections are to the Articles and Sections of this
Indenture or the Agreement, as the case may be;
(c) words importng the singular number shall include the plural number and
vice versa and words importing the masculine shall include the feminine and vice versa;
and
(d) the headings and Table of Contents herein are solely for convenience of
reference and shall not constitute a par of this Indenture nor shall they affect its
meanings, construction or effect.
ARTICLE II
THE BONDS
Sectin 2.01. Authoriion an Terms of Bonds. (a) There is hereby authonzed and
created under this Indenture an issue of bonds designated as City of Forsyth, Montana, Pollution
Control Revenue Refunding Bonds (Avista Corporation Colstnp Project) Senes 2010A. The
total aggregate principal amount of Bonds that may be issued and Outstanding under this
Indenture is expressly limited to $66,700,00 exclusive of Bonds executed and authenticated as
provided in Section 2.07 hereof; provided however, that no Bonds shall be delivered hereunder
until the Trustee receives a request and authorization of the Issuer signed by the Executive
Officer to authenticate and deliver the pnncipal amount of the Bonds therein specified to the
purchaser or purchasers therein identified upon payment to the Prior Trustee, for the account of
the Issuer, of the sum specified in such request and authonzation.
(b) The Bonds shall be issued as registered Bonds, without coupons, in Authonzed
Denominations and shall all be dated as of the Issue Date. The Bonds shall mature, subject to
pnor redemption as provided in Artcle iv hereof, upon the terms and conditions hereinafter set
forth, on the Maturity Date. The Bonds shall bear interest at the rate or rates determined as
provided in this Article II.
(c) The Bonds shall be numbered consecutively from I upward. Each Bond shall bear
interest from the Interest Payment Date next preceding the date of registration and authentication
thereof unless it is registered and authenticated on or prior to the first Interest Payment Date, in
which event it shall bear interest from the Issue Date; provided, however, that if, as shown by the
records of the Paying Agent, interest on the Bonds shall be in default, Bonds issued in exchange
for Bonds surrendered for registration of transfer or exchange shaH bear interest from the last
date to which interest has been paid in full or duly provided for on the Bonds, or, if no interest
has been paid or duly provided for on the Bonds, from the Issue Date. Payment of the interest on
any Bond shall be made to the person appeanng on the bond registration boks of the Registrar
as the registered Owner thereof on the Record Date, such interest to be paid by the Paying Agent
to such registered Owner, as follows:
- 17 -Series 20IOA Trust Indenture
(1) in respect of any Bond which is registered in the book-entry system
pursuant to Section 2.15 hereof, in immediately available funds by no later than
2:30 p.m., New York, New York time, and
(2) in respect of any Bond which is not registered in the book-entry system
pursuant to Section 2.15 hereof, (i) by bank check mailed by first-class mail on the
Interest Payment Date, to such Owner's address as it appears on the registration books of
the Registrar or at such other address as has been furnished to the Registrar in wnting by
such Owner, or (ii) during any Rate Period other than a Term Interest Rate Period, in
immediately available funds on the Interest Payment Date (by wire transfer or by deposit
to the account of the Owner of any such Bond if such account is maintained with the
Paying Agent), but in respect of any Owner of Bonds during a Daily Interest Rate Penod,
a Weekly Interest Rate Period or a Aexible Interest Rate Period, only to any Owner
which owns Bonds in an aggregate principal amount of at least $1,00,00 on the Record
Date, according to the written instructions given by such Owner to the Paying Agent or,
if no such instructions have been provided as of the Record Date, by bank check mailed
by first-class mail on the Interest Payment Date to the Owner at such Owner's address as
it appears as of the Record Date on the registration books of the Registrar, except, in each
case, that, if and to the extent that there shall be a default in the payment of the interest
due on such Interest Payment Date, such defaulted interest shall be paid to the Owners in
whose name any such Bonds are registered as of a special record date to be fixed by the
Trustee, notice of which shall be given to such Owners not less than ten (10) days prior
thereto.
Both the principal of and premium, if any, on the Bonds shall be payable upon surrender
thereof in lawful money of the United States of America at the Prncipal Office of the Paying
Agent. Notwithstanding the foregoing, interest on any Bond bearing a Aexible Interest Rate and
not registered in the book-entry system pursuant to Section 2.15 hereof shall be paid only upon
presentation to the Trustee of the Bond on which such payment is due.
Sectin 2.02. Interest Rates and Rate Peris. (a) General. The Bonds shall bear
interest from and including the Issue Date until final payment of the principal or redemption
price thereof shall have been made or provided for in accordance with the provisions hereof,
whether at maturity, upon redemption or otherwise, at the lesser of (A) the Maximum Interest
Rate or (B) the interest rate or rates determined as provided in this Article II. Such rate or rates
shall be effective for the periods set forth in this Article II. During any Rate Period other than a
Term Interest Rate Period, interest on the Bonds shall be computed upon the basis of a 365- or
366-day year, as applicable, for the number of days actually elapsed. During any Term Interest
Rate Period, interest on the Bonds shall be computed upon the basis of a 360-day year, consisting
of twelve 30-day months. Notwithstanding any other provision of this Indenture, it shall not be
required that all Bonds bear interest at the same rate, provided that only one Rate Period may
apply to the Bonds. Not later than 11:15 a.m. (New York, New York time) on the Business Day
immediately following the day on which there has been a change in the rate of interest applicable
to the Bonds, the Remarketing Agent shall give notice of such change to the Trustee by facsimile
or electronic mail. The Trustee hereby agrees to give telephonic notice to the Company,
promptly confirmed in writing (which may be by electronic mail or facsimile), on each Record
- 18-Series 2010A Trust Indenture
Date of the amount of interest to be due and payable on the Bonds on the next succeeding
Interest Payment Date.
(b) Rate Periods. The term of the Bonds shaH be divided into consecutive Rate Penods
dunng which the Bonds shall bear interest at the Daily Interest Rate, Weekly Interest Rate, Term
Interest Rate or at Aexible Interest Rates. Dunng the initial Rate Period, the Bonds shall bear
interest at a Term Interest Rate.
(c) Inital Rate Period. The Bonds shall initially bear interest at the Weekly Interest
Rate of 1.50%. Thereafter, the Bonds shall bear interest as provided herein.
(d) Determination Conclusive. The determination of each Aexible Interest Rate, Daily
Interest Rate, Weekly Interest Rate and Term Interest Rate and each Aexible Segment by the
Remarketing Agent shall be conclusive and binding upon such parties, the Trustee, the Paying
Agent, the Issuer, the Company, the Owners of the Bonds and the Provider.
(e) Adjustment or Continuation of Rate Period. At any time, the Company, by written
notice to the Issuer, the Trustee, the Paying Agent, the Provider and the Remarketing Agent may,
subject to Section 2.02(g), elect that the Bonds shall bear interest at a different Rate or, in the
case of a Term Interest Rate Penod. shall continue to bear interest at a Term Interest Rate. Such
notice (A) shall specify the effective date of such adjustment to a different Rate, which shall be
(1) a Business Day not earlier than the fifteenth day following the fifth Business Day after the
date of receipt by the Trustee and the Paying Agent of such notice (or the fifteenth day foHowing
such shorter period after the date of such receipt as shall be acceptable to the Trustee). and (2) a
day on which the Bonds would be permitted to be redeemed at the option of the Company
pursuant to Section 4.02(b) hereof; provided, however, that if prior to the Company's mailng of
notice of such election, any Bonds shall have been caHed for redemption and such redemption
shall not have theretofore been effected. the effective date of the new Rate Penod shall not
precede such redemption date; and (B) if the adjustment is (1) from a Term Interest Rate Penod
having a duration in excess of one year or (2) to a Term Interest Rate Period, unless such Term
Interest Rate Penod immediately succeeds a Term Interest Rate Penod of the same duration and
is subject to the same optional redemption nghts under Section 4.02(b)(iii) hereof. shall be
accompanied by a Favorable Opinion of Bond Counsel with respect to such adjustment; provided
that, in the case of an adjustment to a Aexible Interest Rate Period. the Favorable Opinion of
Bond Counsel descnbed in clause (B) above, if required. shall be reaffrmed as of the effective
date of such adjustment.
(f) Notice of Adjustment or Continuation of Rate Period. The Trustee shall give notice
by Mail of an adjustment to a different Rate Penod or the continuation of a Term Interest Rate
Period to the Owners not less than 15 days prior to the effective date of such Rate Penod. Such
notice shall state (A) that the interest rate on the Bonds will be adjusted to a different Rate or, in
the case of a Term Interest Rate Penod, wil continue to bear interest at a Term Interest Rate
(subject to the Company's abilty to rescind its election as provided in Section 2,(17 hereof), (B)
the effective date of such adjustment or continuation, (C) that such Bonds are subject to
mandatory purchase on such effective date. (D) the procedures for such mandatory purchase, (E)
the purchase pnce of such Bonds on such effective date (expressed as a percentage of the
- 19-Series 2010A Trust Indenture
principal amount thereof), and (F) that the Owners of such Bonds do not have the right to retain
their Bonds on such effective date.
(g) Adjustments Subject to Compliance With Credit Facility Agreement. The Bonds
shall not be adjusted from one Rate Period to a different Rate Period unless any applicable
conditions precedent to such adjustment specified in the Credit Facilìty Agreement (unless a
Provider Default shall have occurred and be continuing) have been satisfied.
Section 2.03. Daily Interest Rale. During each Daily Interest Rate Period, the Bonds
shall . bear interest at the Daily Interest Rate determined by the Remarketing Agent on each
Business Day for such Business Day. . The Daily Interest Rate shall be the rate determined by the
Remarketing Agent (based on an examination of Tax-Exempt obligations comparable to the
Bonds known by the Remarketing Agent to have been priced or traded under then-prevailing
market conditions) to be the lowest rate which would enable the Remarketing Agent to sell the
Bonds on the effective date of such rate at a price (without regard to accrued interest) equal to
100% of the principal amount thereof. If the Remarketing Agent shall not have determined a
DaiJy Interest Rate for any day by 9:30 a.m., New York, New York time, the DaiJy Interest Rate
for such day shall be 100% of the most recent SIFMA Swap Index. The Remarketing Agent
shall notify the Company, the Trustee, the Provider and the Paying Agent of each Daily Interest
Rate on the date of the determination thereof by written notice communicated by electronic mail,
by facsimile or by other means acceptable to the Company, the Trustee, the Provider and the
Paying Agent.
Sectin 2.04. Weekly Interest Rale. During each Weekly Interest Rate Period, the Bonds
shall bear interest at the Weekly Interest Rate determined by the Remarketing Agent no later
than the first day of such Weekly Interest Rate Period and thereafter no later than Tuesday of
each week during such Weekly Interest Rate Period, unless any such Tuesday shall not be a
Business Day, in which event the Weekly Interest Rate shall be determined by the Remarketing
Agent no later than the Business Day next preceding such Tuesday. The Weekly Interest Rate
shall be the rate determined by the Remarketing Agent (based on an examination of Tax-Exempt
obligations comparable to the Bonds known by the Remarketing Agent to have been priced or
traded under then prevailing market conditions) to be the lowest rate which would enable the
Remarketing Agent to sell the Bonds on the effective date of such rate at a price (without regard
to accrued interest) equal to 100% of the principal amount thereof. If the Remarketing Agent
shall not have determined a Weekly Interest Rate for any period, the Weekly Interest Rate shall
be 110% of the most recent SIFMA Swap Index. The first Weekly Interest Rate determined for
each Weekly Interest Rate Period shall apply to the period commencing on the first day of such
Weekly Interest Rate Period and ending on the next succeeding Tuesday. Thereafter, each
Weekly Interest Rate shall apply to the period commencing on each Wednesday and ending on
the next succeeding Tuesday, unless such Weekly Interest Rate Period shall end on a day other
than Tuesday, in which event the last Weekly Interest Rate for such Weekly Interest Rate Period
shall apply to the period commencing on the Wednesday preceding the last day of such Weekly
Interest Rate Period and ending on such last day. The Remarketing Agent shall notify the
Company, the Trustee, the Provider and the Paying Agent of each Weekly Interest Rate on the
date of the determination thereof by written notice communicated by electronic maiJ. by
facsimile or by other means acceptable to the Company, the Trustee, and the Paying Agent.
- 20-Series iOlOA Trust Indenture
Section 2.05. Term Interest Rate. (a) Determination of Term Interest Rate. During each
Term Interest Rate Period, the Bonds shall bear interest at the Term Interest Rate determined by
the Remarketing Agent on a Business Day selected by the Remarketing Agent, but not more than
60 days prior to and not later than the effective date of such Term Interest Rate Period. The
Term Interest Rate shall be the rate determined by the Remarketing Agent on such date as being
the lowest rate (based on an examination of Tax-Exempt obligations comparable to the Bonds
known by the Remarketing Agent to have been priced or traded under then prevailing market
conditions) which would enable the Remarketing Agent to sell the Bonds on the effective date of
such Term Interest Rate Period at a price (without regard to accrued interest) equal to 100% of
the principal amount thereof, provided however, that if, for any reason, a Term Interest Rate for
any Term Interest Rate Period shall not be determined or become effective, then (A) in the event
the then-current Term Interest Rate Period is for one year or less, the Rate Penod for the Bonds
shall automatically adjust to a Daily Interest Rate Period and (B) in the event the current Term
Interest Rate Period is for more than one year, the Rate Period for the Bonds shall automatically
adjust to a Term Interest Rate Period of one year and one day; provided, however, that if the last
day of any successive Term Interest Rate Period shall not be a day immediately preceding a
Business Day, then such successive Term Interest Rate Penod shall end on the first day
immediately preceding the Business Day next succeeding such day or, if such Term Interest Rate
Penod would end after the day prior to the final maturity date of the Bonds, the next succeeding
Rate Period shall be a Term Interest Rate Period ending on the day prior to the final matunty
date of the Bonds; provided Jurther that in the case of clause (B) above, if the Company delivers
to the Trustee a Favorable Opinion of Bond Counsel prior to the end of the then-effective Term
Interest Rate Period, the Rate Period for the Bonds wil adjust to a Daily Interest Rate Period. If
the Daily Interest Rate for the first day of a Daily Interest Rate Period described in clause (A)
above is not determined as provided in Section 2.03 hereof the Daily Interest Rate for the first
day of such Daily Interest Rate Penod shall be 110% of the most recent SIFM Swap Index. If
a Term Interest Rate for any such Term Interest Rate Period described in clause (B) above is not
determined as described in the first sentence of this Section 2.05(a), the Term Interest Rate for
such Term Interest Rate Period shall be 110% of the most recent One-Year Note Index
theretofore published in The Bond Buyer (or, if The Bond Buyer is no longer published or no
longer publishes the One-Year Note Index, the one-year note index contained in the publication
determined by the Remarketing Agent, or, if the Remarketing Agent is the Trustee, determined
by the Company, as the most comparable to The Bond Buyer). The Remarketing Agent shall
notify the Company, the Trustee, the Provider and the Paying Agent of each Term Interest Rate
on the date of the determnation thereof by written notice communicated by electronic mail, by
facsimile or by other means acceptable to the Company, the Trustee, the Provider and the Paying
Agent.
(b) Automatic Adjustment to Daily Interest Rate Period or Continuation of Term
Interest Rate Period. If, by 15 days prior to the end of the then-current Term Interest Rate
Period, the Trustee shall not have received notice of the Company's election that the Bonds shall
bear interest at a Daily Interest Rate, a Weekly Interest Rate, a Term Interest Rate or a Flexible
Interest Rate, (A) in the event the then-current Term Interest Rate Period is for one year or less,
the Rate Period for the Bonds shall automatically adjust to a Daily Interest Rate Penod and (B)
in the event the current Term Interest Rate Period is for more than one year, the Rate Penod for
the Bonds shall automatically adjust to a Term Interest Rate Period of one year and one day,
- 21-Series 20lOA Trust Indenture
provided however, that if the last day of any successive Term Interest Rate Period shall not be a
day immediately preceding a Business Day, then such successive Term Interest Rate Period shall
end on the first day immediately preceding the Business Day next succeeding such day or, if
such Term Interest Rate Period would end after the day prior to the Matunty Date, the next
succeeding Rate Period shall be a Term Interest Rate Period ending on the day prior to the
Maturity Date; provided however, that in the case of clause (B) above, if the Company delivers
to the Trustee a Favorable Opinion of Bond Counsel prior to the end of the then-effective Term
Interest Rate Penod, the Rate Penod for the Bonds wil adjust to a Daily Interest Rate Period. If
the Daily Interest Rate for the first day of a Daily Interest Rate Period described. in clause (A)
above is not detennned as provided in Section 2.03(a) hereof, the Daily Interest Rate for the first
day of such Daily Interest Rate Period shall be 110% of the most recent SIFM Swap Index. If
a Term Interest Rate for any such Term Interest Rate Period described in clause (B) above is not
determined as descnbed in the first sentence of this Section 2.05(a), the Term Interest Rate for
such Term Interest Rate Period shall be 110% of the most recent One-Year Note Index
theretofore published in The Bond Buyer (or, if The Bond Buyer is no longer published or no
longer publishes the One-Year Note Index, the one-year note index contained in the publication
determined by the Remarketing Agent, or, if the Remarketing Agent is the Trustee, determined
by the Company, as the most comparable to The Bond Buyer).
(c) Successive Term interest Rate Periods; Alternate Optional Redemption Provisions.
At the same time that the Company elects to have the Bonds bear interest at a Term Interest Rate
or to continue to bear interest at a Term Interest Rate, the Company may also elect that such
Term Interest Rate Period shall be automatically renewed for successive Term Interest Rate
Periods each having the same duration as the Term Interest Rate Period so specified; provided
however, that such election must be accompanied by a Favorable Opinion of Bond Counsel with
respect to such continuing automatic renewals of such Term Interest Rate Period. If such
election is made, no Favorable Opinion of Bond Counsel shall be required in connection with the
commencement of each successive Term Interest Rate Penod determined in accordance with
such election. Further, at the same time that the Company elects to have the Bonds bear interest
at a Term Interest Rate or continue to bear interest at a Term Interest Rate, subject to the
provisions of Section 4.02(c) hereof the Company may also specify to the Trustee optional
redemption prices and periods different from those set out in Section 4.02 hereof during the
Term Interest Rate Period(s) with respect to which such election is made.
(d) Consecutive Term Interest Rate Periods. At the time the Company so elects an
adjustment to or continuation of a Term Interest Rate Period, the Company may specify two or
more consecutive Term Interest Rate Periods.
Sectin 2.06. Flexible Interest Rate. (a) Determination of Flexible Segments and
Flexible Interest Rates. During each Aexible Interest Rate Period, each Bond shall bear interest
during each Aexible Segment for such Bond at the Aexible Interest Rate for such Bond as
described herein. Each Aexible Segment and Aexible Interest Rate for each Bond shall be the
Aexible Segment and Aexible Interest Rate determined by the Remarketing Agent. Each
Aexible Segment for any Bond shall be a period of not less than one nor more than 270 days
(subject to any limitations set forth in the Remarketing Agreement), determined by the
Remarketing Agent to be, in its judgment, the period which, together with all other Aexible
- 22-Series 20lOA Trust Indenture
Segments for the Bonds then outstanding, is likely to result in the lowest overall net interest
expense on the Bonds; provided however, that (A) any such Bond purchased on behalf of the
Company and remaining unsold in the hands of the Remarketing Agent as of the close of
business on the effective date of the Aexible Segment for such Bond shall have a Aexible
Segment of one day or, if such Aexible Segment would not end on a day immediately preceding
a Business Day, a Aexible Segment of more than one day ending on the day immediately
preceding the next Business Day and (B) each Aexible Segment shall end on a day which
immediately precedes a Business Day and no Aexible Segment shall extend beyond the final
maturity date of the Bonds.
The Aexible Interest Rate for each flexible Segment for each Bond shall be the rate
determined by the Remarketing Agent (based on an examination of Tax-Exempt obligations
comparable to the Bonds known by the Remarketing Agent to have been pnced or traded under
then prevailing market conditions) no later than the first day of such flexible Segment (and in
the case of a Aexible Segment of one day, no later than 12:30 p.m. New York. New York time,
on such date) to be the lowest rate which would enable the Remarketing Agent to sell the Bonds
on the effective date of such rate at a price (without regard to accrued interest) equal to 100% of
the principal amount thereof. If a flexible Segment or a flexible Interest Rate for a flexible
Segment is not determined or effective, the flexible Segment for such Bond shall be a Aexible
Segment of one day, and the interest rate for such flexible Segment of one day shall be 110% of
the most recent SIFM Swap Index. The Remarketing Agent shall notify the Company. the
Trustee, the Provider and the Paying Agent of each flexible Interest Rate and flexible Segment
on the date of the determination thereof by written notice communicated by electronic mail. by
facsimile or by other means acceptable to the Company, the Trustee, the Provider and the Paying
Agent.
(b) Special Provisions for an Adjustment From Flexible Interest Rates. If at any time
during a flexible Interest Rate Period. the Company elects, pursuant to Section 2.02(e) that the
Bonds shall no longer bear interest at flexible Interest Rates and shall instead bear interest as
otherwise permitted under this Indenture, the Company shall notify the Issuer, the Trustee. the
Paying Agent, the Provider and the Remarketing Agent of such election by Mail and shall
instruct the Remarketing Agent to determine flexible Segments of such duration that, as soon as
possible. all flexible Segments shall end on the same date, not earlier than the day that would
permit the notice required by Sections 2.02(f) to be given, and such date shall be the last day of
the then current flexible Interest Rate Period. Upon the establishment of such flexible
Segments, the day next succeeding the last day of all such Aexible Segments shall be the
effective date of the Rate Period elected by the Company. The Remarketing Agent, promptly
upon the determination thereof, shall give written notice of such last day and such effective dates
to the Issuer. the Company, the Trustee and the Paying Agent.
Sectin 2.07. Rescission of Election. Notwithstanding anything herein to the contrary,
the Company may rescind any election by it to adjust to or, in the case of a Term Interest Rate
Period, continue a Rate Period pursuant to Section 2.02(e) hereof prior to the effective date of
such adjustment or continuation, by giving written notice thereof to the Issuer, the Trustee, the
Paying Agent. the Provider and the Remarketing Agent prior to such effective date. At the time
that the Compay giyes notice of rescission. it may also elect in such notice to continue the Rate
- 23-Series 20lOA Trust Indenture
Period then in effect; provided however, that if the Rate Period then in effect is a Term Interest
Rate Period, the subsequent Term Interest Rate Penod shall not be of a different duration than
the Term Interest Rate Period then in effect unless the Company provides to the Trustee a
Favorable Opinion of Bond Counsel prior to the expiration of the then-current Term Interest Rate
Period. If the Trustee receives notice of such rescission prior to the time the Trustee has given
notice to the Owners of the Bonds of the change in or continuation of Rate Periods pursuant to
Section 2.02(f) hereof, then such notice of change in or continuation of Rate Periods shall be of
no force and effect and shall not be given to the Owners. If the Trustee receives notice of such
rescission after the Trustee has given notice to the Owners of the Bonds pursuant to
Section 2.02(f) hereof of an adjustment from any Rate Period other than a Term Interest Rate
Period in excess of one year or if an attempted adjustment from one Rate Period (other than a
Term Interest Rate Period in excess of one year) to another Rate Period does not become
effective for any other reason, and if the Company does not elect to continue the Rate Period
then in effect, then the Rate Period for the Bonds shall automatically adjust to or continue in a
Daily Interest Rate Penod and the Trustee shall promptly give notice thereof to the Owners of
the Bonds. If the Trustee receives notice of such rescission after the Trustee has given notice to
the Owners of the Bonds pursuant to Section 2.02(f) hereof of an adjustment from a Term
Interest Rate Period in excess of one year to another Rate Period (including a Term Interest Rate
Period of a different duration), or if an attempted adjustment from a Term Interest Rate Period in
excess of one year to another Rate Period (including a Term Interest Rate Period of a different
duration) does not become effective for any reason and if the Company does not elect to continue
the Rate Period then in effect, then the Rate Period for the Bonds shall continue to be a Term
Interest Rate Penod of the same duration as the immediately preceding Term Interest Rate
Period, subject to the second proviso contained in Section 2.05(a); provided that if the Company
delivers to the Trustee a Favorable Opinion of Bond Counsel prior to the end of the then-
effective Term Interest Rate Period, the Rate Period for the Bonds shall be as directed by the
Company in writing. If a Daily Interest Rate for the first day of any Daily Interest Rate Period to
which a Rate Period is adjusted under this Section 2.07 is not determined as provided in
Section 2.03 hereof, the Daily Interest Rate for the first day of such Daily Interest Rate Penod
shall be 110% of the most recent SIFMA Swap Index. The Trustee shall promptly give wntten
notice of each such automatic adjustment to a Rate Period pursuant to this Section 2.07 to the
Owners in the form provided in Section 2.02(f) hereof.
Notwithstanding the rescission by the Company of any notice to adjust to or from or
continue a Rate Period, if notice has been given to Owners pursuant to Section 2.02(f), the Bonds
shall be subject to mandatory purchase as specified in such notice.
Section 2.08. Form of Bonds. The Bonds and the certficate of authentication to be
executed thereon shall be in substantially the form attched hereto as Exhibit A, with suchappropriate variations, omissions and insertions as are permitted or required by this Indenture.
Upon adjustment to a Term Interest Rate Period, the form of Bond may include a summary of the
mandatory and optional redemption provisions to apply to the Bonds during such Term Interest
Rate Period, or a statement to the effect that the Bonds wil not be optionally redeemed during
such Term Interest Rate Period; provided that the Registrar shall not authenticate such a revised
Bond form pnor to receiving a Favorable Opinion of Bond Counsel that such Bond form satisfies
- 24-Series 20lOA Trusi Indenlure
the requirements of the Act and of this Indenture and that authentication thereof wil not
adversely affect the Tax-Exempt status of the Bonds.
Sectin 2.09. Execution of Bonds. The Bonds shall be signed in the name and on behalf
of the Issuer with the manual or facsimile signature of its Mayor and attested by the manual or
facsimile signature of the City Clerk. The Bonds shall then be delivered to the Registrar for
authentication by it. In case any officer who shall have signed any of the Bonds shall cease to be
such offcer before the Bonds so signed or attested shall have been authenticated or delivered by
the Registrar or issued by the Issuer, such Bonds may nevertheless be authenticated, delivered
and issued and, upon such authentication, delivery and issuance, shan be as binding upon the
Issuer as though those who signed and attested the same had continued to be such officers of the
Issuer. Also, any Bond may be signed on behalf of the Issuer by such persons as on the actual
date of the execution of such Bond shall be the proper officers although on the nominal date of
such Bond any such person shall not have been such officer.
Only such of the Bonds as shall bear thereon a certificate of authentication in the form set
forth in Exhibit A hereto, manually executed by an authonzed signatory of the Registrar, shall be
valid or obligatory for any purpse or entitled to the benefits of this Indenture, and such
certificate of the Registrar shall be conclusive evidence that the Bonds so authenticated have
been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture.
Upon authentication of any Bond, the Registrar shall set forth on such Bond (1) the date
of such authentication and (2) in the case of a Bond beanng interest at a Aexible Interest Rate
and not registered in the bok-entry system pursuant to Section 2.15 hereof, such Aexible
Interest Rate, the last day of the applicable Aexible Segment, the number of days compnsing
such Aexible Segment and the amount of interest to accrue dunng such Aexible Segment.
Sectin2JO. Transfer and Exchange of Bonds. Registration of any Bond may, in
accordance with the terms of this Indenture, be transferred at the Prncipal Office of the
Registrar, upon the books of the Registrar required to be kept pursuant to the provisions of
Section 2.11 hereof, by the Person in whose name it is registered, in person or by its attorney
duly authonzed in wnting, upon surrender of such Bond for cancellation, accompanied by a
wntten instrument of transfer in a form approved by the Registrar, duly executed. The Registrar
shall require the payment by the Owner of the Bond requesting such transfer of any tax or other
governmental charge required to be paid and there shall be no other charge to any Owners for
any such transfer. Whenever any Bond shall be surrendered for registration of transfer, the
Issuer shall execute and the Registrar shall authenticate and deliver a new Bond or Bonds of the
same tenor and of Authonzed Denominations. Except with respect to Bonds purchased pursuant
to Sections 3.01 and 3.02 hereof, no registration of transfer of Bonds shall be required to be
made for a period of fifteen (15) days next preceding the date on which the Trustee Mails any
notice of redemption, nor shall any registration of transfer of Bonds called for redemption be
required, except the unredeemed portion of any Bond being redeemed in part.
Bonds may be exchanged at the Principal Office of the Registrar for a like aggregate
pnncipal amount of Bonds of the same tenor and of Authorized Denominations. The Registrar
shall require the payment by the Owner of the Bond requesting such exchange of any tax or other
- 25-Senes 20lOA Trust Indenture
governmental charge required to be paid with respect to such exchange, and there shaH be no
other charge to any Owners for any such exchange. Except with respect to Bonds purchased
pursuant to Section 3.01 and Section 3.02 hereof, no exchange of Bonds shall be required to be
made for a period of fifteen (15) days next preceding the date on which the Trustee provides
notice of redemption in accordance with Section 4.05 hereof, nor shall any exchange of Bonds
called for redemption be required, except the unredeemed portion of any Bond being redeemed
in par.
The Issuer, the Registrar, the Trustee and any agent of the Issuer, the Registrar or the
Trustee may treat the person in whose name the Bond is registered as the owner thereof for the
purpse of receiving payment as herein provided and for all other purpses, whether or not the
Bond be overdue, and neither the Issuer, the Registrar, the Trustee, any paying agent nor any
such agent shall be affected by notice to the contrary.
Section 2.11. Bond Register. The Registrar wil keep or cause to be kept at its Pnncipal
Office suffcient books for the registration and the registration of transfer of the Bonds, which
shall at all times, during regular business hours, be open to inspection by the Issuer, the Trustee,
the Provider, the Remarketing Agent and the Company; and, upon presentation for such purpose,
the Registrar shall under such reasonable regulations as it may prescribe, register the transfer or
cause to be registered the transfer, on said boks, Bonds as hereinbefore provided.
Section 2.12. Bonds Mutilaed, Lost, Destroyed or Stolen. If any Bond shall become
mutilated, the Issuer, upon the request and at the expense of the Owner of said Bond, shall
execute, and the Registrar shall thereupon authenticate and deliver, a new Bond of like tenor and
number in exchange and substitution for the Bond so mutilated and provision of indemnity
satisfactory to the Register, but only upon surrender to the Registrar of the Bond so mutilated.
Every mutilated Bond so surrendered to the Registrar shall be canceled by it and delivered to the
Company. If any Bond issued hereunder shall be lost, destroyed or stolen, evidence of such loss,
destrction or theft may be submitted to the Issuer, the Company and the Registrar, and if such
evidence shall be satisfactory to them and indemnity satisfactory to them shall be given, the
Issuer, at the expense of the Owner, shall execute, and the Registrar shall thereupon authenticate
and deliver, a new Bond of like tenor in lieu of and in substitution for the Bond so lost, destroyed
or stolen (or if any such Bond shall have matured or shall be about to mature, instead of issuing a
substitute Bond the Registrar may pay the same without surrender thereof). The Issuer may
require payment of a reasonable fee for each new Bond issued under this Section and payment of
the expenses which may be incurred by the Issuer and the Registrar. Any Bond issued under the
provisions of this Section in lieu of any Bond aHeged to be lost, destroyed or stolen shall
constitute an original additional contractual obligation on the part of the Issuer whether or not the
Bond so alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be
equally and proportonately entitled to the benefits of this Indenture with all other Bonds secured
by this Indenture.
To the extent permitted by law, the provisions of this Section are exclusive and shaH
preclude all other rights and remedies with respect to the replacement or payment of mutilated,
lost, destroyed or stolen Bonds.
- 26-Series 2010A Trust Indenture
Sectin 2.13. Bonds; Limited Obligatons. The Bonds, together with premium, if any,
and interest thereon, shall be limited and not general obligations of the Issuer not constituting or
giving rise to a pecuniary liabilty of the Issuer nor any charge against its general credit or taxing
powers nor an indebtedness of or a loan of credit thereof within the meaning of any provision or
limitation of the State Constitution or laws, shall be payable solely from the Revenues and other
moneys pledged therefor under this Indenture, and shall be a valid claim of the respective
Owners thereof only against the Bond Fund, the Revenues and other moneys held by the Trustee
as part of the Trust Estte. The Issuer shall not be obligated to pay the purchase price of Bonds
from any source.
THE BONDS SHALL NOT BE DEEMED TO CONSTITUTE A DEBT, UABILITY OR GENERAL
OBUGATION OF THE ISSUER, THE STATE OR OF ANY POLITICAL SUBDIVISION THEREOF, OR A
PLEDGE OF THE FAITH AND CREDIT OF THE ISSUER, THE STATE OR OF ANY SUCH POUTICAL
SUBDIVISION, BUT SHALL BE PAY ABLE SOLELY FROM THE REVENUES AND PROCEEDS PROVIDED
THEREFOR. THE ISSUER SHALL NOT BE OBUGATED TO PAY THE SAME NOR INTEREST THEREON
EXCEPT FROM THE REVENUES AND PROCEEDS PLEDGED THEREFOR, AND NEITHER THE FAITH
AND CREDIT NOR THE TAXING POWER OF THE ISSUER, THE STATE OR OF ANY POUTICAL
SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR THE INTEREST
ON THE BONDS.
No recourse shall be had for the payment of the principal of, or premium, if any, or
interest on any of the Bonds or for any claim based thereon or upon any obligation, covenant or
agreement contained in this Indenture, the Bonds, the Agreement or any other related documents,
against any past, present or future officer, elected official agent or employee of the Issuer, or any
incorporator, officer, director or member of any successor corpration, as such, either directly or
through the Issuer or any successor corpration, under any rule of law or equity, statute or
constitution or by the enforcement of any assessment or penalty or otherwise, and all such
liabilty of any such incorprator, officer, director or member as such is hereby expressly waived
and released as a condition of and in consideration for the execution of this Indenture and the
issuance of any of the Bonds.
Section 2.14. Disposal of Bonds. Upon payment of the principal of, premium, if any, and
interest represented thereby or transfer or exchange pursuant to Section 2.10 hereof or,
replacement pursuant to Section 2.12 hereof, any Bond shall be canceled and such Bond shall be
disposed of by the Registrar in accordance with its customary procedures and the Registrar shall
provide evidence satisfactory to the Company of such cancellation and disposition.
Section 2.15. Book-Entr System. (a) Unless otherwise determined by the Issuer, the
Bonds shall be issued in the form of a single certificated fully-registered Bond, registered in the
name of Cede & Co., as nominee of DTC, or any successor nominee (the "Nominee"). The
actual owners of the Bonds (the "Beneficial Owners") wil not receive physical delivery of Bond
certficates except as provided herein. Except as provided in paragraph (d) below, all of the
outstanding Bonds sháll be so registered in the registration boks kept by the Registrar, and the
provisions of this Section shall apply thereto.
- 27-Series 20lOA Trust IndenLure
(b) With respect to Bonds registered on the registration books kept by the Registrar in
the name of the Nominee, the Issuer, the Company, the Paying Agent, the Registrar, the Trustee
and the Remarketing Agent shall have no responsibilty or obligation to any DTC Partcipant or
the Beneficial Owners. Without limiting the immediately preceding sentence, the Issuer, the
Company, the Paying Agent, the Registrar, the Trustee and the Remarketing Agent shall have no
responsibility or obligation to DTC, any DTC Participant or any Beneficial Owner with respect
to (1) the accuracy of the records of DTC, the Nominee or any DTC Participant with respect to
any ownership interest in the Bonds, (2) the delivery by DTC or any DTC Participant of any
notice with respect to the Bonds, including any notice of redemption, or (3) the payment to any
DTC Parcipant or Beneficial Owner of any amount with respect to pnncipal or purchase pnce
of, or premium, if any, or interest on, the Bonds. The Issuer, the Company, the Paying Agent,
the Registrar, the Trustee and the Remarketing Agent may treat and consider the person in whose
name each Bond is registered in the registration books kept by the Registrar as the owner and
absolute owner of such Bond for the purpose of payment of principal purchase pnce, premium
and interest with respect to such Bond, for the purpse of giving notices of redemption and other
matters with respect to such Bond, for the purpose of registenng transfers with respect to such
Bond, and for aH other purpses whatsoever. The Paying Agent shall pay all pnncipal of and
premium if any, and interest on, the Bonds only to or upon the order of the respective Owners, as
shown in the registrtion books kept by the Registrar, or their respective attorneys duly
authonzed in wnting, and all such payments shaH be valid and effective to fully satisfy and
discharge the Issuer's obligations with respect to payment of pnncipal of, and premium, if any,
and interest on, the Bonds to the extent of the sum or sums so paid. No person other than an
Owner, as shown in the registration books kept by the Registrar, shall receive a certificated Bond
evidencing the obligation of the Issuer to make payments of principal, premium, if any, and
interest pursuant to this Indenture.
(c) The Issuer, the Paying Agent, the Remarketing Agent and the Trustee shall
execute and deliver to DTC a letter of representations in customary form with respect to the
Bonds in book-entr form (the "DTC Representation Letter"), but such DTC Representation
Letter shall not in any way limit the provisions of the foregoing paragraph (b) or in any other
way impose upon the Issuer, the Trustee or the Paying Agent any obligation whatsoever with
respect to persons having interests in the Bonds other than the Owners, as shown on the
registration books kept by the Registrar. The Trustee, the Remarketing Agent and the Paying
Agent shall take all action necessary for all representations of the Issuer in the DTC
Representation Letter with respect to the Trustee, the Remarketing Agent and the Paying Agent
to be complied with at all times, including but not limited to, the giving of all notices required
under the DTC Representation Letter. The Trustee and Paying Agent are hereby authonzed by
the Issuer to enter into the DTC Representation Letter.
(d) DTC may determine to discontinue providing its services with respect to the Bonds
at any time by giving reasonable notice to the Issuer or the Trustee and discharging its
responsibilities with respect thereto under applicable law. The Issuer, with the consent of the
Company, may terminate the services of DTC with respect to the Bonds. Upon the
discontinuance or termination of the services of DTC with respect to the Bonds, unless a
substitute securities depository is appointed to undertke the functions of DTC hereunder, the
Issuer, at the expense of the Company, is obligated to deliver Bond certificates to the Beneficial
- 28-Senes 20 lOA Trust Indenture
Owners of such Bonds, as described in this Indenture. and such Bonds shaH no longer be
restricted to being registered in the registration books kept by the Registrar in the name of the
Nominee. but may be registered in whatever name or names Owners transfernng or exchanging
Bonds shaH designate. in accordance with the provisions of this Indenture.
( e) Notwithstanding any other provision of this Indenture to the contrary, so long as any
Bond is registered in the name of the Nominee, all payments with respect to principal or
purchase price of or, premium if any, and interest on such Bond and all notices with respect to
such Bond shall be made and given. respectively, in the manner provided in the DTC
Representation Letter. Owners shall have no lien or secunty interest in any rebate or refund paid
by DTC to the Paying Agent which arises from the payment by the Paying Agent of principal of,
or premium, if any, or interest on, the Bonds in immediately available funds to DTC.
(0 So long as any Bond is held in book-entry form a Beneficial Owner (through its
DTC Participant) shall give notice to the Trustee to elect to have its Bonds purchased. and shall
effect delivery of such Bonds by causing such DTC Partcipant to transfer its interest in the
Bonds equal to such Beneficial Owner's interest on the records of DTC to the Trustee's
participant account with DTC. The requirement for physical delivery of the Bonds in connection
with any purchase pursuant to Section 3.01 and Section 3.02 hereof shall be deemed satisfied
when the ownership rights in the Bonds are trnsferred by DTC Partcipants on the records of
DTC to the Trustee's participant account.
Section 2.16. Credit Facility Proviions. So long as the Credit Facilty shall be in effect.
the Trustee, Registrar and Paying Agent shall observe the following provisions respecting the
Credit Facilty:
(a) During such time as there is in effect a Credit Facility that consists of a
direct pay letter of credit, the Trustee shall draw upon the Credit Facilty in accordance
with its terms in an amount which. together with moneys referred to in Section 6.03(c)(i)
and 6.03(d)(i) hereof, wil be suffcient. together with any moneys then on deposit in the
Credit Facility Fund, to pay. on any Bond Payment Date. principal of and interest on the
Bonds. The Trustee shall draw moneys under such Credit Facility in accordance with
Section 3.06(c) hereof and in accordance with its terms to ensure timely payment thereof
to the extent necessary to pay to the Trustee the purchase price of Bonds delivered or
deemed to be delivered to the Trustee in accordance with Sections 3.01 or 3.02 hereof. In
no event shall the Trustee draw upon the Credit Facilty to make any payment of
principal or purchase pnce of or interest on Pledged Bonds or Bonds held of record by or,
to the extent that the Company notified a Responsible Officer of the Trustee in writing of
such ownership, on behalf of the Company or any subsidiary or affliate of the Company.
Immediately following a drawing under the Credit Facility and not as a condition
to such drawing, the Trustee shall give telephonic. electronic mail or facsimile notice to
the Company that such a drawing under the Credit Facility was made.
(b) If at any time there shall cease to be any Bonds Outstanding hereunder, the
Trustee shaH promptly surrender the Credit Facility then in effect to the Provider thereof
- 29-Senes 20lOA Trust Indenture
in accordance with the terms thereof and of this Indenture for cancellation. Following a
Change of Credit Facilty, the Trustee shall promptly after such Change surrender the
Credit Facility which has been changed to the Provider thereof, in accordance with the
terms thereof and of this Indenture, for cancellation; provided, however, that the Trustee
shall only surrender a Credit Facility, which consists of a direct pay letter of credit, after
all draws on such Credit Facility pursuant to Section 3 .02( c) hereof have been honored by
the Provider thereof; and , provided, further, that the Trustee shall only surrender First
Mortgage Bonds in accordance with Section 5.l2(c) hereof.
(c) In the event Bonds are to be purchased pursuant to Section 3.02(a)(iii)
hereof due to a Change of Credit Facilty, the notice of mandatory purchase shall be
given by the Trustee in accordance with Section 3.08 hereof. If, pnor to the fifth day
next preceding the date fixed for a mandatory purchase pursuant to Section 3.02(a)(iii)
hereof, subsequent to the giving of such notice pursuant to Section 3.08 hereof, the term
of the existing Credit Facilty shall have been extended or the Company notifies the
Trustee that the delivery of an alternate Credit Facility or the termination of the then
existing Credit Facility pursuant to Section 4.07 of the Agreement shall not occur, then
the Trustee shall give notice of such extension of the term of the existing Credit Facilty
or that the delivery of an alternate Credit Facility or the termination of the then existing
Credit Facility pursuant to Section 4.07 of the Agreement shall not occur, which notice
shall specify (w) that the notice of a Change of Credit Facility has been given, (x) that
subsequent to the giving of such notice the term of the existing Credit Facility has been
extended or the Company has notified the Trustee that delivery of an alternate Credit
Facilty or the termination of the existing Credit Facility pursuant to Section 4.07 of the
Agreement shall not occur, (y) the date that the term of the Credit Facility will expire and
(z) that the mandatory purchase for which notice was given wil not occur. Such notice
that the term of the Credit Facility has been extended or that the Company has notified
the Trustee that delivery of an alternate Credit Facility or the termination of the then
existing Credit Facilty pursuant to Section 4.07 of the Agreement shall not occur, shall
be given by the Trustee by Mail to the Owners of the Bonds not more than five days
following such extension or the receipt by the Trustee of such notice from the Company.
(d) The Trustee shall not sell, assign or otherwise trsfer the Credit Facility
or any interest in the Revenues except to a successor Trustee hereunder and in accordance
with the terms of the Credit Facility or the Agreement, as the case may be.
(e) While a book-entr system is in effect for the Bonds, the Trustee shall
give wntten notice of a Change of Credit Facility to DTC at least twenty (20) days pnor
to the effective date of the Change of Credit Facility. In the event that notice cannot be
given within such twenty-day penod, the Trustee shall provide such notice as soon as
practicable.
(f) If the Credit Facility then in effect shall be an insurance policy, in addition
to those rights granted the Provider under this Indenture, the Provider shall, to the extent
it makes payment of pnncipal of or interest on the Bonds, become subrogated to the
rights of the recipients of such payments in accordance with the terms of the Credit
- 30-Series 20lOA Trust Indenture
Facility, and to evidence such subrogation (i) in the case of subrogation as to claims for
past due interest, the Registrar shall note the Provider's rights as subrogee on the
registration books of the Issuer maintained by the Registrar upon receipt from the
Provider of proof of the payment of interest thereon to the Owners, and (ii) in the case of
subrogation as to claims for past due principal, the Registrar shall note the Provider's
rights as subrogee on the registration boks of the Issuer maintained by the Registrar
upon surrender of the Bonds by the Owners thereof, together with proof of the payment
of principal thereof.
Section 2.17. CUSIP Numbers. The Issuer in issuing the Bonds may use "CDS/P"
numbers (if then generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Owners; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Bonds or as
contained in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Bonds, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Issuer or the Company wil promptly notify the
Trustee and the Registrar of any change in any CUSIP number(s).
Neither the Issuer, the Registrar nor the Trustee shall have any responsibility for any
defect in the CUSIP number that appears on any Bond, check, advice of payment or redemption
notice, and any such document may contain a statement to the effect that CUSIP numbers have
been assigned by an independent service for convenience of reference and that neither the Issuer,
the Registrar nor the Trustee shall be liable for any inaccuracy in such matters.
ARTICLE III
PURCHASE AND REMARKETING OF BONDS
Section 3.01. Owner's Option to Tender for Purchase. (a) Daily Interest Rate Period.
During any Daily Interest Rate Period, any Bond or portion thereof in an Authorized
Denomination shall be purchased at the option of the Owner thereof on any Business Day at a
purchase price equal to 100% of the principal amount thereof plus accrued interest, if any, from
the Interest Payment Date next preceding the date of purchase to the date of purchase (unless the
date of purchase shall be an Interest Payment Date, in which case the purchase price shall be
equal to the principal amount thereof), upon (i) delivery to the Trustee at the Delivery Offce of
the Trustee and to the Remarketing Agent at the Prncipal Office of the Remarketing Agent, by
no later than 10:00 a.m., New York, New York time, on such Business Day, of an irrevocable
written notice (which may be by facsimile or other writing) which states the principal amount
and certificate number (if the Bonds are not then held in book-entry form) of such Bond and the
date on which the same shall be purchased, and (ii) subject to Section 2.15(f) hereof and the last
paragraph of Section 3.03 hereof, delivery of such Bond tendered for purchase to the Trustee at
the Delivery Office of the Trustee, accompanied by an instrument of transfer thereof in a form
satisfactory to the Trustee, executed in blank by the Owner thereof with the signature of such
Owner guaranteed by a member or partcipant in a "signaure guarantee program" as provided
in the form of assignment attched to such Bond, at or prior to 1:00 p.m., New York, New York
- 31 -Series 20iOA Trust Indenlure
time, on the purchase date. The Trustee shaH keep a wntten record of each notice descnbed in
clause (i) above.
(b) Weekly Interest Rate Period. During any Weekly Interest Rate Period, any Bond or
portion thereof in an Authonzed Denomination shall be purchased at the option of the Owner
thereof on any Business Day at a purchase pnce equal to 100% of the principal amount thereof
plus accrued interest, if any, from the Interest Payment Date next preceding the date of purchase
to the date of purchase (unless the date of purchase shall be an Interest Payment Date, in which
case the purchase price shall be equal to the principal amount thereof), upon (i) delivery to the
Trustee at the Delivery Ofce of the Trustee, with a copy to the Remarketing Agent at the
Pnncipal Office of the Remarketing Agent, of an irrevocable wntten notice (which may be by
facsimile or other writing), by 5:00 p.m., New York, New York time, on any Business Day,
which states the principal amount of such Bond and the certificate number (if the Bonds are not
then held in bok-entry form) and the date on which the same shaH be purchased, which date
shall not be prior to the seventh day next succeeding the date of the delivery of such notice to the
Trustee, and (ii) subject to Section 2.15(f) hereof and the last paragraph of Section 3.03 hereof,
delivery of such Bond to the Trustee at the Delivery Ofce of the Trustee, accompanied by an
instrument of transfer thereof in a form satisfactory to the Trustee, executed in blank by the
Owner thereof with the signature of such Owner guaranteed by a member or participant in a
"signature guarantee program" as provided in the form of assignment attched to such Bond, at
or prior to 1:00 p.m., New York, New York time, on the purchase date. The Trustee shaH keep a
written record of each notice described in clause (i) above.
(c) Term Interest Rate Period. Any Bond or portion thereof in an Authorized
Denomination shall be purchased at the option of the Owner thereof on the first day of any Term
Interest Rate Period which is preceded by a Term Interest Rate Penod of equal duration at a
purchase price equal to 100% of the principal amount thereof upon (x) delivery to the Trustee at
the Delivery Offce of the Trustee, with a copy to the Remarketing Agent at the Principal Ofce
of the Remarketing Agent, of an irrevocable notice in writing by 5:00 p.m., New York, New
York time, on any Business Day not less than fifteen days before the purchase date, which states
the principal amount and certificate number (if the Bonds are not then held in book-entry form)
of such Bond to be purchased, and (y) subject to Section 2.15(f) hereof and the last paragraph of
Section3.03 hereof delivery of such Bond to the Trustee at the Delivery Ofce of the Trustee,
accompanied by an instrument of transfer thereof in a form satisfactory to the Trustee, executed
in blank by the Owner thereof with tbe signature of such Owner guaranteed by a member or
participant in a "signature guarantee program" as provided in the form of assignment attched
to such Bond, at or pnor to 1:00 p.m. New York, New York time, on the purchase date. The
Trustee shaH keep a wntten record of each notice descnbed in clause (x) above.
(d) If any Bond is to be purchased in part pursuant to Section 3.01(a), Section 3.01(b)
or Section 3.01(c) hereof, the amount so purchased and the amount not so purchased must each
be an Authonzed Denomination.
Sectin3.0Z. Mandory Purchae. (a) The Bonds shall be subject to mandatory
purchase at a purchase pnce equal to 100% of the principal amount thereof, plus accrued interest,
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if any, to the purchase date described below, upon the occurrence of any of the events stated
below:
(i) as to any Bond, on the effective date of any change in a Rate Period with
respect to such Bond, other than the effective date of a Term Interest Rate Period which
was preceded by a Term Interest Rate Period of the same duration;
(ii) as to each Bond in a Aexible Interest Rate Period, on the Business Day
next succeeding the last day of any Aexible Segment with respect to such Bond;
(iii) as to any Bond, on the date set forth in any notice of a Change of Credit
Facilty given by the Company pursuant to Section 4.07(b) of the Agreement, which shall
be a date that is on or before the effective date of such Change of Credit Facilty;
provided, however, that if such Change of Credit Facility consists of the termination of
the then existing Credit Facility, the purchase date shall be the Business Day immediately
preceding such termination; provided, further, that if the Bonds are then subject to
optional redemption pursuant to Section 4.02(b)(iii), the purchase price shall include any
premium that would have been payable upon such redemption had the Bonds been
redeemed;
(iv) as to any Bond, if the Credit Facility then in effect consists of a direct pay
letter of credit, on the second Business Day following the day that the Trustee receives
notice from the Provider that, following a drawing on such Credit Facility on an Interest
Payment Date for the payment of unpaid interest on the Bonds, such Credit Facilty wil
not be reinstated in accordance with its terms;
(v) as to any Bond, if a Credit Facility is in effect, on the second Business
Day following the day that the Trustee receives notice from the Provider directing such
mandatory purchase upon the occurrence and continuance of an event of default under
the Credit Facility Agreement; or
(vi) as to each Bond in a Daily Interest Rate Period or a Weekly Interest Rate
Period, on any Business Day designated by the Company, with the consent of the
Provider and the Remarketing Agent.
(b) When Bonds are called for redemption pursuant to Section 4.02(b)(iii) hereof and if
the Company gives notice to the Trustee on or before the Business Day prior to the redemption
date that the Company elects to have the Bonds purchased in lieu of redemption, all or any
portion of the Bonds that the Company elects to purchase shall be subject to mandatory purchase
on such redemption date at a purchase price equal to 1000/0 of the principal amount thereof plus
an amount equal to any premium that would have been payable upon such redemption had the
Bonds been redeemed. If the Bonds are purchased in lieu of redemption on or prior to the
applicable Record Date, the purchase price shall include accrued interest from the Interest
Payment Date next preceding the date of purchase to the date of purchase (unless the date of
purchase shall be an Interest Payment Date, in which case the purchase pnce shall be equal to the
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amount specified in the preceding sentence). If the Bonds are purchased in lieu of redemption
after such Record Date, the purchase price shall not include accrued interest.
(c) The Trustee shall by 3:00 p.m., New York, New York time, on the Business Day
preceding the day that the Bonds are subject to mandatory purchase pursuant to Section
3.02(a)(iii) draw on the then existing Credit FaciJty in an amount suffcient to pay the principal
and interest which wil be due on the purchase date and hold such amount uninvested and
without any liability for interest until the purchase date when such amount shall be applied to pay
the amount.. due to the Owners of the Bonds on the purchase date.
(d) The Trustee shall, if the Credit Facility then in effect consists of a direct pay letter
of credit, (i) immediately following receipt of notice from the Provider pursuant to Section
3.02(a)(iv) or (ii) by 3:00 p.m., New York, New York time, on the Business Day preceding the
day that the Bonds are subject to mandatory purchase pursuant to Section 3.02(a)(v), draw on
that Credit Facility in an amount sufficient to pay the principal and interest which wil be due on
the purchase date and hold such amount uninvested and without any JiabiJty for interest until the
purchase date when such amount shall be applied to pay the amounts due to the Owners of the
Bonds on the purchase date.
Section 3.03. Payment of Purchase Prie. If Bonds are to be purchased pursuant to
Section 3.01 or Section 3.02, the Trustee shall pay the purchase pnce of such Bonds but solely
from the following sources in the order of priority indicated, and the Trustee shall not have any
obligation to use funds from any other source:
(a) moneys which constitute Available Moneys and are furnished by the
Company to the Trustee pursuant to Section 8.02 of the Agreement for purchase of
Bonds;
(b) proceeds of the remarketing and sale of such Bonds (other than Bonds sold
to the Company, any subsidiary or guarantor of the Company, or the Issuer or any
"insider" (as defined in the United States Bankruptcy Code)) pursuant to Section 3.04
hereof and which proceeds are on deposit with the Trustee prior to 12:00 noon New
York, New York time, on the purchase date;
(c) moneys (which constitute Available Moneys or moneys provided pursuant
to a Credit Facility on which neither the Company nor any affiiate thereof is the obligor
for the payment of the purchase price of the Bonds) furnished to the Trustee pursuant to
Article VII hereof, such moneys to be applied only to the purchase of Bonds which are
deemed to be paid in accordance with Article VII hereof;
(d) moneys furnished to the Trustee representing moneys provided pursuant to
a Credit Facilty on which neither the Company nor any affiliate thereof is the obligor for
the payment of the purchase pnce of the Bonds; and
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(e) any other moneys furnished by or on behalf of the Company to the Trustee
for purchase of the Bonds, including, without limitation, any moneys from Additional
Collateral;
provided, however, that funds for the payment of the purchase price of Bonds which are deemed
to be paid in accordance with Article VII hereof shall be derived only from the sources
described in Section 3.03(c); provided, further, that if the Credit Facility then in effect consists of
a direct pay letter of credit, the Trustee shall pay the purchase price of the Bonds, first, from
moneys described in clause (b) above, second, and only to the extent such moneys were provided
pursuant to the Credit Facility, from moneys described in clause (c) above, third, from moneys
described in clause (d) above, and lat, from the remaining sources and in the order of priority of
such remaining sources described above.
Subject to Section 2.15 hereof, the Registrar shall register new Bonds as directed by the
Remarketing Agent and make such Bonds available for delivery on the date of such purchase.
Payment of the purchase price of any Bond shall be made in immediately available funds for
Bonds in a Flexible, Daily, Weekly or Term Interest Rate Period (subject to Section 2.15(f)
hereof) in each case only upon presentation and surrender of such Bond to the Trustee.
If moneys sufficient to pay the purchase price of Bonds to be purchased pursuant to
Section 3.01 or Section 3.02 hereof shall be held by the Trustee on the date such Bonds are to be
purchased, such Bonds shall be deemed to have been purchased and shall be purchased
according to the terms hereof, for all purpses of this Indenture, irrespective of whether or not
such Bonds shall have been delivered to the Trustee, and the former Owner of such Bonds shall
have no claim under this Indenture or otherwise, for any amount due with respect to such Bonds
other than the purchase price thereof.
Sectin 3.04. Remarketing of Bonds by Remarketing Agent. (a) Whenever any Bonds
are subject to purchase pursuant to Section 3.01 or Section 3.02 hereof, the Remarketing Agent
shan offer for sale and use its best efforts to remarket such Bonds to be so purchased, any such
remarketing to be made at a price equal to 100% of the principal amount thereof, plus accrued
interest, if any, to the purchase date. The Company may, with the consent of the Provider, direct
the Remarketing Agent from time to time to cease and to resume sales effort with respect to
some of or all of the Bonds.
(b) The Remareting Agent shall continue its effort to remarket any Pledged Bonds
without the Provider having tendered such Bonds, and any failure to timely pay principal of and
interest on such Pledged Bonds to the Provider shall not constitute an Event of Default
hereunder. Upon the remarketing of Pledged Bonds, the Remarketing Agent shall immediately
provide telephonic notice, promptly confirmed in writing, of such remarketing to the Company
and the Provider and electronic mail or facsimile notice to the Trustee, specifying in said notice
the aggregate principal amount, the purchase price (which shall include any accrued interest), the
purchase date and the purchaser thereof, and thereupon the Trustee or the Provider, whichever
has possession of such Bonds, shall, subject to Section 3.06(a)(iii) hereof, immediately release
such Bonds to the Trustee.
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(c) If the Remarketing Agent is remarketing the Bonds afer the date notice has been
given of the redemption of such Bonds pursuant to Section 4.02 or 4.03 hereof (and prior to the
redemption date thereof), the Remarketing Agent shall provide to the Trustee the names of the
Persons to whom the Bonds are being remarketed so that the Trustee can provide the notice
required by Section 3.05(a) hereof.
(d) Promptly, but in no event later than 11 :30 a.m., New York, New York time, on the
Business Day following the day on which the Trustee receives notice from any Owner of its
demand to have the Trustee purchase Bonds pursuant to Section 3.01(b) or Section 3.01(c)
hereof, the Trustee shall give facsimile, electronic mail or telephonic notice, confirmed in writing
thereafter, to the Remarketing Agent specifying the principal amount of Bonds which such
Owner has demanded to have purchased and the date on which such Bonds are demanded to be
purchased.
Section 3.05. Limits on Remarketing. Any Bond purchased pursuant to Sections 3.01
and 3.02 hereof from the date notice is given of redemption pursuant to Sections 4.02 and 4.03
hereof through the date of such redemption shall not be remarketed unless the Person buying
such Bonds has been given notice in writing by the Trustee that such Bonds are to be redeemed.
Furthermore, in addition to the requirements of the preceding sentence, if the Bonds are subject
to redemption pursuant to Section 4.03 hereof, the Person buying such Bonds shall also be given
notice in writing by the Trustee that a Determination of Taxability has occurred and that such
Bonds are subject to mandatory redemption pursuant to Section 4.03 hereof.
Section 3.06. Delivery of Bonds; Delivery of Proceeds of Remarketing Sale; Payments
from Credit Facilit.
(a) DELIVERY OF BONDS. Bonds purchased pursuant to Section 3.01 or Section 3.02
hereof shall be delivered as follows:
(i) Delivery of Remarketed Bonds. Subject to Section 2.15 hereof, Bonds
remarketed by the Remarketing Agent pursuant to Section 3.04 hereof shall be delivered
to the purchasers thereof upon payment of the purchase price therefor.
(ii) Delivery of Bonds Purchased by the Company. Bonds delivered to the
Trustee and purchased with moneys furnished by the Company shall at the direction of
the Company, be (A) held by the Trustee for the account of the Company, (B) delivered
to the Trustee for cancellation or (C) delivered to the Company.
(ii) Delivery of Pledged Bonds. Bonds delivered to the Trustee and purchased
with moneys provided pursuant to a Credit Facilty, which consists of a direct pay letter
of credit, shall constitute Pledged Bonds, and shall be held by the Trustee for the benefit
of the Provider in a separate and segregated account to be designated as the "City of
Forsyth, Montana, Pollution Control Revenue Refunding Bonds (A vista Corporation
Colstrip Project), Series 2010A - Custody Account" (the "Custody Account").
Notwithstanding anything herein to the contrary, if the Trustee holds Pledged Bonds in
the Custody Account as agent of the Provider, the Trustee shall not release to the
- 36-Senes 2010A Trust Indenture
purchaser thereof or to the Remarketing Agent Pledged Bonds remarketed pursuant to
Section 3.04b) hereof unless the Trustee shall have received written notice (which may
be given by electronic mail or facsimile) from the Provider that it has been paid in full for
the Pledged Bonds and that such Credit Facility has been reinstated. The Trustee wil
comply with any DTC procedures applicable to the Pledged Bonds.
(iv) Delivery of Defeased Bonds. Bonds purchased by the Remarketing Agent
with moneys described in Section 3.03(c) hereof shall not be remarketed and shall be
delivered to the Trustee for cancellation.
(b) REGISTRATION OF DELIVERED BONDS. Bonds delivered as provided in this
Section 3.06 shall be registered in the manner directed by the recipient thereof.
(c) NOTICE OF FAILED REMARKEllNG. In the event that any Bonds are not
remarketed, the Remarketing Agent shall notify the Company by telephone, promptly confirmed
in writing by facsimile, and the Trustee in writing (which may be delivered by facsimile) no later
than 11:15 a.m., New York, New York time, on any day on which Bonds are delivered or
deemed delivered for purchase under this Indenture, of the aggregate principal amount of Bonds
not remarketed on such date and the aggregate principal amount of Bonds remarketed on such
date but for which the purchase price has not been paid (which Bonds for purposes of this
Indenture shall be considered to not be remarketed), as follows:
(i) Such notice to the Company shall be given to the Principal Ofce of the
Company, as follows:
A vista Corporation
1411 East Mission A venue
Spokane, Washington 9920
Attention: Treasurer
Telephone: [phone]
Facsimile: [phone]
The Company may, by notice given in accordance with Section 13.08 hereof to the
Remarketing Agent and the Trustee, designate any further or different addresses to which
subsequent such notices may be given.
(ii) Such notice to the Trustee shall be given to the Trustee, as follows:
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The Bank of New York Mellon Trust Company, N.A.
Two Union Square, Suite 520
601 Union Street
Seattle, Washington 98101-2321
Attention: Corprate Trust Administration
Telephone: [phone]
Facsimile: [phone]
The Trustee may, by notice given in accordance with Section 13 .08 hereof to the
Company and the Trustee, designate any further or different addresses to which subsequent such
notices may be given.
If the Credit Facility then in effect consists of a direct pay letter of credit, after the receipt
of such notice or if the Trustee has not received such notice by such time, the Trustee shall, by
12:00 noon, New York, New York time, on the purchase date, take the action specified in such
Credit Facility to the extent necessary, after taking into account moneys referred to in
Section 3.03(a), Section 3.03(b) and Section 3.03(c) hereof, as the case may be, to receive the
moneys required to pay the purchase price of such Bonds.
(d) PROCEEDS OF SALE HELD FOR SELLER OF BONDS. Moneys deposited with the
Trustee for the purchase of Bonds pursuant to Section 3.01 and Section 3.02 hereof shaH be held
uninvested in trust in one or more separate accounts, which shall be Eligible Accounts, and shall
be paid to the former Owners of such Bonds upon presentation thereof. The Trustee shall notify
the Company in writing within five days after the date of purchase if the Bonds have not been
delivered, and if so directed by the Company, shall give notice by Mail to each Owner whose
Bonds are deemed to have been purchased pursuant to Section 3.01 and Section 3.02 hereof
stating that interest on such Bonds ceased to accrue on the date of purchase and that moneys
representing the purchase price of such Bonds are available against delivery thereof at the
Delivery Offce of the Trustee. Bonds deemed purchased pursuant to Section 3.01 and
Section 3.02 hereof shall cease to accrue interest on the date of purchase. The Trustee shall hold
moneys deposited for the purchase of Bonds without liability for interest thereon, for the benefit
of the former Owner of the Bond on such date of purchase, who shall thereafter be restricted
exclusively to such moneys for any claim of whatever nature on its part under this Indenture or
on, or with respect to, such Bond. Any moneys so deposited with and held by the Trustee not so
applied to the payment of Bonds within six months after such date of purchase shall be paid by
the Trustee to the Company upon the written direction of an Authorized Company
Representative, and thereafter the Trustee shall have no furter liability with respect to such
moneys and the former Owners shall be entitled to look only to the Company for payment, and
then only to the extent of the amount so repaid to the Company, and the Company shall not be
liable for any interest thereon and shaH not be regarded as a trustee of such money.
Section 3.07. No Remarketing Sales After Certain Events. Anything in this Indenture to
the contrary notwithstanding, there shall be no sales of Bonds pursuant to a remarketing in
accordance with Section 3.04 hereof, if (a) there shaH have occurred and not have been cured or
waived an Event of Default described in Section 9.01(a), Section 9.01(b) or Section 9.01(c)
hereof of which an authorized offcer in the Prncipal Office of the Remarketing Agent and an
- 38-Series 20IOA Trust Indenture
authorized offcer of the corporate trst department of the Trustee have actual knowledge or (b)
the Bonds have been declared to be immediately due and payable pursuant to Section 9.02 hereof
and such declaration has not been rescinded pursuant to Section 9.02(d) hereof.
Section 3.08. Notice of Mandatory Purchae. (a) The Trustee shall give notice by Mail
of a proposed Change of Credit Facilty pursuant to Section 4.07(b) of the Agreement and
mandatory purchase of the Bonds to the Owners not less than 15 days prior to the effective date
of such Change of Credit Facility. In addition to the requirement of Section 3 .08(f), the notice of
mandatory purchase shall (i) describe the proposed Change of Credit Facilty (subject to the
Company's ability to rescind its election to make such Change of Credit Facility) and (ii) state
the effective date of such Change of Credit Facility.
(b) The Trustee shall, as soon as practicable, but in no event later than one Business
Day prior to the date the Bonds are subject to mandatory purchase pursuant to Section 3.02(aXiv)
or (v), give written notice by electronic mail, by facsimile or by overnight mail service of a
mandatory purchase of Bonds pursuant to Section 3.02(a)(iv) or (v) to the Remarketing Agent
and to the Owners.
(c) The Trustee shall give notice by Mail of an election by the Company to trigger a
mandatory purchase pursuant to Section 3.02(a)(vi) hereof to the Owners not less than 15 days
prior to the date designated by the Company for such mandatory purchase.
(d) The Trustee shall give notice by Mail of a mandatory purchase pursuant to
Section 3.02(a)(ii) hereof to the Owners not less than 15 days prior to the last day of the
applicable Aexible Segment.
(e) The Trustee shall give notice by Mail of a mandatory purchase in accordance with
the provisions of Section 2.02(f).
(f) Each notice of a mandatory purchase shaU (i) state the purchase date, (ii) identify
the particular clause of Section 3.02(a) that triggers the mandatory purchase, (iii) descnbe the
procedures for such mandatory purchase, (iv) state the purchase price of such Bonds on such date
(expressed as a percentage of the principal amount thereof), (v) state that the Owners of such
Bonds do not have the right to retain their Bonds on such date, and (vi) state such other matters
as the Company may direct.
Section 3.09. Pledged Bonds. If a beneficial interest in a Bond is purchased with moneys
drawn under a Credit Facilty, which consists of a direct pay letter of credit, pursuant to the
provisions hereof, that beneficial interest shall be designated on the books of the Remarketing
Agent as a Pledged Bond until released as herein provided. Provided there is no Event of
Default under this Indenture, the Remarketing Agent shall use its best effort to remarket
beneficial interests in Pledged Bonds. If the Remarketing Agent remarkets any beneficial
interest in a Pledged Bond, the Remarketing Agent shall give notice by electronic mail or
facsimile to the Provider of such remarketing, and shall direct the purchaser of such beneficial
interest to transfer, by 12:00 noon, New York, New York time, on the purchase date, the
purchase price of such remarketed beneficial interest to the Trustee for deposit into the Custody
- 39-Series 2OIOA Trust Indenture
Account. The Trustee shaH immediately give notice by electronic mail or facsimile to the
Provider and the Remarketing Agent of the receipt of the purchase pnce for such beneficial
interest in such Pledged Bond, which notice shall also request the Provider promptly advise the
Trustee and the Company of amounts that remain due and owing to the Provider pursuant to the
Credit Facility Agreement as a result of a draw on such Credit Facilty. Upon receipt by the
Trustee of such purchase pnce and written notice (which may be given by electronic mail or
facsimile) from the Provider of the reinstatement of such Credit Facility, such Pledged Bond
shall be considered released from the pledge to the Provider. The Trustee shall immediately
transfer such purchase pnce to the Provider upon receipt thereof to the extent that amounts
remain due and owing the Provider pursuant to the Credit Facility Agreement as a result of a
draw on such Credit Facility and give all required notices, in accordance with the terms of such
Credit Facility. If moneys remain on deposit with the Trustee in the Custody Account after
payment is made to the Provider of all amounts due and owing to the Provider in accordance
with the preceding sentence, such moneys shall be paid to. or upon the order of, the Company.
If the Bonds are no longer held in a book-entry only system and a Bond is purchased with
moneys drawn under a Credit Facilty that consists of a direct pay Jetter of credit. hereunder, that
Bond shall be delivered to and held by the Trustee in the Custody Account. Any Bond so
delivered to the Trustee shall be registered in the name of the Company, or, at the request of the
Provider, in the name of the Provider or its nominee, and shall thereafter constitute a Pledged
Bond until released as herein provided. Provided there is no Event of Default under this
Indenture, the Remarketing Agent shall use its best efforts to remarket Pledged Bonds. If the
Remarketing Agent remarkets any Pledged Bond, the Remarketing Agent shall give notice by
electronic mail or facsimile to the Provider of such remarketing and shall direct the purchaser of
such Pledged Bond to transfer, by 12:00 noon, New York, New York time, on the purchase date,
the purchase pnce of such remarketed Pledged Bond to the Trustee for deposit into the Custody
Account. The Trustee shall immediately give notice by electronic mail or facsimile to the
Provider of the receipt of the purchase pnce for such Pledged Bond, which notice shall also
request the Provider promptly advise the Trustee and the Company of amounts that remain due
and owing to the Provider pursuant to the Credit Facilty Agreement as a result of a draw on such
Credit Facility. Upon receipt by the Trustee of such purchase pnce and wntten notice (which
may be given by electronic mail or facsimile) from the Provider that such Credit Facility has
been reinstated, such Pledged Bond shall be considered released from the pledge of the Provider.
The Trustee shaH transfer such purchase pnce to the Provider upon receipt thereof to the extent
that amounts remain due and owing to the Provider pursuant to the Credit Facility Agreement as
a result of a draw on such Credit Facility and give all required notices, in accordance with the
terms of such Credit Facility. If moneys remain on deposit with the Trustee in the Custody
Account after payment is made to the Provider of all amounts due and owing to the Provider in
accordance with the preceding sentence, such moneys shall be paid to, or upon the order of, the
Company. The Trustee shall deliver the remarketed Pledged Bonds to the purchasers thereof in
accordance with Section 3.06(a)(i) hereof.
To the extent amounts are due and owing to the Provider under the Credit Facility
Agreement, the proceeds of the remarketing of Pledged Bonds (or beneficial interests therein)
shall be deposited into the Custody Account and held by the Trustee for the account of, and
- 40-Senes 2OlOA Trust Indenlure
solely for, the Provider, shall not be commingled with any other moneys held by the Trustee, as
appropriate, and shall be paid over immediately to the Provider.
On each Interest Payment Date prior to the release of Pledged Bonds (or beneficial
interests therein) held by the Remarketing Agent or by the Trustee, the Trustee shall (i) if the
Bonds are held in a book-entry only system, cause the Remarketing Agent to notify DTC that the
Remarketing Agent has waived payment on such Interest Payment Date with respect to such
Pledged Bonds, and that the Trustee shall be paying the Provider with respect thereto directly
from the Bond Fund, and (ii) whether or not the Bonds are held in a book-entr only system,
apply moneys on deposit in the Bond Fund to the payment of the pnncipal of and interest on
such Pledged Bonds through direct transfer thereof to the Provider (receipt of which payment
shall promptly be acknowledged by the Provider by notice by electronic mail of facsimile to the
Trustee and the Remarketing Agent). Under no circumstances shall the Trustee either (i) draw
on the Credit Facility or use moneys in the Credit Facility Fund for purposes of making any
payment with respect to Pledged Bonds, or (Ii) apply moneys on deposit in the Bond Fund for
transfer to DTC in payment of any Pledged Bond.
It is recognized and agreed by the Remarketing Agent and the Trustee that each Pledged
Bond (or beneficial interest therein) is held for the benefit of the Provider pursuant to the terms
of the Credit Facility Agreement.
If any Bonds constitute Pledged Bonds due to a failure in remarketing such Bonds on a
mandatory tender date, the Remarketing Agent shall be entitled to determine a new Daily Interest
Rate, Weekly Interest Rate or Aexible Interest Rate with respect to such Bonds, as appropriate
(under the conditions and subject to the limitations provided above), effective on such date as the
Remarketing Agent is able to remarket such Pledged Bonds in whole. Such new rate with
respect to such Bonds shall be established by the Remarketing Agent in its sole judgment having
due regard for prevailing financial market conditions at the lowest rate which wil permit the
Pledged Bonds to be sold at a price of par plus accrued interest to such delivery date. The
determination of a new Daily Interest Rate, Weekly Interest Rate or Aexible Interest Rate with
respect to such Bonds, as appropriate, by the Remarketing Agent shall be conclusive and binding
upon the Issuer, the Company, the Trustee, the Provider and the Owners of the Bonds.
ARTICLE iv
REDEMPTION OF BONDS
Section 4.01. Redemption of Bonds Generaly. (a) The Bonds are subject to redemption
if and to the extent the Company is entitled or required to make and makes a prepayment
pursuant to Artcle VII of the Agreement. Except as specifically provided in Section 4.03
hereof, the Trustee shall not give notice of any redemption under Section 4.05 hereof unless the
Company has so directed in accordance with Section 8.01 of the Agreement; provided that the
Trustee may require prepayment of Loan Payments under Section 4.01 of the Agreement in the
case of mandatory redemption.
- 41 -Series 2010A Trust Indenture
Sectin 4.02. Redemption Upon Optinal Prepayment. (a) The Bonds shall be
redeemed in whole or in par, and if in part by lot, at any time at a redemption price equal to
100% of the principal amount thereof plus accrued interest to the redemption date, upon receipt
by the Trustee of a written notice from the Company stating that any of the following events has
occurred and that the Company therefore intends to exercise its option to prepay the payments
due under the Agreement in whole or in part pursuant to Section 8.01 of the Agreement and
thereby effect the redemption of Bonds in whole or in part to the extent of such prepayments:
(i) the Company shall have determined or concurred in a determination that
the continued operation of the Plant is impracticable, uneconomical or undesirable for
any reason;
(ii) all or substantially all of the Plant shall have been condemned or taken by
eminent domain;
(ii) the operation of the Plant shall have been enjoined or shall have otherwise
been prohibited by, or shall conflct with, any order, decree, rule or regulation of any
court or of any federal, state or local regulatory body, administrative agency or other
governmental body;
(iv) unreasonable burdens or excessive liabilties shall have been imposed
upon the Company in respect of all or a part of the Pollution Control Facilties or the
Plant including, without limitation, federal, state or other ad valorem, property, income or
other taxes not being imposed on the date of the Agreement, as well as any statute or
regulation enacted or promulgated after the date of the Agreement that prevents the
Company from deducting interest in respect of the Agreement for federal income tax
purposes; or
(v) aH or substantially aH of the Project shaH be transferred or sold to any
entity other than an affiliate of the Company.
(b) The Bonds shall be subject to redemption in whole, or in part by lot, prior to their
maturity, following receipt by the Issuer and the Trustee of a wntten notice from the Company
pursuant to Section 8.01 of the Agreement and upon prepayment of the Loan Payments at the
option of the Company, as follows:
(i) While the Bonds bear interest at a Aexible Interest Rate or Rates, each
Bond shall be subject to such redemption on the day next succeeding the last day of each
Aexible Segment for such Bond at a redemption price equal to 100% of the pnncipal
amount thereof plus accrued interest, if any, to the redemption date.
(ii) While the Bonds bear interest at a Daily Interest Rate or a Weekly Interest
Rate, the Bonds shall be, with the consent of the Provider, subject to such redemption on
any Business Day at a redemption price equal to 100% of the principal amount thereof
plus accrued interest, if any, to the redemption date.
-42 -Series 20WA Trust Indenture
(ii) While the Bonds bear interest at a Term Interest Rate, the Bonds shall be
subject to such redemption (1) on the day next succeeding the last day of each Term
Interest Rate Penod at a redemption price equal to the principal amount of the Bonds
being redeemed plus accrued interest, if any, to the redemption date and (2) either (A) on
the redemption dates and at the redemption prices specified by the Company pursuant to
Section 4.02(c) hereof or (B) during the redemption periods specified below, in each case
in whole or in part, at the redemption prices (expressed as percentages of principal
amount) hereinafter indicated plus accrued interest, if any, to the redemption date:
LENGTH OF TERM
INTEREST RATE PERIOD REDEMPTION DATES AND PRICES
Greater than or equal to 11 years At any time on or after the first day of the
calendar month fonowing the tenth anniversary
of the effective date at 102% declining 1 %
annually to 100%
Less than 11 years Not redeemable
(c) With respect to any Term Interest Rate Period, the Company may specify, pursuant
to Section 2.05(c), redemption provisions, prices and periods other than those set forth above;
provided however, at the time of such specification, the Company shall provide Favorable
Opinion of Bond Counsel with respect to such changes in redemption dates and prices.
Section 4.03. Redemptin Upon Mandory Prepayment. The Bonds shall be subject to
mandatory redemption in whole on any date from amounts which are to be prepaid by the
Company under Section 8.03 of the Agreement, at a redemption price equal to 100% of the
principal amount thereof plus interest accrued, if any, to the redemption date within one hundred
eighty (180) days following a Determination of Taxabilty; provided that if, in the opinion of
Bond Counsel delivered to the Trustee, the redemption of a specified portion of the Bonds
outstanding would have the result that interest payable on the Bonds remaining outstanding after
such redemption would remain Tax-Exempt, then the Bonds shall be redeemed in part by lot (in
Authonzed Denominations), in such amount as Bond Counsel in such opinion shall have
determined is necessary to accomplish that result.
Section 4.04. Selectin of Bonds for Redemption. If less than all of the Bonds are caned
for redemption the Trustee shall select the Bonds or any given portion thereof to be redeemed,
from the outstanding Bonds or such given portion thereof not previously called for redemption,
by lot. For the purpose of any such selection the Trustee shall (to the extent practicable) assign a
separate number for each minimum Authorized Denomination of each Bond of a denomination
of more than such minimum; provided that, following any such selection, both the portion of
such Bond to be redeemed and the portion remaining shall be in Authorized Denominations. The
Trustee shall promptly notify the Issuer and the Company in wnting of the numbers of the Bonds
or portions thereof so selected for redemption. Notwithstanding the foregoing provisions,
Pledged Bonds shall be redeemed prior to any other Bonds.
- 43-Series 20lOA Trust Indenture
Section 4.05. Notice of Redemption. (a) The Trustee, for and on behalf of the Issuer,
shall give notice of the redemption of any Bond by Mail, postage prepaid, not less than twenty
(20) nor more than sixty (60) days prior to the redemption date, to the Owner of such Bond at the
address shown on the registration books of the Registrar on the date such notice is mailed and to
the Remarketing Agent, any Provider, Mooy's, S&P, the Securities Depositories, one OTmore
of the Information Services and the Company Mortgage Trustee; provided, however, that failure
to duly give notice by Mail to any Owner shall not affect the validity of any proceedings for the
redemption of Bonds in respect of which no such failure has occurred. While the Bonds are held
by DTC as Owner of the Bonds, notice of redemption shall be given to DTC in accordance with
the DTC Representation Letter or in accordance with the requirements of DTC instead of being
given by Mail. Notice of redemption to the Securities Depositories and the Information Services
shall be given by registered maiL. Each notice of redemption shall state the date of such notice,
the date of issue of the Bonds to be redeemed, the redemption date, the redemption price, the
place of redemption (including the name and appropriate address or addresses of the Paying
Agent), the source of the funds to be used for such redemption, the principal amount,the CUSIP
number (if any) of the maturity and, if less than all, the distinctive certificate numbers of the
Bonds to be redeemed and, in the case of Bonds to be redeemed in part only, the respective
portions of the principal amount thereof to be redeemed. Each such notice shall also state that
the interest on the Bonds designated for redemption shall cease to accrue from and after such
redemption date and that on said date there wil become due and payable on each of said Bonds
the principal amount thereof to be redeemed, interest accrued thereon, if any, to the redemption
date and the premium, if any, thereon (such premium to be specified) and shall require that such
Bonds be then surrendered at the address or addresses of the Paying Agent specified in the
redemption notice. Notwithstanding the foregoing, failure by the Trustee to give notice pursuant
to this Section 4.05 to the Company Mortgage Trustee or to anyone or more of the Information
Services or Securities Depositories or the insufficiency of any such notices shall not afect the
sufficiency of the proceedings for redemption. Failure to give any required notice of redemption
as to any particular Bond or to the Company Mortgage Trustee shall not afect the validity of the
call for redemption of any Bonds in respect of which no such failure has occurred. Redemption
notices may state that no representation is made as to the accuracy or correctness of the CUSIP
numbers printed therein or on the Bonds.
(b) With respect to any notice of optional redemption of Bonds in accordance with
Section 4.02 hereof, unless, upon the giving of such notice, such Bonds shall be deemed to have
been paid within the meaning of Article VII hereof, such notice may state that such redemption
is conditioned upon the receipt by the Trustee, on or prior to the date fixed for such redemption,
of Available Moneys sufficient to pay the principal of, and premium, if any, and interest on, such
Bonds to be redeemed. In the event such Available Moneys are (i) not so received, (ii) no longer
sufficient to pay the principal of, and premium, if any, and interest on, such Bonds or (iii) no
longer considered Available Moneys, in each case, on the redemption date; the redemption shall
not be made and the Trustee shall within a reasonable time thereafter give notice, in the manner
in which the notice of redemption was given, that such redemption wil not take place.
(c) The Trustee shan also provide the notice with respect to the Bonds to be redeemed
as required by Section 3.05(a) hereof.
- 44-Series 20lOA Trust Indnture
Sectin 4.06. Partl Redemption of Bonds. Upon surrender of any Bond redeemed in
part only, the Registra shall exchange the Bond redeemed for a new Bond of like tenor and in an
Authorized Denomination without charge to the Owner in the pnncipal amount of the portion of
the Bond not redeemed. In the event of any partial redemption of a Bond which is registered in
the name of Cede & Co., DTC may elect to make a notation on the Bond certificate which
reflects the date and amount of the reduction in the principal amount of said Bond in lieu of
surrendering the Bond certficate to the Registrar for exchange. The Issuer, the Company and
the Trustee shall be fully released and discharged from all liabilty to the extent of payment of
the redemption pnce for such partial redemption.
Sectin 4.07. No Partl Redemption After Default. Anything in this Indenture to the
contrary notwithstanding, if there shall have occurred and be continuing an Event of Default
(other than an Event of Default described in Section 9.0l(d) hereof) of which a Responsible
Officer of the Trustee has actual knowledge, there shaH be no redemption of less than all of the
Bonds at the time Outstanding.
Sectin 4.08. Payment of Redemption Price. For the redemption of any of the Bonds, the
Issuer shall cause to be deposited in the Bond Fund, solely out of the Revenues and any other
moneys constituting the Trust Estate, and which if the redemption is being made pursuant to
Section 4.02 hereof, constitute Available Moneys, an amount sufcient to pay the principal of,
and premium, if any, and interest to become due on, the Bonds called for redemption on the date
fixed for such redemption; provided, however, that if the redemption is being made pursuant to
Section 4.03 hereof and a Credit Facility is in effect and such Credit Facility consists of a direct
pay letter of credit, then the deposit to the Bond Fund shall consist solely of amounts drawn
under such letter of credit. The obligation of the Issuer to cause any such deposit to be made
hereunder shall be reduced by the amount of moneys in the Bond Fund or any fund in Article
VIII hereof available for and used on such redemption date for payment of the principal of, and
premium, if any, and accrued interest on, the Bonds to be redeemed. The Trustee shall apply
amounts as and when required available therefor in the Bond Fund or Credit Facility Fund to pay
principal of, and premium, if any, and interest on, the Bonds.
Section 4.09. Effect of Redemption. Notice of redemption having been duly given as
aforesaid, and moneys for payment of the redemption price being held by the Trustee if such
redemption was conditioned thereon, the Bonds so called for redemption shall, on the
redemption date designated in such notice, become due and payable at the redemption price
specified in such notice, interest on the Bonds so called for redemption shall cease to accrue, said
Bonds shall cease to be entitled to any lien, benefit or secunty under this Indenture, and the
Owners of said Bonds shall have no rights in respect thereof except to receive payment of the
redemption price thereof, without interest accrued on any funds held to pay such redemption
pnce accruing after the date of redemption.
All Bonds fully redeemed pursuant to the provisions of this Article iV shall be canceled
upon surrender thereof to the Paying Agent, which shaH upon the written request of the Issuer,
deliver to the Company a certificate evidencing such cancellation.
-45 -Series 20lOA Trust Indenture
ARTICLE V
GENERAL COVENANTS; CREDIT F ACIUTY; AND
ADDITIONAL COLLATERAL
Section 5.01. Payment of Bonds. (a) The Issuer covenants that it wil promptly payor
cause to be paid the principal of, and premium, if any, and interest on, every Bond issued under
this Indenture at the place, on the dates and in the manner provided herein and in the Bonds,
provided that the principal, premium if any, and interest are payable by the Issuer solely from the
Revenues, and nothing in the Bonds or this Indenture shall be considered as assigning or
pledging any other funds or assets of the Issuer other than the Trust Estate.
(b) Each and every covenant made herein by the Issuer is predicated upon the condition
that the Issuer shall not in any event be liable for the payment of the principal of, or premium, if
any, or interest on the Bonds, or for the payment of the purchase pnce of the Bonds, or the
peiformance of any pledge, mortgage, obligation or agreement created by or arising under this
Indenture or the Bonds from any propert other than the Trust Estate; and, further, that neither
the Bonds nor any such obligation or agreement of the Issuer shall be constred to constitute an
indebtedness or a lending of credit of the Issuer within the meaning of any constitutional or
statutory provision whatsoever, or constitute or give rise to a pecuniary liability of the Issuer or a
charge against its general credit or taxing power.
(c) For the payment of interest on the Bonds, the Issuer shall cause to be deposited in
the Interest Account or the Credit Facility Fund on or prior to each Interest Payment Date, solely
out of Revenues and other moneys pledged therefor, an amount sufficient to pay the interest to
become due on such Interest Payment Date; provided, however, that the obligation of the Issuer
to cause any such deposit to be made hereunder shall be reduced by the amount of moneys in the
Interest Account available on the Interest Payment Date for the payment of the interest on the
Bonds.
(d) For payment of the principal of the Bonds upon redemption, maturity or
acceleration of maturity, the Issuer shaJJ cause to be deposited in the Prncipal Account or the
Credit Facility Fund, on or prior to the redemption date or the maturity date (whether accelerated
or not) of the Bonds, solely out of Revenues and other moneys pledged therefor, an amount
suffcient to pay the pnncipal of the Bonds; provided, however, that the obligation of the Issuer
to cause any such deposit to be made hereunder shall be reduced by the amount of moneys in the
Pnncipal Account available on the redemption date or the maturity date (whether accelerated or
not) for the payment of the principal of the Bonds; and provided, further, that the obligation of
the Issuer to cause any such deposit to be made hereunder shall be deemed to be satisfed and
discharged to the extent of the corresponding payment made by the Provider to the Trustee under
the Credit Facility (unless the Credit Facility shall be an insurance policy, in which case such
obligation of the Issuer shall not be deemed to be satisfied and discharged).
Section 5.02. Peiformance of Covenants by Issuer; Authori; Due Execution. The
Issuer covenants that it wil faithfully peiform at all times any and all covenants, undertkings,
stipulations and provisions contained in this Indenture, in any and every Bond executed,
-46-Series 20lOA Trust Indenture
authenticated and delivered hereunder and in all of its proceedings pertining thereto. The Issuer
represents that it is duly authorized under the Constitution and laws of the State to issue the
Bonds and to execute this Indenture, to execute and deliver the Agreement, to assign the
Agreement and amounts payable thereunder, and to pledge the amounts hereby pledged in the
manner and to the extent herein set fort. The Issuer furter represents that all action on its part
for the issuance of the Bonds and the execution and delivery of this Indenture has been duly and
effectively taken, and that the Bonds in the hands of the Owners thereof are and wil be valid and
binding limited obligations of the Issuer.
The Issuer shall fully cooperate with the Trustee and with the Owners of the Bonds to the
end of fully protecting the rights and security of the Owners of any Bonds.
The Issuer represents that it now has, and covenants that it shall use its best efforts to
maintain, complete and lawful authority and privilege to enter into and perform its obligations
under this Indenture and the Agreement, and covenants that it wil at all times use its best efforts
to maintain its existence or provide for the assumption of its obligations under this Indenture and
the Agreement.
Except to the extent otherwise provided in this Indenture, the Issuer shan not enter into
any contract or take any action by which the rights of the Trustee or the Owners of the Bonds
may be impaired and shall, from time to time, execute and deliver such further instruments and
take such further action as may be reasonably required to carr out the purpses of this
Indenture.
Sectin 5.03. Immunites and Limitations of Responsibilit of Issuer; Remedies.
Without limiting the obligation of the Issuer to perform its covenants and obligations hereunder:
(a) The Issuer shall be entitled to the advice of counsel and shall be wholly
protected as to action taken or omitted in good faith in reliance on such advice.
(b) The Issuer may rely conclusively on any communication or other
document furnished to it hereunder and reasonably believed by it to be genuine.
(c) The Issuer shall not be liable for any action:
(i) taken by it in good faith and reasonably believed by it to be within
its discretion or powers hereunder, or
(ii) in good faith omitted to be taken by it because such action was
reasonably believed to be beyond its discretion or powers hereunder, or
(iii) taken by it pursuant to any direction or instruction by which it is
governed hereunder, or
-47 -Senes 20lOA Trust Indenture
(iv) omitted to be taken by it by reason of the lack of any direction or
instrction required hereby for such action; nor shall it be responsible for the
consequences of any error of judgment made by it in good faith.
(d) The Issuer shall in no event be liable for the application or misapplication
of funds or for other acts or defaults by any person, except its own officers and
employees.
(e) When any payment or consent or other action by it is called for hereby, it
may defer such action pending receipt of such evidence (if any) as it may require in
support thereof.
(f) The Issuer shall not be required to take any remedial action (other than the
giving of notice) unless reasonable indemnity satisfactory to it is furnished for any
expense or liability to be incurred thereby.
(g) As provided herein and in the Agreement, the Issuer shall be entitled to
reimbursement from the Company for its expenses reasonably incurred or advances
reasonably made, with interest at a rate per annum equal to the rate of interest then in
effect and as published in the Wall Street Journal as the composite prime lending rate for
domestic commercial loans, in the exercise of its rights or the pedonnance of its
obligations hereunder, to the extent that it acts without previously obtaining indemnity.
(h) No pennissive right or power to act which it may have shall be construed
as a requirement to act, and no delay in the exercise of a. right or power shall affect its
subsequent exercise of that right or power.
Section 5.04. Defense of Issuers Rights. The Issuer agrees that the Trustee may defend
the Issuer's rights to the payments and other amounts due under the Agreement, for the benefit of
the Owners of the Bonds, against the claims and demands of all persons whomsoever. The
Issuer covenants that it wil do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, such indentures supplemental hereto and such furter acts,instruments and transfers as the Trustee may reasonably require for the better assuring,
transferrng, pledging, assigning and confrmng to the Trustee all and singular the nghts
assigned hereby and the amounts pledged hereby to the payment of the principal of, and
premium, if any, and interest on, the Bonds. The Issuer covenants and agrees that, except as
herein and in the Agreement provided, it wil not sell, convey, assign, pledge, encumber or
otherwise dispose of any part of the Trust Estate.
Sectin 5.05. Recording and Filig; Further Instruments. (a) The Issuer and the
Trustee shall cooperate with the Company in the Company's fiing and recording of all
documents, notices and financing statements related to this Indenture and to the Agreement
which are necessary, as required by law, in order to pedect the lien of this Indenture in the Trust
Estate. Concurrently with the execution and delivery of the Bonds and in accordance with the
requirements of Section 5.04 of the Agreement, the Company shan cause to be delivered to the
Trustee an opinion of counsel (i) stating that, in the opinion of such counsel either (A) such
-48 -Series 2010A Trust Indenture
action has been taken, as set forth therein, with respect to the recording and fiing of such
documents, notices and financing statements as is necessary to pedect the lien of this Indenture
in the Trust Estate, or (B) no such action is necessary to pedect such lien, and (ii) stating the
requirements for the fiing of continuation statements or other documentation or notices in order
to maintain the pedection of the lien of this Indenture in the Trust Estate.
(b) The Issuer shall upon the reasonable request of the Trustee (which request the
Trustee is not required to make), from time to time execute and deliver such further instruments
and take such further action as may be reasonable (and consistent with the Bond Documents) and
as may be required to effectuate the purposes of this Indenture or any provisions hereof, provided
however, that no such instrments or actions shall pledge the general credit or the full faith of the
Issuer.
Secûon 5.06. Rights Under Agreement. The Agreement, a duly executed counterpart, of
which has been fied with the Trustee, sets fort the covenants and obligations of the Issuer and
the Company, including provisions that, subsequent to the issuance of the Bonds and prior to the
payment in full or provision for payment thereof in accordance with the provisions hereof, the
Agreement (except as expressly provided therein) may not be effectively amended, changed,
modified, altered or terminated without the concurrng written consent of the Trustee, as
provided in Article XII hereof, and reference is hereby made to the Agreement for a detaled
statement of such covenants and obligations of the Company, and the Issuer agrees that the
Trustee in its name or (to the extent required by law) in the name of the Issuer may enforce all
rights of the Issuer and all obligations of the Company under and pursuant to the Agreement,
whether or not the Issuer is in default hereunder. The Issuer shall cooperate with the Trustee in
enforcing the obligations of the Company to payor cause to be paid all amounts payable by the
Company under the Agreement.
Secûon 5.07. Arbitage and Tax Covenants. The Issuer wil not take or fail to take any
action that would impair the exclusion of interest on the Bonds from gross income for federal
income tax purpses. The Issuer further wil not knowingly act or fail to act so as to cause the
proceeds of the Bonds, any moneys derived, directly or indirectly, from the use or investment
thereof and any other moneys on deposit in any fund or account maintained in respect of the
Bonds (whether such moneys were derived from the proceeds of the sale of the Bonds or from
other sources) to be used in a manner which would cause the Bonds to be treated as "arbitrage
bonds" within the meaning of Section 148 of the Code, or which would otherwise adversely
affect the Tax-Exempt status of the Bonds.
Secûon 5.08. No Dispositon of Trut Estae. Except as permitted by this Indenture, the
Issuer shall not sell lease, pledge, assign or otherwise encumber or dispose of its interest in the
Trust Estate and wil promptly pay (but only from the Revenues) or cause to be discharged, or
make adequate provision to discharge, any lien or charge on any part thereof not permitted
hereby.
Secûon 5.09. Access to Books. All books and documents in the possession of the Issuer
relating to the Revenues and the Trust Estate shall at all reasonable times be open to inspection
by such accountants or other agencies as the Trustee may from time to time designate.
- 49-Series 2010A Trust Indenture
Sectin 5.10. Source of Payment of Bonds. The Bonds are not general obligations of the
Issuer but are limited obligations payable solely from the Revenues. The Revenues have been
pledged and assigned as security for the equal and ratable payment of the Bonds and shall be
used for no other purpose than to pay the principal of, and premium, if any, and interest on, the
Bonds, except as may be otherwise expressly authorized in this Indenture or the Agreement.
Section 5.11. Credit Facilit. The Trustee and the Paying Agent shall take action under
the Credit Facility, in accordance with the terms and subject to the coverage thereof, to the extent
necessary in order to cause amounts in respect of the principal of, interest on and, if applicable,
the purchase price of the Bonds to be payable by the Provider pursuant to the Credit Facility to
the Owners of the Bonds. The Trustee shall not sell, assign, transfer or surrender the Credit
Facility except as described in Section 2.16 hereof and, in the case of First Mortgage Bonds that
constitute a Credit Facilty, except as described in Section 5.12 hereof.
Section 5.12. First Mortgage Bonds. In the event that the Trustee shall hold First
Mortgage Bonds, whether delivered as a Credit Facilty or as Additional Collateral, the Trustee
shaJl observe the following provisions respecting the First Mortgage Bonds:
(a) No Transfer of First Mortgage Bonds. The Trustee shall not sell, assign or
transfer any First Mortgage Bonds except to a successor trustee under this Indenture.
First Mortgage Bonds may be held by and registered in the name of the Trustee's
nominee, for the benefit of the Owners of the Bonds, without violating the provisions of
the preceding sentence, provided that such nominee is under the control of the Trustee
and that the ability of the Trustee to perform its obligations hereunder wil not be
adversely affected thereby.
(b) Voting of First Mortgage Bonds. The Trustee shall, as the holder of any
First Mortgage Bonds, attend such meeting or meetings of bondholders under the
Company Mortgage or, at its option, deliver its proxy in connection therewith, as related
to matters with respect to which it is entitled to vote or consent. So long as no Event of
Default of which a Responsible Officer of the Trustee has actual knowledge shalJ have
occurred and be continuing, either at any such meeting or meetings, or otherwise when
the consent of the holders of the first mortgage bonds issued under the Company
Mortgage is sought without a meeting, the Trustee shall vote as the holder of any First
Mortgage Bonds, or shall consent with respect thereto proportonately with the vote or
consent of the holders of all other first mortgage bonds of the Company then outstanding
under the Company Mortgage, the holders of which are eligible to vote or consent.
Anything in this Indenture to the contrary notwithstanding:
(i) the proportonate votes or consents of the holders of first mortgage
bonds (other than the First Mortgage Bonds) shall be exclusively evidenced for
purpses of this Section 5.12(b) by a Bondholder's Certficate (as hereinafter
defined) delivered to the Trustee; the Trustee shall have no duty or obligation to
make any other determination of such proportionate votes or consents or to verify
the accuracy of any Bondholder's Certificate; and the Trustee shall have no duty
- 50-Series 20JOA Trust Indenture
or obligation to vote or consent with respect to the First Mortgage Bonds unless
and until it shall have received a Bondholder's Certificate;
(ii) the Trustee shall not vote as such holder in favor of, or give its
consent to, any amendment or modification of the Company Mortgage which, if it
were an amendment or modification of this Indenture. would not be described in
Section 12.01 hereof (and the Trustee shall be entitled to rely on an opinion of
counsel to the Company or an opinion of Bond Counsel as to whether or not such
amendment or modification of the Company Mortgage is described in Section
12.01 hereof) without (A) the prior consent and approval, obtained in the manner
prescribed in Secton 12.02 hereof. of Owners of Bonds which would be required
under said Section 12.02 for such an amendment or modification of this Indenture
and (B) the consent of the Provider (unless an Provider Default shall have
occurred and be continuing); and
(iii) this Section 5.l2(b) shall not apply to any vote or consent of
bondholders under the Company Mortgage with respect to any matter if and to the
extent that the instrment establishing the First Mortgage Bonds as a series under
the Mortgage (and the terms of such senes) shall provide that the holder of the
First Mortgage Bonds shall be deemed to have voted or consented with respect to
such matter in a manner specified in such instrment.
For purposes of this Section 5.l2(b). "Bondholder's Certifcate" means a
certificate signed by the temporary chairman. the temporary secreta. the permanent
chairman. the permanent secretary, or an inspector of votes at any meeting or meetings of
bondholders under the Company Mortgage, or by the Company Mortgage Trustee in the
case of consents of such bondholders which are sought without a meeting, which states
what the signer thereof reasonably believes wil be the proportionate votes or consents of
the holders of all first mortgage bonds (other than the First Mortgage Bonds) outstanding
under the Company Mortgage and counted for the purposes of determining whether such
bondholders have approved or consented to the matter put before them.
Any action taken by the Trustee in accordance with the provisions of this
Section 5.12(b) shall be binding upon the Issuer and the Owners of Bonds.
(c) Surrender of First Mortgage Bonds. The Trustee shall surrender any First
Mortgage Bonds to the Company Mortgage Trustee only in accordance with the
provisions of Section 4.07(b), Section 4.09d) or Section 4.lO(b) ofthe Agreement.
(d) Notice to Company Mortgage Trustee. In the event that a payment on any
First Mortgage Bonds shall have become due and payable and shall not have been fully
paid, the Trustee shall forthwith give notice thereof to the Company Mortgage Trustee
signed by its President. a Vice President. a Senior Trust Officer or a Trust Officer.
specifying, with respect to principal of such First Mortgage Bonds. the principal amount
of First Mortgage Bonds then due and payable and the amount of funds required to make
such payment and, with respect to interest on such First Mortgage Bonds, the last date to
- 51 -Senes 20lOA Trusl Indenture
which interest has been paid and the amount of funds required to make such payment. In
the event that the Trustee shall have received wntten notice pursuant to Section 8.01 of
the Agreement to the effect that any Bonds are to be redeemed pursuant to Section 4.02
or Section 4.03 hereof, the Trustee shall fortwith give notice thereof to the Company
Mortgage Trustee specifying the principal amount, interest rate and redemption date of
Bonds so to be redeemed. Any such notice given by the Trustee shall be signed by its
President, a Vice President, an Assistant Vice President or an Assistant Treasurer thereof.
The Trustee shall incur no liabilty for failure to give any such notice, and such failure
shall have no effect on the obligations of the Company on any First Mortgage Bonds or
on the rights of the Trustee or of the Owners of Bonds.
Sectin 5J3. Additonal Collaeral. The Trustee and the Paying Agent shall take action
under any Additional Collateral, in accordance with the terms thereof and at the expense of the
Company, to the extent necessary in order to cause amounts in respect of the principal of and
interest on the Bonds to be payable by the Provider pursuant to the Additional Collateral to the
Owners of the Bonds. The Trustee shall not sell, assign, transfer or surrender any Additional
Collateral except to a successor Trustee hereunder and in accordance with the terms of the
Additional Collateral or the Agreement, as the case may be.
ARTICLE VI
DEPOSIT OF BOND PROCEEDS; FuND AND ACCOUNTS; REVENUES
Section 6.01. Creation of Bond Fund and Accounts; Credit Facili Fund; Rebate
Fund. (a) There is hereby created by the Issuer and ordered established a separate Bond Fund,
which shall be an Eligible Account, to be held by the Trustee and to be designated "City of
Forsyth, Montana, Pollution Control Revenue Refunding Bonds (A vista Corporation Colstrp
Project) Series 2010A Bond Fund" and therein a Prncipal Account and an Interest Account.
(b) There is hereby created by the Issuer and ordered established a separate CreditFacilty Fund, which shall be an Eligible Account, to be held by the Trustee and to be designated
"City of Forsyth, Montana, Pollution Control Revenue Refunding Bonds (Avista Corporation
Colstrip Project) Series 2010A Credit Facilty Fund."
(c) For purposes of complying with the requirements of Section 148 of the Code, the
Rebate Fund is hereby established with the Trustee to make arbitrage payments as contemplated
by the Tax Certificate. The Trustee shall deposit such amounts into the Rebate Fund and pay
such amounts from the Rebate Fund as it shall be directed by an Authorized Company
Representative. The Trustee shall have no responsibilty for calculating the amount of arbitrage
rebate with respect to the Bonds.
Section 6.02. Dispositon of Bond Proceeds and Certain Other Moneys. In accordance
with the direction contained in Section 3.03 of the Agreement, simultaneously with the initialauthentication and delivery of the Bonds: (i) there shall be deposited with the Pror Trustee in
the Prior Bond Fund and used for the purpse of the Refunding of the Pror Bonds, an amount
equal to $66,700,00, representing the principal proceeds received from the sale of the Bonds,
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and (ii) there shall be deposited into the Interest Account the accrued interest on the Bonds, if
any, from the Issue Date to the date of the initial authentication and delivery of the Bonds.
Sectin 6.03. Deposits into the Bond Fund; Use of Moneys in the Bond Fund. (a) The
Trustee shall deposit into the Prncipal Account of the Bond Fund (i) payments made by the
Company pursuant to the Agreement in respect of principal of or premium payable on the Bonds,
including any payments of principal of and premium, if any, on Additional Collateral, (ii)
moneys drawn under or paid on the Credit Facility for the payment of the principal of or
premium, if any, on the Bonds upon redemption, maturity or acceleration of maturity and (iii)
any other moneys required by this Indenture or the Agreement to be deposited into the Principal
Account of the Bond Fund. The Trutee shaH keep separate (A) moneys drawn under the Credit
Facility and (B) Available Moneys and shall not commingle such moneys or Available Moneys,
as the case may be, with other moneys in the Principal Account.
(b) The Trustee shall deposit into the Interest Account of the Bond Fund (i) payments
made by the Company pursuant to the Agreement in respect of interest on the Bonds, including
any payments of interest on Additional Collateral, (ii) moneys drawn under or paid on the Credit
Facility to pay interest on the Bonds when due and (iii) any other moneys required by this
Indenture or the Agreement to be deposited into the Interest Account of the Bond Fund. The
Trustee shall keep separate (A) moneys drawn under the Credit Facilty and (B) A vailable
Moneys and shall not commingle such moneys or Available Moneys, as the case may be, with
other moneys in the Interest Account.
(c) Except as provided in Sections 6.04,6.05, 9.10 and 10.04 and Article VII hereof
and in the Tax Certificate, moneys in the Prncipal Account of the Bond Fund shall be used
solely for the payment of principal of and premium if any, on the Bonds as the same shall
become due and payable at matunty, upon redemption or upon acceleration of maturity. The
Trustee shall at all times maintain accurate records of deposits into the Prncipal Account, and
the sources and timing of such deposits, and shall apply moneys from such sources on any Bond
Payment Date in the following order of priority:
(i) A vail able Moneys;
(ii) Moneys drawn under or paid on the Credit Facility on which neither the
Company nor any affiliate thereof is the obligor; and
(iii) Any other moneys paid by the Company pursuant to the Agreement or any
other moneys in the Bond Fund;
provided, however, that if the Credit Facility then in effect consists of a direct pay letter of credit,
the Trustee shall apply moneys drawn under the Credit Facilty prior to the application of
moneys from any other sources. In the event that any principal payment by the Company
pursuant to the Agreement is on deposit in the Prncipal Account on a Bond Payment Date but
does not constitute Available Moneys, or is received by the Trustee subsequent to such Bond
Payment Date, and the Trustee has paid principal of the Bonds from the source described in
clause (ii) of this paragraph, the Trustee shall, subject to Section 9.10 hereof, transfer to the
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Provider on (or as promptly as practicable after) such Bond Payment Date or the date of receipt,
if different, the amount of such principal of Bonds paid from such source and not reimbursed to
the Provider under the Credit Facility Agreement as certfied in writing to the Trustee and the
Company by the Provider.
(d) Except as provided in Sections 6.04,6.05,9.10 and 10.04 and Article VII hereof
and in the Tax Certificate, moneys in the Interest Account of the Bond Fund shall be used solely
to pay interest on the Bonds when due. The Trustee shall at all times maintain accurate records
of deposits into the Interest Account and the sources of such deposits, and shall apply moneys
from such sources on any Bond Payment Date in the following order of priority:
(i) A vailable Moneys;
(ii) Moneys drawn under or paid on the Credit Facilty on which neither the
Company nor any affiiate thereof is the obligor; and
(iii) Any other moneys paid by the Company pursuant to the Agreement or any
other moneys in the Bond Fund;
provided, however, that if the Credit Facilty then in effect consists of a direct pay letter of credit,
the Trustee shall apply moneys drawn under the Credit Facility prior to the application of
moneys from any other sources. In the event that any interest payment by the Company pursuant
to the Agreement is on deposit in the Interest Account on a Bond Payment Date but does not
constitute Available Moneys, or is received by the Trustee subsequent to such Bond Payment
Date, and the Trustee has paid interest on the Bonds from the source described in clause (ii) of
this paragraph, the Trustee shall, subject to Section 9.10 hereof, transfer to the Provider on (or as
promptly as practicable after) such Bond Payment Date or the date of receipt, if different, the
amount of such interest on Bonds paid from such source and not reimbursed to the Provider
under the Credit Facility Agreement, as certified in writing to the Trustee by the Provider.
The Trustee shall identify appropriate sources of moneys and apply such moneys to pay
principal of, and premium, if any, and interest on, the Bonds as and when required by the terms
of this Indenture.
Section 6.04. Bonds Not Presented for Payment of Principal. In the event any Bonds
shall not be presented for payment when the principal thereof becomes due, either at maturity or
at the date fixed for redemption thereof or the acceleration of maturity or in the event that any
interest thereon is unclaimed, if moneys suffcient to pay such Bonds or interest are held by the
Trustee, the Trustee shall segregate and hold such moneys in trust (but shall not invest such
moneys), without liability for interest thereon, for the benefit of Owners of such Bonds who shall
except as provided in the following paragraph, thereafter be restricted exclusively to such fund or
funds for the satisfaction of any claim of whatever nature on their part under this Indenture or
relating to said Bonds or interest. Such Bonds which shall not have been so presented for
payment shall be deemed paid for any purposes of this Indenture.
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Any moneys which the Trustee shall segregate and hold in trust for the payment of the
principal of or interest on any Bond and remaining unclaimed for two years (subject to
applicable escheat laws) after such principal or interest has become due and payable shall be paid
by the Trustee to the Company upon request of an Authorized Company Representative to the
Trustee, (i) be paid to the Provider to the extent of the amount, if any, certified in writing by the
Provider to the Trustee and the Company to be payable under the Credit Facility Agreement, and
(ii) the balance, if any, shall be paid by the Trustee to the Company if consented to in writing by
the Provider. After the payment of such unclaimed moneys to the Company or the Provider, the
Owner of such Bond shall look only to the Company for payment, and then only to the extent of
the amount so repaid to the Provider and/or the Company, and the Company shall not be liable
for any interest thereon and shall not be regarded as a trustee of such money, and all liability of
the Issuer, the Trustee and the Provider with respect to such moneys shall thereupon cease.
Neither the Company nor the Issuer shall have any right, title or interest in or to any
moneys held by the Trustee pursuant to this Section. The Trustee shall not be liable to the Issuer
or any Owner for interest on funds held by it for the payment and discharge of the principal,
interest, or premium on any of the Bonds to any Owner.
Sectin 6.05. Payment to the Company. After the right, title and interest of the Trustee
in and to the Trust Estate and all covenants, agreements and other obligations of the Issuer to the
Owners shall have ceased, termnated and become void and shall have been satisfied and
discharged in accordance with Section 6.04 and Article VII hereof, and all fees, expenses and
other amounts payable to the Registrar, the Paying Agent, the Trustee, the Remarketing Agent,
the Provider and the Issuer pursuant to any provision of this Indenture or the Credit Facility
Agreement shall have been paid, any moneys remaining in the Bond Fund and the Rebate Fund
shall be paid to the Company upon request of an Authorized Company Representative, other than
any unclaimed moneys held pursuant to Section 6.04. The Trustee may conclusively rely on
certifcates of the Remarketing Agent and the Provider as to the amount of any fees, expenses
and other amounts owing to them.
ARTICLE VII
INVESTMENTS
Sectin 7.01. Investment of Moneys in Funds. Subject to Section 5.07 hereof and the
provisions of the Tax Certficate, moneys in the Bond Fund and the Rebate Fund may be
invested and reinvested in Investment Securities. Such investments shall be made by the Trustee
as specifically directed and designated by the Company in a certificate of an Authorized
Company Representative. Each such certficate shall contain a statement that each investmnt so
designated by the Company constitutes an Investment Security and can be made without
violation of any provision hereof or of the Agreement or of the Tax Certficate. The Trustee
shall be entitled to rely on each such certificate or advice and shall incur no liability for making
any such investment so designated or for any loss, fee, tax or other charge incurred in sellng
such investment or for any action taken pursuant to this Section that causes the Bonds to be
treated as "arbitrage bonds" within the meaning of Section 148 of the Code. No investment
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instructions shall be given by the Company if the investments to be made pursuant thereto would
violate any covenant set forth in Section 5.07 hereof or the provisions of the Agreement or the
Tax Certficate. The Trustee may act as principal or agent in the acquisition or disposition of
investments. The Trustee shall not be responsible for any loss on any investment made in
accordance herewith. The Trustee shall not invest any cash held by it hereunder in the absence
of timely and specific written direction from the Company or the Provider. The Issuer and the
Company acknowledge that regulations of the Comptroller of the Currency grant the nght to
receive brokerage confirmations of the security transactions as they occur, at no additional cost.
To the extent pennitted by law, the Issuer and the Company specifically waive compliance with
12 C.F.R. 12 and hereby notifies the Trustee that no brokerage confirmations need be sent
relating to the security transactions as they occur.
Moneys in the Credit Facility Fund, including money provided pursuant to a draw on the
Credit Facility to pay the purchase of Bonds pursuant to Section 3.01 or Section 3.02 hereof and
proceeds of Remarketed Bonds shall be held uninvested.
Sectin 7.02. Conversion of Investment to Cash. As and when any amounts so invested
may be needed for disbursements from the Bond Fund or the Rebate Fund, the Trustee shall
cause a suffcient amount of such investments to be sold or otherwise converted into cash to the
credit of such fund. As long as no Event of Default shaH have occurred and be continuing, the
Company shaH have the right to designate the investments to be sold and to otherwise direct the
Trustee in the sale or conversion to cash of such investments (otherwise, the Provider shall have
the right to make such designations and give such directions; provided, that if, at the time there is
no Provider or a Provider Default shall have occurred and be continuing, the Trustee shall sell or
otherwise convert into cash all such investments and hold such cash uninvested in the applicable
fund or funds); provided that the Trustee shall be entitled to conclusively assume the absence of
any Event of Default unless it has notice thereof within the meaning of Section 10.05 hereof.
Section 7.03. Credit for Gains and Charge for Losses. Gains from investments shall be
credited to and held in and losses shall be charged to the fund or account from which the
investment is made.
ARTICLE VIII
DEFEASANCE
If the Issuer shaH payor cause to be paid to the Owner of any Bond secured hereby the
principal of, and premium, if any, and interest due and payable, and thereafter to become due and
payable, upon such Bond or any portion of such Bond in an Authonzed Denomination thereof,
such Bond or portion thereof shall cease to be entitled to any lien, benefit or security under this
Indenture.
If the Issuer shall payor cause to be paid the principal of, and premium if any, and
interest due and payable on, all Outstanding Bonds, and thereafter to become due and payable
thereon, and shaH payor cause to be paid all other sums payable hereunder by the Issuer,
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including any necessary and proper fees, compensation and expenses of the Trustee, the Paying
Agent, the Registrar, the Provider and the Remarketing Agent, then, and in that case, the right,
title and interest of the Trustee in and to the Trust Estate shall thereupon cease, terminate and
become void. In such event, the Trustee shan assign, transfer and tum over the Trust Estate to
the Company and any surplus in the Bond Fund and any balance remaining in any other fund
created under this Indenture shall be paid to the Company upon the request of an Authonzed
Company Representative, other than any unclaimed moneys held pursuant to Sections 3.06d)
and 6.04. The Trustee may conclusively rely on certificates of the Remarketing Agent and the
Provider as to the amount of any fees, expenses and other amounts owing to them.
Notwithstanding anything herein to the contrary, in the event that the principal of and interest
due on any Bonds shall be paid by the Provider pursuant to the Credit Facility and the Provider
has not been reimbursed for such payment or arrngements satisfactory to the Provider for such
reimbursement have not been made, such Bonds shall remain Outstanding for all purposes, shall
not be defeased or otherwise satisfied and shall not be considered paid by the Issuer, and the
assignment and pledge of the Trust Estate and all covenants, agreements and other obligations of
the Issuer to such Owners shall continue to exist and shall run to the benefit of the Provider and
the Provider shall be subrogated to the rights of such Owners.
All or any portions of Bonds (in Authorized Denominations) shall, prior to the matunty
or redemption date thereof, be deemed to have been paid within the meaning of this Artcle VIl
and for all purposes of this Indenture when:
(a) in the event said Bonds or portions thereof have been selected for
redemption in accordance with Section 4.04 hereof, the Trustee shall have given, or the
Company shall have given to the Trustee in form satisfactory to it irrevocable instrctions
to give, on a date in accordance with the provisions of Section 4.05 hereof, notice of
redemption of such Bonds or portons thereof;
(b) there shall have been deposited with the Trustee moneys, which constitute
Available Moneys or moneys drawn on the Credit Facilty (other than a Credit Facility
that consists solely of a facility on which either the Company or any affiiate thereof is
the obligor), in an amount suffcient (without relying on any investment income) to pay
when due the principal of, and premium, if any, and interest due and to become due
(which amount of interest to become due shall be calculated at the Maximum Interest
Rate unless the interest rate borne by all of such Bonds is not subject to adjustment prior
to the maturity or redemption thereof, in which case the amount of interest shall be
calculated at the rate borne by such Bonds) on said Bonds or portons thereof on and pnor
to the redemption date or maturity date thereof, as the case may be; provided, however,
that if such payment is to be made upon redemption pursuant to Section 4.02 hereof, such
payment shall be made from Available Moneys;
(c) in the event said Bonds or portions thereof do not mature and are not to be
redeemed within the next succeeding 60 days, the Issuer at the direction of the Company
shall have given the Trustee in form satisfactory to it irrevocable instructions to give, as
soon as practicable in the same manner as a notice of redemption is given pursuant to
Section 4.05 hereof, a notice to the Owners of said Bonds or portions thereof and to the
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Provider that the deposit required by clause (b) above has been made with the Trustee
and that said Bonds or portions thereof are deemed to have been paid in accordance with
this Article VIII and stating the maturity or redemption date upon which moneys are to be
available for the payment of the principal of, and premium, if any, and interest on, said
Bonds or portions thereof;
(d) the Issuer, the Company, the Trustee and the Provider shall have received
written evidence from Moody's, if the Bonds are then rated by Moody's, and S&P, if the
Bonds are then rated by S&P, that such action wil not result in a reduction, suspension or
withdrawal of the rating; and
(e) the Issuer, the Company, the Trustee, Moody's, ifthe Bonds are then rated
by Moody's, S&P, if the Bonds are then rated by S&P, and the Provider shall have
received a Favorable Opinion of Bond Counsel with respect to such deposit.
In the event the requirements of the next succeeding paragraph can be satisfied, the
preceding paragraph shaH not apply, and the following two paragraphs shall be applicable (the
final two paragraphs of this Section shall apply in either case).
Any Bond shall be deemed to be paid within the meaning of this Article VII and for all
purposes of this Indenture when:
(a) payment of the principal of and premium if any, on such Bond, plus
interest thereon to the due date thereof (whether such due date is by reason of maturity or
acceleration or upon redemption as provided herein) either (A) shaH have been made or
caused to be made in accordance with the terms thereof or (B) shall have been provided
for by irrevocably depositing with the Trustee in trust and irrevocably set aside
exclusively for such payment (I) moneys, which shall be Available Moneys or moneys
drawn under the Credit Facility (other than a Credit Facility that consists solely of a
facilty on which either the Company or any affliate thereof is the obligor), sufficient to
make such payment, and/or (2) Government Obligations purchased with Available
Moneys or moneys drawn under the Credit Facility (other than a Credit Facility that
consists solely of a facility on which either the Company or any afliate thereof is the
obligor) and maturing as to principal and interest in such amount and at such time as wi)
insure, without reinvestment, the availabilty of suffcient moneys to make such payment;
provided, however, that if such payment is to be made upon redemption pursuant to
Section 4.02 hereof, such payment shall be made from Available Moneys or from
Government Obligations purchase with Available Moneys;
(b) all necessary and proper fees, compensation and expenses of the Issuer,
the Trustee, the Remarketing Agent, the Provider, the Paying Agent and the Registrar
pertaining to the Bonds with respect to which such deposit is made shall have been paid
or the payment thereof provided for to the satisfaction of the Trustee, the Trustee being
able to conclusively rely on certificates of the Remarketing Agent and the Provider as to
the amount of any fees, compensation and expenses owing to them; and
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(c) an opinion of an independent public accountant of nationally recognized
standing, selected by the Company, to the effect that such moneys and/or Government
Obligations wil insure, without reinvestment, the availabilty of sufficient moneys to
make such payment, and a Favorable Opinion of Bond Counsel with respect to such
deposit shall have been deliyered to the Trustee. At such times as a Bond shall be
deemed to be paid hereunder, as aforesaid, such Bond shall no longer be secured by or
entitled to the benefits of this Indenture, except for the purposes of registration and
exchange of Bonds and of any such payment from such moneys or Government
Obligations.
The foregoing provisions of this paragraph shall apply only if (x) such Bond is to mature or be
called for redemption prior to the next date upon which such Bond is subject to purchase
pursuant to Section 3.01 and 3.02 hereof; and (y) the Company has waived, to the satisfaction of
the Trustee, its right to adjust the interest rate borne by such Bond.
No deposit under clause (a)(B) of the preceding paragraph shall be deemed a payment of
such Bonds as aforesaid until: (i) proper notice of redemption of such Bonds shall have been
previously given in accordance with Section 4.05 hereof, or in the event said Bonds are not to be
redeemed within the next succeeding 60 days, until the Company shall have given the Trustee on
behalf of the Issuer, in form satisfactory to the Trustee, irrevocable instructions to notify, as soon
as practicable, the Owners of the Bonds and the Provider in accordance with Section 4.05 hereof,
that the deposit required by clause (a)(B) above has been made with the Trustee and that said
Bonds are deemed to have been paid in accordance with this Artcle VII and stating the maturity
or redemption date upon which moneys are to be available for the payment of the principal of
and the applicable redemption premium, if any, on said Bonds, plus interest thereon to the due
date thereof; or (ii) the maturity of such Bonds.
Moneys deposited with the Trustee pursuant to this Article VII shall not be withdrawn or
used for any purpose other than, and shall be held in trust for, the payment of the principal of,
premium, if any, and interest on said Bonds or portions thereof, or for the payment of the
purchase price of Bonds in accordance with Section 3.03 hereof; provided that such moneys, if
not then needed for such purpose, shall to the extent practicable, be invested and reinvested in
Government Obligations matunng on or prior to the earlier of (i) the date moneys may be
required for the purchase of Bonds puruant to Section 3.03 hereof or (ii) the Interest Payment
Date next succeeding the date of investment or reinvestment, and interest earned from such
investments shall be paid over to the Company, as received by the Trustee, free and clear of any
trust, lien or pledge. If payment of less than all the Bonds is to be provided for in the manner
and with the effect provided in this Article VII, the Trustee shall select such Bonds or portion of
such Bonds in the manner specified by Section 4.04 hereof for selection for redemption of less
than all Bonds in the principal amount designated to the Trustee by the Company.
Notwithstanding that all or any portion of the Bonds are deemed to be paid within the
meaning of this Artcle VII, the provisions of this Indenture relating to (i) the registration and
exchange of Bonds, (ii) the delivery of Bonds to the Trustee for purchase and the related
obligations of the Trustee with respect thereto, (iii) replacement of mutilated, lost, destroyed or
stolen Bonds, (iv) payment of the Bonds from the moneys deposited as descnbed in this Article
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and (v) payment, compensation, reimbursement and indemnification of the Trustee, shall remain
in full force and effect with respect to all Bonds until the Maturity Date or the last date fixed for
redemption of all Bonds prior to maturity and, in the case of clause (v), shall survive the
termination of this Indenture.
ARTICLE ix
DEFAULTS AND REMEDIES
Sectin 9.01. Events of Default. Each of the following events shall constitute and is
referred to in this Indenture as an "Event of Default":
(a) a failure to pay the principal of or premium, if any, on any of the Bonds
when the same shall become due and payable at maturity, upon redemption or otherwise,
subject, however, to Section 3.04b) hereof;
(b) a failure to pay an installment of interest on any of the Bonds, which
failure shall continue for a period of (i) 60 days after the date upon which such interest
has become due and payable if the Bonds bear interest at a Term Interest Rate, or (ii) two
Business Days after the date upon which such interest has become due and payable if the
Bonds bear interest at a Aexible Interest Rate, a Daily Interest Rate or a Weekly Interest
Rate, subject, however, to Section 3.04b) hereof;
(c) a failure to pay an amount due in respect of the purchase price of Bonds
pursuant to Section 3.01 and Section 3.02 hereof after such payment has become due and
payable;
(d) a failure by the Issuer to observe and peiform any covenant, condition,
agreement or provision (other than as specified in Section 9.01(a), Section 9.01(b) and
Section 9.0l(c)) contained in the Bonds or in this Indenture on the part ofthe Issuer to be
observed or peiformed, which failure shall continue for a period of 90 days after written
notice, specifying such failure and requesting that it be remedied, shall have been given
to the Issuer and the Company by the Trustee by registered or certfied mail which may
give such notice in its discretion and shall give such notice at the written request of the
Owners of not less than 33-113% in principal amount of the Bonds then Outstanding,
unless the Trustee, or the Trustee and the Owners of a principal amount of Bonds not less
than the principal amount of Bonds the Owners of which requested such notice, as the
case may be, shall agree in writing to an extension of such period prior to its expiration;
provided however, that the Trustee, or the Trustee and the Owners of such principal
amount of Bonds, as the case may be, shall be deemed to have agreed to an extension of
such period if corrective action is initiated by the Issuer or the Company on behalf of the
Issuer within such period and is being diligently pursued, which extension shall end 180
days after the date of the written notice of default;
(e) an "Event of Default" under the Agreement;
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(f) if the Trustee holds First Mortgage Bonds or Additional Collateral, a
"Completed Default" as such term is defined in Section 65 of the Company Mortgage or
an event of default under the Company Mortgage applicable to the Additional Collateral;
or
(g) the Trustee's receipt of written notice (which may be given by facsimile)
from the Provider of an event of default under and as defined in the Credit Facility
Agreement and stating that such notice is given pursuant to Section 9.01 of the Indenture
and directing acceleration.
If on the date on which payment of principal of, interest on or other amount in any
respect of the Bonds is due, suffcient moneys are not available to make such payment, the
Trustee shall promptly give telephonic, electronic mail or facsimile notice of such insufficiency
to the Company (in the case of telephonic notice, given to the person at the telephone number
provided for in Section 3.06(c) hereof).
Section 9.02. Acceleration; Other Remedies. (a) If an Event of Default described in
Section 9.01(a), Section 9.01 (b), Section 9.01(c), Section 9.01(f) or Section 9.01 (g) hereof or anEvent of Default described in Section 9.01(e) hereof resulting from an "Event of Default" under
Section 7.01(a) or Section 7.01(c) of the Agreement (to the extent that the Trustee shall have
received written notice or be deemed to have notice pursuant to the provisions of Section 10.05
hereof) has occurred and has not been cured or waived, then (i) the Trustee may, with the
consent of the Provider (unless a Provider Default shall have occurred and be continuing) or (ii)
the Trustee shall (A) upon the written direction of the Provider (unless a Provider Default shall
have ocurred and be continuing), (B) upon the written request of the Owners of not less than 33-
1/3% in principal amount of the Bonds then Outstanding and with the consent of the Provider
(unless a Provider Default shall have occurred and be continuing), or (C) if the Trustee then
holds First Mortgage Bonds, upon the acceleration of the First Mortgage Bonds pursuant to the
provisions of the Company Mortgage, by written notice by registered or certified mail to the
Issuer, the Company and the Provider, declare the Bonds to be immediately due and payable and,
during the period the Credit Facility is in effect, with accrued interest on the Bonds payable on
the Bond Payment Date fixed pursuant to the last paragraph of Section 9.10 hereof, anything in
this Indenture or in the Bonds to the contrary notwithstanding, and the Trustee shaH give notice
thereof to the Issuer, the Company, the Remarketing Agent and the Provider and shall give
notice thereof by Mail to all Owners of Outstanding Bonds, and the Trustee shall as promptly as
practicable draw moneys under the Credit Facility to the extent available thereunder, in an
amount suffcient to pay principal of and accrued interest on the Bonds payable on the Bond
Payment Date established by the Trustee pursuant to the last paragraph of Section 9.10 hereof.
(b) The provisions of Section 9.02(a) are subject further to the condition that if, so long
as no Credit Facility is in effect, after the principal of the Bonds shall have been so declared to be
due and payable and before any judgment or decree for the payment of the moneys due shall
have been obtained or entered as hereinafter provided, the Issuer shall cause to be deposited with
the Trustee a sum sufficient to pay all matured installments of interest upon all Bonds, any
unpaid purchase price and the principal of any and all Bonds which shall have become due
otherwise than by reason of such declaration (with interest upon such principal and, to the extent
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permissible by law, on overdue installments of interest, at the rate per annum then borne by the
Bonds) and such amount as shall be suffcient to cover reasonable compensation and
reimbursement of expenses payable to the Trustee and all Events of Default (other than
nonpayment of the principal of Bonds which shall have become due by said declaration) shall
have been remedied, then, in every such case, such Event of Default shall be deemed waived and
such declaration and its consequences rescinded and annulled, and the Trustee shall promptly
give written notice of such waiver, rescission or annulment to the Issuer and the Company, and
shall give notice thereof by Mail to all Owners of Outstanding Bonds; provided, however, that no
such waiver, rescission and annulment shall extend to or affect any other Event of Default or
subsequent Event of Default or impair any right, power or remedy consequent thereon.
The provisions of Section 9.02(a) are further subject to the condition that, if an Event of
Default described in clause (g) of Section 9.01 hereof shall have occurred and if the Trustee shall
thereafter have received written notice from the Provider (i) that the notice which caused such
Event of Default to occur has been withdrawn and (ii) that the amounts available to be drawn on
the Credit Facility to pay (A) the principal of the Bonds or the porton of purchase price equal to
principal and (B) interest on the Bonds and the portion of purchase price equal to accrued interest
have been reinstated to an amount equal to the principal amount of the Bonds Outstanding plus
accrued interest thereon for the applicable Interest Coverage Period at the Interest Coverage
Rate, then, in every such case, such Event of Default shall be deemed waived and its
consequences rescinded and annulled, and the Trustee shall promptly give written notice of such
waiver, rescission and annulment to the Issuer, the Company, the Provider and the Remarketing
Agent, and, if notice of the acceleration of the Bonds shall have been given to the Owners of
Bonds, shall give notice thereof by Mail to all Owners of Outstanding Bonds; but no such
waiver, rescission and annulment shall extend to or affect any subsequent Event of Default or
impair any right or remedy consequent thereon.
If the Trustee holds First Mortgage Bonds or Additional Collateral, the provisions of
Section 9.02(a) are, further, subject to the condition that any waiver of any "Completed Default"
or event of default under the Company Mortgage and a rescission and annulment of its
consequences (assuming that the First Mortgage Bonds or the Additional Collateral are not
otherwise to be mandatorily redeemed at the time of such waiver, rescission and annulment)
shall constitute a waiver of the corresponding Event or Events of Default and a rescissi()n and
annulment of the consequences thereof; provided, however, in the event that the Credit Facility
has been drawn upon to pay the principal of and interest on the Bonds upon acceleration, no
"Completed Defaull" or event of default under the Company Mortgage shall be waived unless
(in addition to the applicable conditions as aforesaid) the Trustee shall have received written
notice from the Provider that the amounts available to be drawn on the Credit Facility to pay
(A) the principal of the Bonds or the portion of purchase price equal to principal and (B) interest
on the Bonds and the portion of purchase price equal to accrued interest have been reinstated to
an amount equal to the principal amount of the Bonds Outstanding plus accrued interest thereon
for the applicable Interest Coverage Period at the Interest Coverage Rate. The Trustee shall
prom ptl y give written notice of such waiver, rescission or annulment to the Issuer, the Company
and the Provider and shall give notice thereof by Mail to all Owners of Outstanding Bonds;
provided that it is deemed to have notice thereof under Section 10.05 hereof; but no such waiver,
- 62-Series 2OlOA Trust Indenture
rescission and annulment shall extend to or affect any other Event of Default or any subsequent
Event of Default or impair any right or remedy consequent thereon.
(c) Upon the occurrence and continuance of any Event of Default, then and in every
such case the Trustee in its discretion, with the consent of the Provider (unless a Provider Default
shall have occurred and be continuing) may, and upon the wntten request of the Owners of not
less than 33-113% in principal amount of the Bonds then Outstading and with the consent of the
Provider (unless a Provider Default shall have occurred and be continuing) and upon receipt of
indemnity to its satisfaction (except against negligence or wilful misconduct) shall in its own
name and as the Trustee of an express trust:
(i) by mandamus, or other suit, action or proceeding at law or in equity,
enforce all rights of the Owners under, and require the Issuer, the Company or the
Provider to carr out any agreements with or for the benefit of the Owners of Bonds and
to perform its or their duties under, the Act, the Agreement, this Indenture, the Credit
Facility and the Credit Facility Agreement, provided that any such remedy may be taken
only to the extent permitted under the applicable provisions of the Agreement or this
Indenture, as the case may be;
(ii) bring suit upon the Bonds;
(ii) by action or suit in equity require the Issuer to account as if it were the
trustee of an express trust for the Owners of Bonds;
(iv) by action or suit in equity enjoin any acts or things which may be unlawful
or in violation of the rights of the Owners of Bonds; or
(v) if the Trustee holds First Mortgage Bonds and except as otherwise limited
by this Indenture or the Company Supplemental Indenture, exercise any and all rights
then available to the Trustee as a holder of the First Mortgage Bonds under the Company
Mortgage.
Anything in this Indenture to the contrar notwithstanding, upon the occurrence and
continuance of an Event of Default, the Provider (unless a Provider Default shall have occurred
and be continuing) shall be entitled (subject to Section 9.04) to control and direct the
enforcement of all rights and remedies granted to the Owners of the Bonds or the Trustee for the
benefit of such Owners under this Indenture and shall be entitled to consent to any request or
direction of the Owners as a condition to the effectiveness of any such request or direction.
(d) The Trustee shall waive any Event of Default hereunder and its consequences and
rescind any declaration of acceleration of principal upon (i) the written direction of the Provider
(unless a Provider Default shall have occurred and be continuing) and (ii) the written request of
the Owners of (A) more than a majority in principal amount of all Outstanding Bonds in respect
of which default in the payment of pnncipal or purchase pnce of or interest on the Bonds exists
or (B) more than a majority in principal amount of all Outstanding Bonds in the case of any other
Event of Default; provided, however, that any Event of Default under Section 9.01(g) hereof may
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be waived only as provided in the second paragraph of 9.02(b); provided, further, that (x) there
shall not be waived any Event of Default specified in Section 9.01(a), Section 9.01 (b) or
Section 9.01 (c) hereof unless prior to such waiver or rescission the Issuer shall have caused to be
deposited with the Trustee a sum sutlcient to pay all matured installments of interest upon all
Bonds and the pnncipal and purchase price of any and all Bonds which shall have become due
otherwise than by reason of such declaration of acceleration (with interest upon such principal
and, to the extent permissible by law, on overdue installments of interest, at the rate per annum
then borne by the Bonds), (y) in the event that the Credit Facilty has been drawn upon to pay the
principal of and interest on the Bonds upon acceleration, no Event of Default shall be waived
unless (in addition to the applicable conditions as aforesaid) the Trustee shall have received
written notice from the Provider that the amounts available to be drawn on the Credit Facilty to
pay (A) the principal of the Bonds or the porton of purchase price equal to principal and
(B) interest on the Bonds and the porton of purchase price equal to accrued interest have been
reinstated to an amount equal to the principal amount of the Bonds Outstanding plus accrued
interest thereon for the applicable Interest Coverage Period at the Interest Coverage Rate and (z)
no Event of Default shall be waived unless (in addition to the applicable conditions as aforesaid)
there shall have been deposited with the Trustee such amount as shall be suffcient to cover
reasonable compensation and reimbursement of expenses payable to the Trustee. In case of any
waiver or rescission described above, or in case any proceeding taken by the Trustee on account
of any such Event of Default shall have been discontinued or concluded or determined adversly,
then and in every such case the Issuer, the Trustee and the Owners of Bonds shall be restored to
their former positions and rights hereunder, respectively; provided,further, that no such waiver
or rescission shall extend to any subsequent or other Event of Default, or impair any right
consequent thereon.
(e) Nothing herein shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Owner of Bonds any plan of reorganization, arrngement,
adjustment, or composition affecting the Bonds or the rights of any Owner of Bonds thereof, or
to authorize the Trustee to vote in respect of the claim of any Owner of Bonds in any such
proceeding without the approval of the Owners of Bonds so affected.
Section 9.03. Restoration to Former Position. In the event that any proceeding taen by
the Trustee to enforce any right under this Indenture shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to the Trustee, then the Issuer, the
Trustee and the Owners of Bonds shall be restored to their former positions and rights hereunder,
respectively, and all rights, remedies and powers of the Trustee shall continue as though no such
proceeding had been taen.
Sectin 9.04. Owners~ Right to Direct Proceedings. Anything in this Indenture to the
contrar notwithstanding, upon the occurrence and continuance of an Event of Default, the
Provider (provided that a Provider Default shall not have occurred and be continuing) or the
Owners of a majority in principal amount of the Bonds then Outstanding, with the consent of the
Provider (provided that a Provider Default shall not have occurred and be continuing), shall have
the right, by an instrument in writing executed and delivered to the Trustee and upon furnishing
to the Trustee indemnity satisfactory to it (except against negligence or wilful misconduct), to
direct the time, method and place of conducting all remedial proceedings available to the Trustee
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under this Indenture or exercising any trust or power conferred on the Trustee by this Indenture;
provided that such direction shall not be other than in accordance with the provisions of law, the
Agreement and this Indenture and shall not result in any personal liability of the Trustee.
Section 9.05. Limitn on Owners' Right to Instiute Proceedings. No Owner shall
have any right to institute any suit, action or proceeding in equity or at law for the execution of
any trust or power hereunder, or any other remedy hereunder or in the Bonds, unless such Owner
previously shall have given to the Trustee written notice of an Event of Default as herein above
provided and unless the Owners of not less than 33-113% in principal amount of the Bonds then
Outstanding shall have made written request of the Trustee so to do after the right to institute
said suit, action or proceeding under Section 9.02 hereof shall have accrued, and shall have
afforded the Trustee a reasonable opportunity to proceed to institute the same in either its or their
name, and unless there also shall have been offered to the Trustee security and indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby
(except against negligence or wilful misconduct), and the Trustee shall not have complied with
such request within a reasonable time; and such notification, request and offer of indemnity are
hereby declared in every such case, at the option of the Trustee, to be conditions precedent to the
institution of said suit, action or proceeding, it being understood and intended that no one or
more of the Owners shall have any right in any manner whatever by his or their action to affect,
disturb or prejudice the security of this Indenture, or to enforce any right hereunder or under the
Bonds, except in the manner herein provided, and that all suits, actions and proceedings at law or
in equity shall be instituted, had and maintained in the manner herein provided and for the equal
benefit of all Owners.
Section 9.06. No Impairment of Right to Enforce Payment. Notwithstanding any other
provision in this Indenture, the right of any Owner to receive payment of the principal or
purchase price of, and premium, if any, and interest on, its Bond, on or after the respective due
dates expressed therein, or to institute suit for the enforcement of any such payment on or after
the respective due dates expressed therein, shall not be impaired or afected without the consent
of such Owner.
Sectin 9.07. Proceedings by Trustee Without Possession of Bond. All rights of action
under this Indenture or under any of the Bonds secured hereby which are enforceable by the
Trustee may be enforced by it without the possession of any of the Bonds, or the production
thereof at the tral or other proceedings relative thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the equal and ratable benefit of the
Owners, subject to the provisions of this Indenture.
Sectin 9.08. No Remedy Exclusive. Except as provided in Section 2.12, no remedy
herein conferred upon or reserved to the Trustee or to the Owners is intended to be exclusive of
any other remedy or remedies, and each and every such remedy shall be' cumulative, and shall be
in addition to every other remedy given hereunder or under the Agreement, or now or hereafter
existing at law or in equity or by statute; provided. however, that any conditions set forth herein
to the taking of any remedy to enforce the provisions of this Indenture, the Bonds or the
Agreement shall also be conditions to seeking any remedies under any of the foregoing pursuant
to this Section 9.08.
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Section 9.09. No Waiver of Remedies. No delay or omission of the Tnistee, the Provider
or of any Owner to exercise any right or power accruing upon any Event of Default shall impair
any such right or power or shall be construed to be a waiver of any such Event of Default, or an
acquiescence therein; and every power and remedy given by this Article ix to the Trustee, the
Provider and to the Owners, respectively, may be exercised from time to time and as often as
may be deemed expedient.
Section 9.10. Applicatin of Moneys. Any moneys received by the Trustee, by any
receiver or by any Owner pursuant to any right given or action taken under the provisions of this
Article ix, after payment of the fees, costs and expenses, liabilities and advances incurred or
made by the Trustee or its agents or counsel (provided that moneys received under the Credit
Facility for the principal of interest on the Bonds, remarketing proceeds or other moneys held for
Bonds not presented for payment or deemed paid pursuant to Section 3.06d), Section 6.04 or
Article VII hereof shall not be used for purposes other than payment of such Bonds), shall be
deposited in the Bond Fund and all moneys so deposited in the Bond Fund during the
continuance of an Event of Default (other than moneys for the payment of Bonds which had
matured or otherwise become payable prior to such Event of Default or for the payment of
interest due prior to such Event of Default) shall be applied as follows:
(a) Unless the principal of all the Bonds shall have been declared due and
payable, all such moneys shall be applied (i) first, to the payment to the persons entitled
thereto of all installments of interest then due on each Bond, with interest on overdue
installments of interest, if lawful at the rate per annum then borne by such Bond, in the
order of matunty of the installments of such interest and, if the amount available shall not
be sufficient to pay in full any particular installment of interest, then to the payment
ratably, according to the amounts due on such installment, and Oi) second, to the payment
to the persons entitled thereto of the unpaid principal of any of the Bonds which shall
have become due (other than Bonds called for redemption for the payment of which
money is held pursuant to the provisions of this Indenture) with interest on each Bond at
its rate from the respective dates upon which it became due and, if the amount available
shall not be sufficient to pay in full Bonds due on any partcular date, together with such
interest, then to the payment ratably, according to the amount of principal and interest
due on such date, in each case to the persons entitled thereto, without any discrimination
or privilege.
(b) If the principal of all the Bonds shall have been declared due and payable,
all such moneys shall be applied to the payment of the principal and interest then due and
unpaid upon the Bonds, with interest on overdue interest and principal as aforesaid,
without preference or priority of principal over interest or interest over principal or of any
installment of interest over any other installment of interest, or of any Bond over any
other Bond, ratably, according to the amounts due respectively for principal and interest,
to the persons entitled thereto without any discrimination or privilege.
(c) If the principal of all the Bonds shall have been declared due and payable,
and if such declaration shall thereafter have been rescinded and annulled under the
provisions of this Artcle then, subject to the provisions of subparagraph (b) of this
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Section 9.10 which shall be applicable in the event that the pnncipal of all the Bonds
shall later become due and payable, the moneys shall be applied in accordance with the
provisions of subparagraph (a) of this Section 9.10.
Anything herein to the contrry notwithstanding, in no event shall the Trustee draw on
the Credit Facility to make any payment of principal of Pledged Bonds or Bonds held of record
by the Company or any payment of interest on any Interest Payment Date on Bonds which as of
the Record Date for such Interest Payment Date were Pledged Bonds or Bonds held of record by
the Company.
Whenever moneys are to be applied pursuant to the provisions of this Section 9.10, such
moneys shall be applied at such times, and from time to time, as the Trustee shall determine,
having due regard to the amount of such moneys available for application and the likelihood of
additional moneys becoming available for such application in the future. Whenever the Trustee
shall apply such funds, it shall fix the Bond Payment Date upon which such application is to
commence and upon such Bond Payment Date interest on the amounts of principal and interest
to be paid on such Bond Payment Date shall cease to accrue. When the Credit Facility is in
effect, such Bond Payment Date may be fixed as the date of acceleration or the first or second
Business Day thereafter; provided, however, that the Bond Payment Date shall not be later than
the date of acceleration unless moneys shall be available to be drawn under the Credit Facilty to
pay accrued interest on the Bonds payable on such Bond Payment Date. The Trustee shall give
notice of the deposit with it of any such moneys and of the fixing of any such Bond Payment
Date by Mail to the Provider and all Owners of Outstanding Bonds and shaJl not be required to
make payment to any Owner until such Bond shall be presented to the Trustee for appropriate
endorsement or cancellation if fully paid.
Section 9.11. Severability of Remedies. It is the purpse and intention of this Artcle ix
to provide nghts and remedies to the Trustee, the Provider and the Owners which may be
lawfulJy granted under the provisions of the Act, but should any right or remedy herein granted
be held to be unlawful the Trustee, the Provider and the Owners shall be entitled, as above set
forth, to every other right and remedy provided in this Indenture and by law.
ARTICLE X
TRUSTEE; PAYING AGENT; REGISTRAR; REMARKETING AGENT
Section 10.01. Acceptance of Trusts. The Issuer appoints The Bank of New York Mellon
Trust Company, NA., as Trustee and Paying Agent. The Trustee hereby accepts and agrees to
execute the trusts hereby created, but only upon the additional terms set forth in this Artcle X, to
all of which the Issuer agrees and the respective Owners agree by their acceptance of delivery of
any of the Bonds. The Trustee, prior to the occurrence of an Event of Default and after the
curing of all Events of Default, undertkes to perform such duties and only such duties as are
specifically set forth herein and no implied covenant shall be read into this Indenture.
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Section 10.02. No Responsibilitis for Recitals. The recitals, statements and
representations contained in this Indenture or in the Bonds, save only the Trustee's
authentication upon the Bonds, shall not be taken and construed as made by or on the part of the
Trustee, and the Trustee does not assume, and shall not have, any responsibility or obligation for
the correctness of any thereof or for the validity, suffciency or priority of this Indenture, the
Agreement, or any First Mortgage Bonds, or the perfection or the maintenance of the perfection
of any security interest granted hereby, or for the vaJidity, enforceabilty or the priority of the
lien of the Company Mortgage.
Sectin 10.03. Limitons on Liability. The Trustee may execute any of the trusts or
powers hereof and perform the duties required of it hereunder by or through attorneys, agents,
receivers or employees, and shall be entitled to advice of counsel concerning all matters of trst
and its duties hereunder and shall not be answerable for the conduct of any such attorney, agent,
receiver or employee if appointed by the Trustee with reasonable care, and the advice of any
such counsel shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted hereunder in good faith and reliance thereon. The Trustee shall not be
answerable for the exercise of any discretion or power under this Indenture or for anything
whatsoever in connection with the trust created hereby, except only for its own negligence or
wiJful misconduct.
The Trustee shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Provider or the Owners of a majority in
aggregate pnncipal amount of the Bonds Outstanding relating to the time, method and place of
conducting any proceeding or any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture.
No provision of this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liabilty in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers.
The permissive rights of the Trustee to do things enumerated in this Trust Indenture shall
not be construed as a duty unless so specified herein.
The Trustee shall not be liable for any error of judgment made in goo faith by an officer,
director or employee unless it shall be proved that the Trustee was negligent in ascertaining the
pertnent facts.
The Trustee shan be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Provider or the Owners
pursuant to the provisions of this Trust Indenture unless such Owners shaH have offered to the
Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which
may be incurred therein or thereby, except for drawings on the Credit Facility and for declaring
an acceleration of the Bonds under Section 9.02 hereof.
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Whether or not expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of the Trustee shall be subject to the provisions of this Article X
and shaH extend to the Registrar, Paying Agents, and employees and agents ofthe Trustee.
The Trustee shall not be liable to the parties hereto or deemed in breach or default
hereunder if and to the extent its performance hereunder is prevented by reason offorce majeure.
The term "force majeure" means an occurrence that is beyond the control of the Trustee and
could not have been avoided by exercising due care. Force majeure shall include acts of God,
terrorism, war, riots, strikes, fire, floods, earhquakes, epidemics or other similar occurrences.
The Trustee agrees to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured electronic mail, facsimile transmission or other similar unsecured
electronic methods; provided, however, that, the Trustee shall have received an incumbency
certificate listing persons designated to give such instructions or directions and containing
specimen signatures of such designated persons, which such incumbency certficate shall be
amended and replaced whenever a person is to be added or deleted from the listing. If the Issuer
or the Company elects to give the Trustee electronic mail or facsimile instructions (or
instructions by a similar electronic method) and the Trustee acts upon such instructions, the
Trustee's understanding of such instructions shall be deemed controllng. The Trustee shaH not
be liable for any losses, costs or expenses arising directly or indirectly from the Trustee's
reliance upon and compliance with such instructions notwithstanding such instructions confict
or are inconsistent with a subsequent written instruction. The Issuer and the Company agree to
assume aH risks arising out of the use of such electronic methods to submit instructions and
directions to the Trustee, including without limitation the nsk of the Trustee acting on
unauthorized instructions, and the risk of interception and misuse by third parties.
The Trustee shall have no responsibility or liability with respect to any information,
statements or recitals in any offering memorandum or other disclosure material prepared or
distributed with respect to the issuance of these Bonds.
The Trustee shall not be accountable for the use or application by the Company of any of
the Bonds or the proceeds thereof or for the use or application of any money paid over by the
Trustee in accordance with the provisions of this Indenture.
In acting or omittng to act pursuant to the Agreement, the Tax Certificate or any other
document executed in connection herewith, the Trustee shall be entitled to all of the rights,
immunities and indemnities accorded to it under this Indenture and the Agreement, including,
but not limited to, this Artcle X.
Sectin 10.04. Compensatin.. Expenses and Advances. The Trustee, the Paying Agent
and the Registrar shall be entitled to such compensation as shall be agreed in writing with the
Company for their services rendered hereunder (not limited by any provision of law in regard to
the compensation of the trstee of an express trust) and to reimbursement for their actual out-of-
pocket expenses (including reasonable counsel fees and expenses) reasonably incurred in
connection therewith except as a result of their negligence or wilful misconduct. If the Issuer
shall fail to perform any of the covenants or agreements contained in this Indenture, the Trustee
- 69-Series 20lOA Trust Indenture
may, in its uncontrolled discretion and without notice to the Owners, at any time and from time
to time, make advances to effect pedormance of the same on behalf of the Issuer, but the Trustee
shall be under no obligation so to do; and any and all such advances shall bear interest at a rate
per annum equal to the lesser of the Maximum Interest Rate and the rate of interest then in effect
and as published in the Wall Street Journal as the composite prime lending rate for domestic
commercial loans; but no such advance shall operate to relieve the Issuer from any Event of
Default. In no event shall the Trustee be liable for any claims resulting from any decision on its
part not to advance funds as permitted in the immediately preceding sentence. In the Agreement,
the Company has agreed that it wil pay to the Trustee, the Paying Agent, and the Registrr
compensation and reimbursement of expenses and advances and certain indemnities, but the
Company may, without creating an Event of Default, contest in good faith the reasonableness of
any such expenses. If the Company shall have failed to make any payment to the Trustee, the
Paying Agent or the Registrar under the Agreement, then each of the Trustee, the Paying Agent
and the Registrar shall have, in addition to any other rights hereunder, a claim, prior to the claim
of the Owners, for the payment of their compensation and indemnitees and the reimbursement of
their expenses and any advances made by them, as provided in this Section 10.04, upon the
moneys and obligations in the Bond Fund, except for moneys received under the Credit Facilty,
remarketing proceeds and moneys or obligations deposited with or paid to the Trustee for the
redemption or payment of Bonds which are deemed to have been paid in accordance with Article
VIII hereof, orfunds held pursuant to Section 6.04 hereof.
Without prejudice to any other rights available to the Trustee under applicable law, when
the Trustee incurs expenses or renders services in connection with an Event of Default specified
in Section 7.01(c) of the Agreement, the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy, insolvency or other
similar law.
The provisions of this Section 10.04 shall survive the termination of this Indenture and
the earlier removal or resignation of the Trustee.
Section 10.05. Notice of Events of Default and Determination of Taxbility. The Trustee
shall not be required to take notice, or be deemed to have notice (a) of any default or Event of
Default, other than an Event of Default under Section 9.01(a), Section 9.01(b) or Section 9.01(c)
hereof, (b) of any Provider Default, (c) of any declaration of acceleration of any First Mortgage
Bonds, or (d) any waiver of any "Completed Default" under the Company Mortgage or any
rescission or annulment of its consequences unless a Responsible Officer of the Trustee shall
have been specifically notified in writing at the Principal Ofice of the Trustee, Attention:
Corprate Trust Administration, of such Event of Default or Provider Default by the Owners of
at least 25% in principal amount of the Bonds then Outstanding, the Issuer, the Company, the
Provider or the Remarketing Agent. The Trustee may (but is not obligated to), however, at any
time, in its discretion, require of the Issuer full information and cooperation as to the
pedormance of any of the covenants, conditions and agreements contained herein. Such inquiry
shall not for the purposes of this Section 10.05 constitute notice of any Event of Default. The
Issuer shall not be required to take notice, or be deemed to have notice, of any Event of Default,
other than an Event of Default of which it shall have actual knowledge. If an Event of Default
-70 -Series 20JOA Trusi Indenture
occurs after the Trustee has notice of the same as provided in this Section 10.05, or if a
Determination of Taxability occurs of which the Trustee has actual knowledge, then the Trustee
shall give notice thereof by Mail to the Provider, the Remarketing Agent and the Owners of
Outstanding Bonds.
Sectin 10.06. Action by Trustee. Except as provided in Section 2.16, Section 3.03 and
Section 9.02 hereof and except for the payment of principal of, and premium, if any, and interest
on, the Bonds when due from moneys held by the Trustee as part of the Trust Estate, the Trustee
shall be under no obligation to take any action in respect of any Event of Default or toward the
execution or enforcement of any of the trusts hereby created, or to institute, appear in or defend
any suit or other proceeding in connection therewith, unless requested in wnting so to do by the
Provider or the Owners of at least 33-113% in principal amount of the Bonds then Outstanding
and, unless furnished, from time to time as often as it may require, with security and indemnity
satisfactory to it (except against negligence or wilful misconduct); but the foregoing provisions
are intended only for the protection of the Trustee, and shan not affect any discretion or power
given by any provisions of this Indenture to the Trustee to take action in respect of any Event of
Default without such notice or request from the Owners, or without such secunty or indemnity.
Notwithstanding any other provision of this Indenture, in determining whether the rights
of the Owners wil be adversely affected by any action taken pursuant to the terms and
provisions of this Indenture, the Trustee shall consider the effect on the Owners as if there were
no Credit Facilty.
Section 10.07. Good-Faith Reliance. The Trustee, the Registrr, the Provider and the
Remarketing Agent, shall be protected and shall incur no liability in acting or proceeding in goo
faith upon any resolution, notice, telegram, telex or facsimile transmission, request, consent,
waiver, certificate, statement, affdavit, voucher, bond, requisition or other paper or document
which it shall in good faith believe to be genuine and to have been passed or signed by the proper
board, body or person or to have been prepared and furnished pursuant to any of the provisions
of this Indenture, the Agreement, the Credit Facility Agreement or the Company Mortgage (if the
Trustee holds First Mortgage Bonds), or upon the written opinion of any attorney, engineer,
accountant or other expert believed, without independent investigation, by the Trustee, the
Registrar, the Provider or the Remarketing Agent, as the case may be, to be qualified in relation
to the subject matter. The Trustee, the Registrr, the Provider and the Remarketing Agent, shan
be under no duty to make any investigation or inquiry as to any statements contained or matters
referred to in any such instrument, but may accept and rely upon the same as conclusive
evidence of the truth and accuracy of such statements; provided, however, that the Trustee may,
in its discretion, make such furter inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or investigation it shall be
entitled to examine the books, records and premises of the Company personally or by agent or
attorney. Neither the Trustee, the Registrar, the Provider nor the Remarketing Agent shall be
bound to recognize any person as an Owner or to take any action at such person's request unless
satisfactory evidence of the ownership of such Bond shall be furnished to such entity.
Whenever in the administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omittng any action hereunder, the
-71 -Series 20lOA Trust Jndenture
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of
negligence or bad faith on its part, request and conclusively rely upon a certificate of an
Authorized Company Representative or an Executive Ofcer.
The Trustee may execute any of the trusts or powers hereunder or pedorm any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.
Notwithstanding anything elsewhere in this Indenture contained, the Trustee shall have
the right, but shall not be required, to demand, in respect of the authentication of any Bonds or
the taking of any other action whatsoever within the purview of this Indenture or the Agreement,
any showings, certficates, opinions or other infonnation, or corprate action or evidence thereof,
in addition to those by the tenns hereof or thereof required as a condition of such action which
are reasonably deemed desirable by the Trustee for the purpse of establishing the right of the
Issuer or the Company to request the taking of such action by the Trustee.
Section 10.08. Dealings in Bonds; Allowance of Interest. The Trustee, the Registrar, the
Provider, or the Remarketing Agent, in each of their individual capacities, may in good faith buy,
sell own, hold and deal in any of the Bonds issued hereunder, or any bonds issued under the
Company Mortgage, and may join in any action which any Owner may be entitled to take with
like effect as if it did not act in any capacity hereunder. The Trustee, the Registrar, the Provider,
or the Remarketing Agent, in each of their individual capacities, either as principal or agent, may
also engage in or be interested in any financial or other transaction with the Issuer or the
Company, and may act as depositary, trustee or agent for any committee or boy of Owners
secured hereby or other obligations of the Issuer or the Company as freely as if it did not act in
any capacity hereunder.
All moneys received by the Trustee shall, until used or applied as herein provided, be
held in trust for the purpses for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no liabilty for
interest on any moneys received hereunder except such as it may agree with the Company to pay
thereon.
Section 10.09. Several Capacities. Anything in this Indenture to the contrary
notwithstanding, the same entity may serve hereunder as the Trustee, the Registrar, the Paying
Agent and the Remarketing Agent and in any other combination of such capacities, to the extent
permitted by law. For purposes of this Trust Indenture, the Remarketing Agent shall not be
deemed to be an agent or representative of the Trustee.
Section 10.10. Resignaton of Trustee. The Trustee may resign and be discharged of the
trusts created by this Indenture by executing any instrument in writing resigning such trust and
specifying the date when such resignation shall take effect, and filing the same with the Issuer,
the Company, the Registrar, the Provider, and the Remarketing Agent not less than 45 days
before the date specified in such instrument when such resignation shall take effect, and by
giving notice of such resignation by Mail not less than three weeks prior to such resignation date,
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to all Owners of Bonds. Such resignation shall take effect on the day specified in such
instrment and notice, unless previously a successor Trustee shall have been appointed as
hereinafter provided, in which event such resignation shall take effect immediately upon the
appointment of such successor Trustee, but in no event shall a resignation take effect earlier than
the date on which a successor Trustee has been appointed and has accepted its appointment and
has received transfer of the rights of the Trustee under the Credit Facilty.
Section 10.11. Removal of Trustee. (a) The Trustee may be removed at any time by fiing
with the Trustee so removed and with the Issuer, the Company, the Registrar, the Provider, and
the Remarketing Agent, an instrument or instruments in writing executed by (i) the Provider, if
no Provider Default orEvent of Default shall have occurred and be continuing and if the Trustee
has acted or failed to act hereunder in a manner that is contrary to the standard of care of the
Trustee provided for herein, or (ii) the Owners of not less than a majority in principal amount of
the Bonds then Outstading and, if no Provider Default shall have occurred and be continuing,
the Provider.
(b) The Issuer may, and, so long as no default or Event of Default is then existing under
Section 7.01 of the Agreement or Section 9.01(a), (b) or (c) of this Indenture, at the request of
the Company wil, remove the Trustee if (i) the Trustee fails to comply with Section 1O.l3(a),
(b), (c) or (e) hereof, (ii) the Trustee is adjudged a bankrupt or an insolvent, (iii) a receiver or
other public offcer takes charge of the Trustee or its property or (iv) the Trustee otherwise
becomes incapable of acting.
(c) In no event shall a removal take effect earlier than the date on which a successor
Trustee has been appointed and has accepted its appointment.
Sectin 10.12. Appointment of Successor Trutee. In case at any time the Trustee shall be
removed, or be dissolved, or if its propert or affairs shall be taken under the control of any state
or federal court or administrative boy because of insolvency or bankruptcy, or for any other
reason, then a vacancy shall forthwith and ipso facto exist in the offce of Trustee and a
successor may be appointed, and in case at any time the Trustee shaH resign, then a successor
may be appointed by fiing with the Issuer, the Company, the Registrar and the Remarketing
Agent an instrument in writing executed by (i) the Provider, if no Provider Default shall have
occurred and be continuing, or (ii) the Owners of not less than a majority in principal amount of
the Bonds then Outstanding and, if no Provider Default shall have occurrd and be continuing,
the Provider, or (iii) the Company if no default or Event of Default is then existing under
Section 7.01 of the Agreement or Section 9.01(a), (b) or (c) of this Indenture. Copies of such
instrment shall be promptly delivered by the Issuer to the predecessor Trustee and to the
Trustee so appointed.
Until a successor Trustee shall be appointed by the Provider, the Owners or by the
Company as herein authonzed, the Issuer, by an instrument authorized by the governing body of
the Issuer, shall appoint a successor Trustee acceptable to the Company and the Provider. After
any appointment by the Issuer, it shaH cause notice of such appointment to be given to the
Remarketing Agent and the Registrar and to be given by Mail to all Owners of Bonds. Any new
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Trustee so appointed by the Issuer shall immediately and without farther act be superseded by a
Trustee appointed by the Owners, the Company or the Provider in the manner above provided.
Section 10.13. Qualifcatons of Successor Trustee. Every successor Trustee (a) shall be a
national or state bank, in either case with trust powers, or trust company that is authorized by law
to perform all the duties imposed upon it by this Indenture, (b) shall have (or, in the case of a
corpration included in a bank holding company system, the related bank holding company shall
have) a combined capital and surplus of at least $50,00,00 as set forth in its (or its related bank
holding company's) most recent published annual report of condition, (c) shall be permitted
under the Act to pedorm the duties of Trustee, (d) shall be acceptable to the Provider and shall
agree with the Provider to act as agent for the Provider with respect to Pledged Bonds, and (d) so
long as the Bonds are subject to optional or mandatory purchase pursuant to the provisions of
this Indenture and no book-entry system for the Bonds is in effect pursuant to Section 2.15
hereof, shall have an office or agency located in any State of the United States of America if
there can be located, with reasonable effort, such an institution willng and able to accept the
trust on reasonable and customary terms.
Sectin 10.14. Judicial Appointment of Successor Trustee. In case at any time the
Trustee shall resign and no appointment of a successor Trustee shall be made pursuant to the
foregoing provisions of this Article X prior to the date specified in the notice of resignation as
the date when such resignation is to take effect, the resigning Trustee may fortwith apply to a
court of competent jurisdiction for the appointment of a successor Trustee. If no appointment of
a successor Trustee shall be made pursuant to the foregoing provisions of this Artcle X within
six months after a vacancy shall have occurred in the offce of Trustee, any Owner or the
Provider may apply to any court of competent Jurisdiction to appoint a successor Trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a
successor Trustee.
Section 10.15. Acceptance of Trusts by Successor Trutee. Any successor Trustee
appointed hereunder shall execute, acknowledge and deliver to the Issuer an instrument
accepting such appointment hereunder, and thereupon such successor Trustee, without any
further act, deed or conveyance, shall become duly vested with all the estates, propert rights,
powers, trusts, duties and obligations of its predecessor in the trust hereunder, with like effect as
if originally named Trustee herein. Upon request of such Trustee, such predecessor Trustee and
the Issuer shall execute and deliver an instrument transferrng to such successor Trustee all the
estates, property, rights, powers and trsts hereunder of such predecessor Trustee and, subject to
the provisions of Section 10.04 hereof, such predecessor Trustee shall pay over to the successor
Trustee all moneys and other assets at the time held by it hereunder.
Section 10.16. Successor by Merger or Consolidon. Any corpration into which any
Trustee hereunder may be merged or converted or with which it may be consolidated, or any
corpnition resulting from any merger or consolidation to which any Trustee hereunder shall be a
part, or to which all or substatially all of its corporate trust business shall be transferred, shall
be the successor Trustee under this Indenture, without the execution or filing of any paper or any
further act on the part of the parties hereto, anything in this Indenture to the contrary
notwithstanding; provided, however, if such successor corpration is not a trust company or state
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or national bank that has trust powers, the Trustee shall resign from the trusts hereby created
pnor to such merger, transfer or consolidation or the successor corpration shall resign from
such trusts as soon as practicable after such merger, transfer or consolidation.
Section 10J7. Standard of Care. Notwithstanding any other provisions of this Article X,
the Trustee shall, dunng the existence and pnor to the cunng of an Event of Default of which the
Trustee has notice as provided in Section 10.05 hereof, exercise such of the nghts and powers
vested in it by this Indenture and use the same degree of skil and care in their exercise as a
prudent person would use and exercise under the circumstances in the conduct of his own affairs.
Sectin 10.18. Intervention in Litgatin of the Issuer. In any judicial proceeding to
which the Issuer is a pary and which in the opinion of the Trustee and its counsel has a
substantial beanng on the interests of the Owners of the Bonds, the Trustee may and shall upon
receipt of indemnity satisfactory to it (except against negligence or wilful misconduct) at the
wntten request of the Owners of at least 25% in pnncipal amount of the Bonds then Outstanding
and if permitted by the court having junsdiction in the premises, intervene in such judicial
proceeding.
Section 10.19. Remarketing Agent. The Company has covenanted in the Agreement that
at all times while any of the Bonds are Outstanding and are subject to optional or mandatory
purchase pursuant to the provisions hereof there shaH be a Remarketing Agent for the Bonds
appointed and acting pursuant to the provisions of this Indenture. The Remarketing Agent shall
designate its Pnncipal Ofce to the Trustee, the Company, the Registrar, the Provider and the
Issuer.
The Issuer shall cooperate with the Trustee, the Registrar, the Provider and the Company
to cause the necessary arngements to be made and to be thereafter continued whereby funds
from the sources specified herein and in the Agreement wiJ be made available for the purchase
of Bonds presented at the Delivery Office of the Trustee and whereby Bonds, executed by the
Issuer and authenticated by the Trustee, shall be made available to the Remarketing Agent to the
extent necessary for delivery pursuant to Section 3.06 hereof.
Section 1020. Qualifcatons of Remarketing Agent. The Remarketing Agent shall have
a capitalization of at least $50,00,00 and be authonzed by law to peiform all the duties
contemplated by this Indenture to be performed by the Remarketing Agent and agrees to take all
actions required of it under the DTC Representation Letter while a book-entry system is in effect
for the Bonds. The Remarketing Agent may at any time resign and be discharged of the duties
and obligations contemplated by this Indenture by giving at least 30 days' notice to the Issuer,
the Company, the Registrar, the Provider and the Trustee. The Remarketing Agent may be
removed at any time, at the direction of the Company, by an instrment, signed by an Authorized
Company Representative, fied with the Issuer, the Remarketing Agent, the Registrar and the
Trustee at least 30 days pnor to the effective date of such removaL. Upon the resignation or
removal of the Remarketing Agent, the Company may appoint a new Remarketing Agent.
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In the event of the resignation or removal of the Remarketing Agent, the Remarketing
Agent shall pay over, assign and deliver any moneys held by it in such capacity to its successor
or, if there be no successor, to the Trustee.
Section 10.21. Registrar. Pursuant to the provisions hereof the Trustee is the initial
Registrar for the Bonds. By its execution of this Indenture, the Trustee signifies its acceptance of
the duties of Registrar hereunder. Any successor Registrar shall designate to the Issuer, the
Company, the Provider and the Remarketing Agent its offce where the registration books shall
be kept and signify its acceptance of the duties imposed upon it hereunder by a wntten
instrument of acceptance delivered to the Issuer and the Trustee under which such Registrar wil
agree, partcularly, to keep such books and records as shall be consistent with prudent industry
practice and to make such books and records available for inspection by the Issuer, the Trustee,
the Company, the Provider and the Remarketing Agent at all reasonable times. So long as the
Bonds are subject to optional or mandatory purchase pursuant to the provisions of this Indenture
and no book-entry system for the Bonds is in effect pursuant to Section 2.16 hereof, the Registrar
shall maintain in any State located within the United States of America, an office or agency for
the exchange, registration and registration of transfer of the Bonds.
The Issuer shall cooperate with the Trustee, the Remarketing Agent and the Company to
cause the necessary arrngements to be made and to be thereafter continued whereby Bonds,
executed by the Issuer and authenticated by the Registrar, shall be made available for exchange,
registration and registration of transfer at the Prncipal Offce of the Registrar. The Issuer shall
cooperate with the Trustee, the Registrar, the Company and the Remarketing Agent to cause the
necessary arrgements to be made and thereafter continued whereby the Trustee and the
Remarketing Agent shall be furnished such records and other information, at such times, as shall
be required to enable the Trustee and the Remarketing Agent to penonn the duties and
obligations imposed upon them hereunder.
Section 10.22. Quolifcatns of Registrar; Resignatn; Removal. The Registrar shall be
a corporation, bank or trust company duly organized under the laws of the United States of
America or any state or terntory thereof, having a combined capital surplus and retained earnings
of at least $10,00,00 and authorized by Jaw to penorm all the duties imposed upon it by thisIndenture. The Registrar may at any time resign and be discharged of the duties and obligations
created by this Indenture by giving at least 45 days' notice to the Issuer, the Trustee, the
Remarketing Agent, the Provider and the Company. The Registrar may be removed at any time
by an instrment signed by an Authorized Company Representative and fied with the Issuer, the
Registrar, the Trustee, the Provider and the Remarketing Agent. Upon the resignation or
removal of the Registrar, the Company shall appoint a new Registrar.
In the event of the resignation or removal of the Registrar, the Registrar shaH deliver any
Bonds held by it in such capacity to its successor or, if there be no successor, to the Trustee.
In the event that the Company shall fail to appoint a Registrar hereunder, or in the event
that the Registrar shall resign or be removed, or be dissolved, or if the property or affairs of the
Registrar shall be taken under the control of any state or federal court or administrative body
because of bankruptcy or insolvency, or for any other reason, and the Company shaH not have
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appointed its successor as Registrar, the Trustee shall ipso facto be deemed to be the Registrar
for all purpses of this Indenture until the appointment by the Company of the Registrar or
successor Registrar, as the case may be.
Section 10.23. Paying Agents. (a) The Company, with the wntten approval of the Trustee
and the Issuer, may appoint and at all times have one or more paying agents in such place or
places as the Company may designate, for the payment of the principal of, and premium, if any,
and the interest on, the Bonds. Each such paying agent shall be a bank with the power to hold
moneys in trust or a trust company. It shall be the duty of the Trustee to make such
arrangements with any such paying agent as may be necessary to assure, to the extent of the
moneys held by the Trustee for such payment, the prompt payment of the principal of, and
premium, if any, and interest on, the Bonds presented at either place of payment. The Paying
Agent initially appointed hereunder is the Trustee, and the place of payment shall be the Delivery
Offce of the Trustee.
(b) The Paying Agent may at any time resign and be discharged of the duties and
obligations created by this Indenture by giving at least 30 days' notice to the Issuer, the Trustee,
the Remarketing Agent, the Provider and the Company. The Paying Agent may be removed at
any time by an instrument signed by an Authorized Company Representative and filed with the
Issuer, the Paying Agent, the Trustee, the Provider and the Remarketing Agent. Upon the
resignation or removal of the Paying Agent, the Company shall appoint a new Paying Agent.
Any successor Paying Agent appointed hereunder shall execute, acknowledge and deliver to the
Issuer an instrument accepting such appointment hereunder,
In the event of the resignation or removal of the Paying Agent, the Paying Agent shall
deliver any Bonds held by it in such capacity to its successor or, if there be no successor, to the
Trustee.
In the event that the Company shall fail to appoint a Paying Agent hereunder, or in the
eyent that the Paying Agent shall resign or be removed, or be dissolved, or if the propert or
affairs of the Paying Agent shall be taken under the control of any state or federal court or
administrative body because of bankruptcy or insolvency, or for any other reason, and the
Company shall not have appointed its successor as Paying Agent, the Trustee shaH ipso facto be
deemed to be the Paying Agent for all purpses of this Indenture until the appointment by the
Company of the Paying Agent or successor Paying Agent, as the case may be.
Sectin 10.24. Additional Duties of Trutee. The Trustee shall:
(a) hold all Bonds delivered to it hereunder for the account of and for the
benefit of the respective Owners which shall have so delivered such Bonds pursuant to
Section 3.0 i or Section 3.02 until moneys representing the purchase price of such Bonds
shaH have been delivered to or for the account of or to the order of such Owners;
(b) hold all moneys delivered to it hereunder for the purchase of Bonds for the
benefit of the person or entity which shall have so delivered such moneys until the Bonds
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purchased with such moneys shall have been delivered to or for the account of such
person or entity;
(c) keep such books and records with respect to the Bonds as shall be
consistent with prudent industry practice and to make such boks and records available
for inspection by the Issuer, any Paying Agent, the Company and the Remarketing Agent
with prior notice, at all reasonable times during Trustee's normal business hours; and
(d) as long as a book-entry system is in effect for the Bonds, the Trustee wi))
comply with the DTC Representation Letter and pedorm all duties required of it
thereunder.
ARTICLE XI
EXECUTION OF INSTRUMENTS BY OWNERS
AND PROOF OF OWNERSHIP OF BONDS
Any request, direction, consent or other instrument in writing required or permitted by
this Indenture to be signed or executed by the Owners or on their behalf by an attorney-in-fact
may be in any number of concurrent instruments of similar tenor and may be signed or executed
by the Owners in person or by an agent or attorney-in-fact appointed by an instrment in writing
or as provided in the Bonds. Proof of the execution of any such instrument and of the ownership
of Bonds shall be suffcient for any purpose of this Indenture and shall be conclusive in favor of
the Trustee with regard to any action taken by it under such instrument if made in the following
manner:
(a) The fact and date of the execution by any person of any such instrument
may be proved by the certificate of any officer in any junsdiction who, by the laws
thereof, has power to take acknowledgments within such Jurisdiction, to the effect that
the person signing such instrument acknowledged before him the execution thereof, or by
an affidavit of a witness to such execution.
(b) The ownership of Bonds shall be proved by the registration books kept
under the provisions of Section 2.1 1 hereof.
Nothing contained in this Article XI shall be construed as limiting the Trustee to such
proof, it being intended that the Trustee may accept any other evidence of matters herein stated
which it may deem suffcient. Any request by or consent of any Owner shall bind every future
Owner of the same Bond or any Bond or Bonds issued in lieu thereof or upon registration of
transfer thereof in respect of anything done by the Trustee or the Issuer in pursuance of such
request or consent.
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ARTICLE XII
MODIFICATION OF THIS INDENTURE AND THE AGREEMENT
Sectin 12.01. Supplemental Indentures Without Owner Consent. The Issuer and the
Trustee may, from time to time and at any time, without the consent of the Owners, enter into a
Supplemental Indenture as follows:
(a) to cure any formal defect, omission, inconsistency or ambiguity in this
Indenture;
(b) to add to the covenants and agreements of the Issuer contaned in this
Indenture or of the Company or of the Provider contained in any document, other
covenants or agreements thereater to be observed, or to assign or pledge additional
secunty for any of the Bonds, or to surrender any right or power reserved or conferred
upon the Issuer or the Company;
(c) to confirm as further assurance, any pledge of or lien on the Revenues or
any other moneys, securities or funds subject or to be subjected to the lien of this
Indenture;
(d) to comply with the requirements of the Trust Indenture Act of 1939, as
from time to time amended, if applicable to this Indenture;
(e) to implement an adjustment of the interest rate on the Bonds;
(f) to provide for a Change of Credit Facilty;
(g) to provide for a depository to accept Bonds in lieu of the Trustee;
(h) to modify or eliminate the book-entry registration system for any of the
Bonds;
(i) to provide for uncertficated Bonds or for the issuance of coupons and
bearer Bonds or Bonds registered only as to principal but only to the extent that such
would not adversely affect the Tax-Exempt status of the Bonds;
(j) to secure or maintain ratings on the Bonds from Moody's and/or S&P;
(k) to provide demand purchase obligations to cause the Bonds to be
authorized purchases for investment companies;
(1) to provide for the appointment of a Remarketing Agent or a successor
Trustee, Registrar, Paying Agent or Remarketing Agent;
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(m) to provide the procedures required to permit any Owner to separate the
right to receive interest on the Bonds from the right to receive principal thereof and to sell
or dispose of such right as contemplated by Section 1286 of the Code (or similar
successor provision);
(n) to provide for any additional procedures, covenants or agreements
necessary to maintain the Tax-Exempt status of the Bonds;
(0) to modify, alter, amend or supplement this Indenture in any other respect,
including amendments which would otherwise be descnbed in Section 12.02 hereof, if
the effective date of such supplement or amendment is a date on which an Bonds affected
thereby are subject to mandatory purchase pursuant to Section 3.02 hereof or if notice by
Mail of the Proposed amendment or supplement is given to Owners of the Bonds at least
thirty (30) days before the effective date thereof and, on or before such effective date,
such Owners have the right to require purchase of their Bonds pursuant to Section 3.01
hereof;
(p) to provide for any Additional Collateral and the release of any Additional
Collateral in accordance with Section 4.09 of the Agreement; and
(q) to modify, alter, amend or supplement this Indenture or any Supplemental
Indenture in any other respect; provided that such modification, alteration, amendment or
supplement shall not adversely afect the interest of the Owners of the Bonds in any
matenal respect, as evidenced by a certficate of an Authorized Company Representative.
Before the Issuer and the Trustee shall enter into any Supplemental Indenture pursuant to
this Section 12.01, (1) in the case of a Supplemental Indenture entered into pursuant to clauses
(I), (n) or (p) of this Section and provided that no Provider Default shall have occurred and be
continuing, there shall have been delivered to the Trustee and the Company, the written consent
of the Provider, and (2) in all cases, there shall have been delivered to the Trustee, the Provider
and the Company, a Favorable Opinion of Bond Counsel with respect to such Supplemental
Indenture and furter stating that such Supplemental Indenture is authorized or permitted by this
Indenture and wil, upon the execution and delivery thereof, be valid and binding upon the Issuer
in accordance with its terms. Neither the Issuer nor the Trustee wil be obligated to enter into
any such Supplemental Indenture that would materially alter their respective rights. duties or
immunities under this Indenture, under the Agreement or otherwise.
The Trustee shall provide written notice of any Supplemental Indenture descnbed in this
Section 12.01 to Mooy's, S&P, the Provider, the Remarketing Agent and the Owners of all
Bonds then Outstanding at least i 5 days prior to the effective date of such Supplemental
Indenture. Such notice shall state the effective date of such Supplemental Indenture and shall
briefly describe the nature of such Supplemental Indenture and shall state that a copy thereof is
on file at the Prncipal Office of the Trustee for inspection by the parties mentioned in the
preceding sentence.
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Section 12.02. Supplemental Indentres Requirng Owner Consent. (a) Except for any
Supplemental Indenture entered into pursuant to Section 12.01 hereof, subject to the terms and
provisions contained in this Section 12.02 and not otherwise, the Provider (unless a Provider
Default shaH have occurred and be continuing), together with the Owners of not less than 60% in
aggregate principal amount of the Bonds then Outstanding shaH have the right from time to time
to consent to and approve the execution and delivery by the Issuer and the Trustee of any
Supplemental Indenture deemed necessary or desirable by the Issuer for the purposes of
modifying, altering, amending. supplementing or rescinding. in any particular, any of the terms
or provisions contained in this Indenture; provided, 1wwever, that, unless approved in writing by
the Provider (unless a Provider Default shall have occurred and be continuing) and the Owners
of all the Bonds then affected thereby, nothing herein contained shall permit, or be construed as
permitting, (i) a change in the times, amounts or currency of payment of the principal of, or
premium if any, or interest on, any Outstanding Bond, a change in the terms of the purchase
thereof by the Trustee, or a reduction in the principal amount or redemption price of any
Outstanding Bond or the rate of interest thereon, or (ii) the creation of a claim or lien upon, or a
pledge of, the Revenues ranking prior to or on a panty with the claim. lien or pledge created by
this Indenture (except as referred to in Section 10.04 hereof), or (iii) a reduction in the aggregate
principal amount of Bonds the consent of the Owners of which is required for any such
Supplemental Indenture or which is required, under Section 12.06 hereof, for any modification,
alteration, amendment or supplement to the Agreement.
(b) If at any time the Issuer shall request the Trustee to enter into any Supplemental
Indenture for any of the purposes of this Section 12.02, the Trustee shall cause notice of the
proposed Supplementa Indenture to be given by Mail to Moody's, S&P, the Provider. the
Remarketing Agent and all Owners of Outstanding Bonds. Such notice shall briefly set forth the
nature of the proposed Supplemental Indenture and shall state that a copy thereof is on fie at the
Prncipal Office of the Trustee for inspection by the Owners, Mooy's, S&P, the Provider and
the Remarketing Agent.
(c) Within two years after the date of the mailing of such notice. the Issuer and the
Trustee may enter into such Supplemental Indenture in substantially the form described in such
notice, but only if there shall have first been delivered to the Trustee (i) the required consents. in
wnting, of the Owners and the Provider and (ii) a Favorable Opinion of Bond Counsel with
respect to such Supplemental Indenture and further stating that such Supplemental Indenture is
authonzed or permitted by this Indenture and wil, upon the execution and delivery thereof, be
valid and binding upon the Issuer in accordance with its terms. Neither the Issuer nor the Trustee
will be obligated to enter into any such Supplemental Indenture that would materially alter their
respective nghts. duties or immunities under this Indenture, under the Agreement or otherwise.
(d) If Owners of not less than the percentage of Bonds required by this Section 12.02
shall have consented to and approved the execution and deJivery of a Supplemental Indenture as
herein provided, no Owner shall have any right to object to the execution and delivery of such
Supplemental Indenture. or to object to any of the terms and provisions contained therein or the
operation thereof, or in any manner to question the propriety of the execution and delivery
thereof, or to enjoin or restrain the Issuer or the Trustee from executing and delivering the same
or from taking any action pursuant to the provisions thereof.
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Sectin 12.03. Effect of Supplemental Indenture. Upon the execution and delivery of any
Supplemental Indenture pursuant to the provisions of this Article XII, this Indenture shall be, and
be deemed to be, modified and amended in accordance therewith, and the respective rights,
duties and obligations under this Indenture shall thereafter be determined, exercised and enforced
under this Indenture subject in all respects to such modifications and amendments.
Section 12.04. Consent of the Company and the Provider. No Supplemental Indenture
under this Article XII and no amendment of the Agreement shall become effective unless the
Company shall have consented thereto in writing.
Any provision of this Indenture expressly recognizing or granting rights in or to the
Provider may not be amended in any manner which affects the rights of the Provider hereunder
without the pnor written consent of the Provider (unless a Provider Default shall have occurred
and be continuing).
Section 12.05. Amendment of Agreement Without Owner Consent. Without the consent
of or notice to the Owners, the Issuer and the Company may, with the consent of the Provider
(unless a Provider Default shaH have occurred and be continuing), modify, alter, amend or
supplement the Agreement, and the Trustee may consent thereto, as may be required:
(a) by the provisions of the Agreement and this Indenture;
(b) for the purpose of curing any formal defect, omission, inconsistency or
ambiguity therein;
(c) to secure or maintain ratings on the Bonds from Moody's and/or S&P;
(d) to add to the covenants and agreements of the Issuer contained in the
Agreement or of the Company or of the Provider contained in any document, other
covenants or agreements thereafter to be observed, or to assign or pledge additional
security for any of the Bonds, or to surrender any right or power reserved or conferred
upon the Issuer or the Company, which shaH not materially adversely afect the interest
of the Owners of the Bonds, as evidenced by a certificate of an Authorized Company
Representative;
(e) to provide demand purchase obligations to cause the Bonds to be
authorized purchases for investment companies;
(0 to provide the procedures required to permit any Owner to separate the
right to receive interest on the Bonds from the right to receive principal thereof and to sell
or dispose of such right as contemplated by Section 1286 of the Code (or similar
successor provision);
(g) to provide for any additional procedures, covenants or agreements
necessary to maintain the Tax-Exempt status of interest on the Bonds;
- 82-Series 2010A Trust Indenture
(h) to implement an adjustment of the interest rate on the Bonds or in
connection with the appointment of a Remarketing Agent;
(i) to provide for a Change of Credit Facilty;
(j) to modify, alter, amend or supplement the Agreement in any other respect,
including amendments which would otherwise be descnbed in Section 12.06 hereof, if
the effective date of such supplement or amendment is a date on which all Bonds afected
thereby are subject to mandatory purchase pursuant to Section 3.02 hereof or if notice by
Mail of the proposed amendment or supplement is given to Owners of the Bonds at least
thirty (30) days before the effective date thereof and, on or before such effective date,
such Owners have the right to demand purchase of their Bonds pursuant to Section 3.01
hereof;
(k) in connection with the delivery and substitution of any Additional
Collateral and the release of any Additional Collateral in accordance with Section 4.09 of
the Agreement; and
(I) in connection with any other change therein which does not adversely
affect the interests of the Owners of the Bonds in any material respect, as evidenced by a
certificate of an Authorized Company Representative;
A revision of Exhibit A to the Agreement in accordance with Section 3.04 of the
Agreement shall not be deemed a modification, alteration, amendment or supplement to the
Agreement, or to this Indenture, for any purpse of this Indenture.
Before the Issuer shall enter into, and the Trustee shall consent to, any modification,
alteration, amendment or supplement to the Agreement pursuant to this Section 12.05, there shall
have been delivered to the Issuer, the Provider and the Trustee a Favorable Opinion of Bond
Counsel with respect to such modification, alteration, amendment or supplement and further
stating that such modification, alteration, amendment or supplement is authorized or permtted
by the Agreement or this Indenture and wil, upon the execution and delivery thereof, be valid
and binding upon the Issuer in accordance with its terms. Neither the Issuer nor the Trustee wil
be obligated to enter into or consent to any such modifications, alterations, amendments or
supplements to the Agreement that would materially alter their respective rights, duties or
immunities under this Indenture, under the Agreement or otherwise.
Sectin 12.06. Amendment of Agreement Requirng Owner Consent. Except in the case
of modifications, alterations, amendments or supplements referred to in Section 12.05 hereof, the
Issuer shall not enter into, and the Trustee shall not consent to, any amendment, change or
modification of the Agreement without the written approval or consent of the Provider (unless a
Provider Default shall have occurrd and be continuing) and the Owners of not less than 60% in
aggregate principal amount of the Bonds then Outstanding, given and procured as provided in
Section 12.02 hereof, provided, however, that, unless approved in writing by the Provider (unless
a Provider Default shall have occurred and be continuing) and the Owners of all Bonds afected
thereby, nothing herein contained shall permt, or be construed as permitting, a change in the
- 83 -Scnes 20lOA Trust Indenture
obligations of the Company under Section 4.01 and Section 4.02 of the Agreement. If at any
time the Issuer or the Company shall request the consent of the Trustee to any such proposed
modification, alteration, amendment or supplement permitted under this Section 12.06, the
Trustee shall cause notice thereof to be given in the same manner as provided by Section 12.02
hereof with respect to Supplemental Indentures. Such notice shall bnefly set forth the nature of
such proposed modification, alteration, amendment or supplement and shan state that copies of
the instrument embodying the same are on fie at the Prncipal Office of the Trustee for
inspection by aU Owners. The Issuer may enter into, and the Trustee may consent to, any such
proposed modification, alteration, amendment or supplement subject to the same conditions and
with the same effect as provided in Section 12.02 hereof with respect to Supplemental
Indentures.
Before the Issuer shall enter into, and the Trustee shaH consent to, any modification,
alteration, amendment or supplement to the Agreement pursuant to this Section 12.06, there shall
have been delivered to the Issuer, the Provider and the Trustee a Favorable Opinion of Bond
Counsel with respect to such modification, alteration, amendment or supplement and further
stating that such modification, alteration, amendment or supplement is authorized or permitted
by the Agreement or this Indenture and wil, upon the execution and delivery thereof, be valid
and binding upon the Issuer in accordance with its terms. Neither the Issuer nor the Trustee wil
be obligated to enter into any such modifications, alterations, amendments or supplements to the
Agreement that would materially alter their respective rights, duties or immunities under this
Indenture, under the Agreement or otherwise.
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Successors of the Issuer. In the event of the dissolution of the Issuer, all
the covenants. stipulations, promises and agreements in this Indenture contained, by or on behalf
of, or for the benefit of the Issuer, shall bind or inure to the benefit of the successors of the Issuer
from time to time and any entity, officer, board, commission, agency or instrumentality to whom
or to which any power or duty of the Issuer shall be transferred.
Section 13.02. Partes in Interest. Except as herein otherwise specifically provided,
nothing in this Indenture expressed or implied is intended or shall be construed to confer upon
any person, firm or corporation other than the Issuer, the Remarketing Agent, the Registrar, the
Paying Agent, the Company, the Trustee, the Provider and the Owners of Bonds any right,
remedy or claim under or by reason of this Indenture, this Indenture being intended to be for the
sole and exclusive benefit ofthe Issuer, the Remarketing Agent, the Registrar, the Paying Agent,
the Company, the Trustee, the Provider and the Owners of Bonds. The Trustee shall have no
fiduciary duty to any entity other than the Owner of any Bond as such and only in accordance
with, into the extent of, the terms and provisions hereunder.
Section 13.03. Severabilit. In case anyone or more of the provisions of this Indenture or
of the Agreement or of the Bonds shaH for any reason, be held to be ilegal or invalid, such
- 84-Series 2010A Trusllndeniure
ilegality or invalidity shall not affect any other provisions of this Indenture, the Agreement, or
of the Bonds, and this Indenture, the Agreement and the Bonds shall be construed and enforced
as if such ilegal or invalid provisions had not been contained herein or therein.
Section 13.04. No Personal Liabilit of Issuer Officia. No representation, warranty,
covenant or agreement contained in the Bonds or in this Indenture or in any of the documents or
certificates related thereto shall be deemed to be the representation, warranty, covenant or
agreement of any offcial, officer, agent, counselor employee of the Issuer in his or her
individual capacity, and neither the members of the Issuer nor any official executing the Bonds
shall be liable personally on the Bonds or be subject to any personal liability or accountability by
reason of the issuance thereof.
Sectin 13.05. Bonds Owned by the Issuer or the Company. In determining whether the
Owners of the requisite aggregate principal amount of the Bonds have concurred in any
direction, consent or waiver under this Indenture, Bonds which are owned by the Issuer or the
Company or by any person directly or indirectly controllng or controlled by or under direct or
indirect common control with the Company (unless the Issuer, the Company or such person
owns all Bonds which are then Outstanding, determined without regard to this Section 13.05)
shall be disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that, for the purpose of determining whether the Trustee shall be protected
in relying on any such direction, consent or waiver, only Bonds which a Responsible Officer of
the Trustee actually knows are so owned shall be so disregarded. Bonds so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such Bonds and that the
pledgee is not the Issuer or the Company or any person directly or indirectly controllng or
controlled by or under direct or indirect common control with the Company. In case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
Section 13.06. Counterprt. This Indenture may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same Indenture.
Section 13.07. Governing Law. This Indenture shall be governed by and construed in
accordance with the laws of the State; provided, however, that the rights, protections and
immunities of the Trustee shall be governed by and construed in accordance with the laws of the
State of Washington.
Section 13.08. Notices. Except as otherwise provided in this Indenture, all notices,
certificates, requests, requisitions, directions or other communications by the Issuer, the
Company, the Trustee, the Registrar, the Paying Agent, the Provider, the Company Mortgage
Trustee (if the Trustee holds First Mortgage Bonds) or the Remarketing Agent, pursuant to this
Indenture shall be in writing and shall be sufficiently given and shall be deemed given when
mailed by Mail or by certified or registered mail postage prepaid, or by overnight delivery
service, addressed as follows (and, if by overnight delivery service and required by the chosen
delivery servce, with then-current telephone numbers of the addressees):
- 85 ~Series 2010A Tmst Indenture
if to the Issuer, to:City of Forsyth, Montana
City Hall
Forsyth, Montana 59327
Attention: Mayor
if to the Trustee, to:The Bank of New York Mellon Trust Company, N.A.
Two Union Square, Suite 520
601 Union Street
Seattle, Washington 98101-2321
Attention: Corprate Trust Administration
if to the Company, to:A vista Corporation
1411 East Mission Avenue
Spokane, Washington 99220
Attention: Treasurer
if to the Provider, to such address specified in the Credit Facilty Agreement; if to the Registrar,
the Company Mortgage Trustee (if the Trustee holds First Mortgage Bonds) or the Paying Agent,
to such address as is designated in wnting by it to the Trustee and the Issuer; and if to the
Remarketing Agent, at the address specified in the Remarketing Agreement. Any of the
foregoing may, by notice given hereunder to each of the others, designate any further or different
addresses to which subsequent notices, certificates, requests or other communications shall be
sent hereunder. Any communications required to be given hereunder by the Company shall be
given by an Authorized Company Representative.
Section 13.09. Holidays. If the date for making any payment or the last date for
performance of any act or the exercising of any right, as provided in this Indenture, shaH not be a
Business Day, such payment may, unless otherwise provided in this Indenture or the Agreement,
be made or act performed or right exercised on the next succeeding Business Day with the same
force and effect as if done on the nominal date provided in this Indenture, and no interest shall
accrue for the period after such nominal date.
Section 13JO. Purchase of Bonds by Trustee and Remarketig Agent. The Trustee and
the Issuer agree that in connection with the purchase of any Bonds pursuant to this Indenture, the
Trustee and the Remarketing Agent are acting solely on behalf of the Company.
Section 13.11. Notices to Moody's and S&P. The Trustee shall provide pnor written
notice to Mooy's (if the Bonds are then rated by Moody's) and to S&P (if the Bonds are then
rated by S&P) of (a) the payment of the principal of an of the Bonds, (b) the resignation or
removal of the Trustee, Paying Agent or the Remarketing Agent, (c) any modifications,
alterations, amendments or supplements of this Indenture, the Agreement and (to the extent that
the Trustee has actual knowledge of such modification, alteration, amendment or supplement)
the Remarketing Agreement, (d) the Change of Credit Facility, (e) the adjustment under Article
II hereof of the method by which interest on the Bonds is determined, (f) defeasance of the
Bonds in accordance with Article VII hereof, (g) any mandatory purchases of the Bonds in
accordance with Section 3.02 hereof, (h) any acceleration of the Bonds in accordance with
- 86-Seòes 2010A Trust Indenture
Section 9.02 hereof and (i) any other infonnation that Moody's (if the Bonds are then rated by
Moody's) and to S&P (if the Bonds are then rated by S&P) may reasonably request in order to
maintain the rating on the Bonds.
The agreement of the Trustee herein to give notices to Moody's and S&P has been made
as a matter of courtesy and accommodation only and the Trustee shall not be liable to any Person
for any failure to give any such notice.
As of the date hereof, notices shall be provided to Moody's and to S&P as follows:
if to Moody's, to:
Moody's Investors Service
7 World Trade Center at 250 Greenwich Street
23rd Roor
New York, New York 10007
Attention: Municipal Structured Products Group
Email: MSPGSurveilanceiQmoodys.com
Fax: [phone]
if to S&P, to:
Standard & Poor's Ratings Services,
a division of The McGraw-Hil Companies, Inc.
55 Water Street, 41st Roor
New York, New York 1001
Attention: LOC Surveilance
Email: nylociQstandardandpoors.com
Moody's and S&P may, by notice to the Trustee, designate any further or different address to
which subsequent notices or communications shall be sent hereunder.
Section 13.12. Rights of Provider. Upon a Change of Credit Facility, all rights provided
herein to a Provider other than its right of subrogation pursuant to Section 2.16(f) shall be of no
force and effect with respect to the Provider and Credit Facility wbich has been replaced and
shall apply only to the new Provider and Credit Facilty.
(Signature page follows.)
- 87-Series 20lOA Trust Indenture
IN WITNESS WHEREOF, CITY OF FORSYTH, MONl'ANA, has caused this Indenture to be
signed in its name and behalf by the Mayor, and its official seal to be hereunto affixed and
attested by the City Clerk-Treasurer and to evidence its acceptance of the trusts hereby created
the Trustee has caused this Indenture to be signed in its name and behalf by one of its Assistant
Treasurers, all as of the date first set forth above.
CITY OF FORSYTH , MONTANAB~~nt
ISEAL)
ATIEST:BY:~~
ity Clerk-Treasurer
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
as Trustee
By:
Assistant Treasurer
- 88-Series 20 lOA Trust Indenture
IN WITNESS WHEREOF, CITY OF FORSYTH, MONTANA, has caused this Indenture to be
signed in its name and behalf by the Mayor, and its official seal to be hereunto affixed and
attested by the City Clerk-Treasurer and to evidence its acceptance of the trsts hereby created
the Trustee has caused this Indenture to be signed in its name and behalf by one of its Assistant
Treasurers, all as of the date first set fort above.
CIT OF FORSYTH, MONTANA
By:
Mayor
(SEAL)
ATTEST:
By:
City Clerk-Treasurer
THE BANK OF NEW YORK MELLON TRUST
COMPANY,N.A.,
as Trustee
Associate
- 88-Series 20 lOA Trust Indenture
EXHIBIT A
(FORM OF BONDJ
REGISTERED REGISTERED
No.R-_$
UNITED STATES OF AMERICA
STATE OF MONTANA
CITY OF FORSYTH, MONTANA
POLLUTION CONTROL REVENUE REFUNING BONDS
(A VISTA CORPORATION COLSTRIP PROJECT)
SERIES 2010A
MATURITY DATE ISSUE DATE CUSIPNo.
October i, 2032 December _, 2010
(Flexible Interest Rate:
Last Day of J!'lexible Segment:
Number of Days in Flexible Segment:
Amount of Interest to Accrue Durng Flexible Segment: _J*
Registered Owner:
Prncipal Amount: --------------------------------------- DOLLARS _________________________________________
CITY OF FORSYTH, MONTANA (the "Issuer"), a political subdivision duly organized and
existing under the Constitution and laws of the State of Montana, for value received, hereby
promises to pay (but only out of the source hereinafter provided) to the registered owner
identified above, or registered assigns, on October 1,2032, the principal amount set forth above
and to pay (but only out of the sources hereinafter provided) interest on the balance of said
principal amount from time to time remaining unpaid from the Interest Payment Date (as defined
in the Indenture) next preceding the date of registration and authentication hereof unless this
Bond (as hereinafter defined) is registered and authenticated after a Record Date (as defined in
*To be included only in Bonds bering interest at a Flexible Interest Rate and not registered in the bok-
entry system pursuant to Section 2.16 of the Indenture.
A-I Series 20 Trust Indenture
the Indenture) and on or prior to the related Interest Payment Date, in which event this Bond
shall bear interest from such Interest Payment Date, or unless this Bond is registered and
authenticated before the Record Date for the first Interest Payment Date, in which event this
Bond shall bear interest from the Issue Date set forth above (the "Issue Date"); provided,
however, that if, as shown by the records of the Paying Agent (as hereinafter defined), interest on
the Bonds (as hereinafter defined) shall be in default, Bonds issued in exchange for Bonds
surrendered for registration of transfer or exchange shall bear interest from the last date to which
interest has been paid in full or duly provided for on the Bonds, or, if no interest has been paid or
duly provided for on the Bonds, from the Issue Date, until payment of said pnncipal amount has
been made or duly provided for, at the rates and on the dates determined as described herein and
in the Indenture (as hereinafer defined), and to pay (but only out of the sources hereinafter
provided) interest on overdue principal and, to the extent permtted by law, on overdue interest at
the rate then borne by this Bond, except as the provisions hereinafter set forth with respect to
redemption, purchase or acceleration prior to maturity may become applicable hereto. The
principal of and premium, if any, on this Bond are payable in lawful money of the United States
of America at the corporate trust office in Seattle, Washington, of The Bank of New York
Mellon Trust Company, NA., or its successors and assigns, as Paying Agent (the "Paying
Agent"). Interest payments on this Bond shall be made by the Paying Agent to the registered
owner hereof as of the close of business on the Record Date with respect to each Interest
Payment Date and shall be paid:
(a) in respect of any Bond that is registered in the bok-entr system, pursuant to the
Indenture, in immediately available funds by no later than 2:30 p.m., New York, New York time,
and
(b) in respect of any Bond that is not registered in the book-entry system,
(i) by bank check mailed by first-class mail on the Interest Payment Date to
the registered owner hereof at its address as it appears on the registration books of The
Bank of New York Menon Trust Company, N.A., as registrar (the "Registrar") or at
such other address as is furnished in writing by such registered owner to the Registrar, or
(ii) during any Rate Period (as defined in the Indenture) other than a Term
Interest Rate Period (as defined in the Indenture), in immediately available funds on the
Interest Payment Date (by wire transfer or by deposit to the account of the registered
owner of this Bond if such account is maintained with the Paying Agent),
but in respect of any registered owner of any Bond or Bonds in a Daily Interest Rate Period (as
defined in the Indenture) or a Weekly Interest Rate Period (as defined in the Indenture) or a
Hexible Interest Rate Period (as defined in the Indenture), only to any registered owner that
owns Bonds in an aggregate principal amount of at least $1,00,00 on such Record Date,
according to the written instructions given by the registered owner hereof to the Paying Agent or,
if no such instructions have been provided as of the Record Date, by bank check mailed by first-
class mail on the Interest Payment Date to the registered owner at such registered owner's
address as it appears as of the Record Date on the registration books of the Registrar.
Notwithstanding the foregoing, interest in respect of any Bond bearing a Hexible Rate (as
A-2 Scnes 20lOA Trust Indenture
defined in the Indenture) shall be paid only upon presentation to The Bank of New York Mellon
Trust Company, NA., as Trustee (the "Trustee") of the Bond on which such payment is due.
THIS BOND AND ALL OTHER BONDS OF THE ISSUE OF WHICH IT FORMS A PART SHALL BE
A UMITED OBUGA TION OF THE ISSUER, SHALL NOT CONSTITUTE NOR GIVE RISE TO A GENERAL
OBUGATION OR LIABlLIT OF THE ISSUER OR A CHARGE AGAINST ITS GENERAL CREDIT OR
TAXING POWERS, AND SHALL NOT CONSTITUTE AN INDEBTEDNESS OF THE ISSUER OR OF THE
STATE OF MONTANA, OR A LOAN OF CREDIT THEREOF WITHIN THE MEANING OF ANY
CONSTITTIONAL OR STATUrORY PROVISION.
This Bond is one of the duly authonzed Pollution Control Revenue Refunding Bonds
(Avista Corporation Colstrp Project) Senes 2010A of the Issuer, onginally issued in the
aggregate principal amount of $6,700,00 (the "Bonds"), issued pursuant to proper action duly
adopted by the Issuer on December 6, 2010, and the applicable provisions of Sections 90-5-101
to 90-5-114, inclusive, Montana Code Annotated, as amended (the "Act"), and executed under a
Trust Indenture, dated as of December i, 2010, as amended and supplemented (the "Indenture"),
between the Issuer and The Bank of New York Mellon Trust Company, NA., as trstee (the
"Trustee:' which term shall include any successor Trustee), for the purpse of providing the
funds necessary for the refunding of certin pollution control revenue bonds previously issued by
the Issuer to finance or refinance certain pollution control facilties owned by A vista
Corpration, a Washington corpration (the "Company"). Pursuant to the Loan Agreement,
dated as of December i, 2010 (the "Loan Agreement"), between the Issuer and the Company,
This Bond and all other Bonds of the issue of which it forms a part are issued pursuant to
and in full compliance with the Constitution and laws of the State of Montana, particularly the
Act, and pursuant to further proceedings adopted by the governing authonty of the Issuer, which
proceedings authonze the execution and delivery of the Indenture. This Bond and the issue of
which it forms a part are limited and not general obligations of the Issuer payable solely from the
Revenues (as defined in the Indenture) and amounts denved under the Loan Agreement and
pledged under the Indenture consisting of all amounts payable from time to time by the
Company in respect of the indebtedness under the Loan Agreement and all receipts of the
Trustee credited under the provisions of the Indenture against said amounts payable, including all
amounts drawn by the Trustee under a Credit Facility. No Owner of any Bond issued under the
Act has the nght to compel any exercise of the taxing power of the Issuer to pay the Bonds, or
the interest or premium if any, thereon. The Bonds shaH not constitute an indebtedness or a
general obligation of the Issuer or a loan of credit thereof within the meaning of any
constitutional or statutory provision, nor shall any of the Bonds constitute or give nse to a
pecuniary liabilty of the Issuer or a charge against its general credit or taxing powers.
Any term used herein as a defined term but not defined herein shall be defined as in the
Indenture.
In the manner hereinafter provided and subject to the provisions of the Indenture, the
term of the Bonds wil be divided into consecutive Rate Penods during each of which the Bonds
shall bear interest at the lesser of (a) Maximum Interest Rate (as defined in the Indenture) or (b)
either, the Daily Interest Rate (the "Daily Interest Rate Period"), the Weekly Interest Rate (the
A-3 Series 20lOA Trust Indenture
"Weekly Interest Rate Period"), the Term Interest Rate (the "Term Interest Rate Period") or the
Flexible Interest Rate (the "Flexible Interest Rate Period"). Rate Periods for this Bond shall be
determined in accordance with the Indenture.
This Bond shall bear interest from the Interest Payment Date next preceding the date of
registration and authentication hereof unless it is registered and authenticated after a Record Date
and on or pnor to the related Interest Payment Date, in which event this Bond shall bear interest
from such Interest Payment Date, or unless this Bond is registered and authenticated before the
Record Date for the first Interest Payment Date, in which event this Bond shall bear interest from
the Issue Date; provided, however, that if, as shown by the records of the Paying Agent, interest
on the Bonds shall be in default, Bonds issued in exchange for Bonds surrendered for transfer or
exchange shall bear interest from the last date to which interest has been paid in full or duly
provided for on the Bonds. or, if no interest has been paid or duly provided for on the Bonds,
from the Issue Date. Interest shall be computed, (a) in the case of a Term Interest Rate Penod,
on the basis of a 360-day year consisting of twelve 30-day months, and (b) in the case of any
other Rate Period, on the basis of a 365 or 366 day year. as appropriate, for the actual number of
days elapsed. The term "Interest Payment Date" means (i) with respect to any Daily or Weekly
Interest Rate Period. the first Business Day of each calendar month, (ii) with respect to any Term
Interest Rate Period, any day in the sixth month following the commencement of the Term
Interest Rate Period and any day in each sixth month thereafter, and the day following the last
day of a Term Interest Rate Penod, (iii) with respect to any Aexible Segment, the Business Day
next succeeding the last day thereof, and (iv) with respect to any Rate_Period, the day next
succeeding the last day thereof. The term "Business Day" means any day except a Saturday,
Sunday or other day (a) on which commercial banks located in the cities in which the Pnncipal
Office of the Trustee, the Pnncipal Office of the Provider. the Pnncipal Office of the Company,
the Pnncipal Office of the Remarketing Agent or the Pnncipal Ofice of the Paying Agent are
located are required or authorized by law to remain closed or are closed, or (b) on which The
New York Stock Exchange is closed.
The Bonds shall be deliverable in the form of registered Bonds without coupons in the
following denominations: (i) $100,00 or any integral multiple of $5,000 in excess of $100,00
when the Bonds bear interest at a Daily, a Weekly or a Aexible Interest Rate; and (ii) $5,00 or
integral multiples of $5,00 when the Bonds bear interest at a Term Interest Rate (such
denominations being referred to herein as "Authorized Denominations").
As provided in the Loan Agreement, the Company may, at its option, provide for a
Change of Credit Facilty, which includes the delivery or termination (or a combination thereof)
of one or more letters of credit, bond insurance policies, standby bond purchase agreements,
lines of credit. First Mortgage Bonds, other Company mortgage bonds or other secunty
instruments or liquidity devices. Also, as provided in the Loan Agreement, the Company may
provide or replace Additional Collateral which includes first or other mortgage bonds or other
collateral.
During each Daily Interest Rate Period, the Bonds shall bear interest at a Daily Interest
Rate, determined in accordance with the provisions of the Indenture by the Remarketing Agent
on each Business Day for such Business Day. If the Remarketing Agent shaH not have
A-4 Scncs 20lOA Trust Indenture
detennined a Daily Interest Rate for any day by 9:30 a.m., New York, New York time, the Daily
Interest Rate for such day shall be 100% of the most recent SIFM Swap Index.
During each Weekly Interest Rate Period, the Bonds shall bear interest at a Weekly Rate,
detennined in accordance with the provisions of the Indenture by the Remarketing Agent no later
than the first day of such Weekly Interest Rate Period and thereafter no later than Tuesday of
each week during such Weekly Interest Rate Period, unless any such Tuesday shall not be a
Business Day, in which event the Weekly Interest Rate shall be detennined by the Remarketing
Agent no later than the Business Day next preceding such Tuesday. If the Remarketing Agent
shall not have detennined a Weekly Interest Rate for any period, the Weekly Interest Rate shall
be 110% of the most recent SIFM Swap Index.
During each Tenn Interest Rate Period, the Bonds shall bear interest at the Tenn Interest
Rate, detennined in accordance with the provisions of the Indenture by the Remarketing Agent
on a Business Day selected by the Remarketing Agent but no more than 60 days prior to and not
later than the effective date of such Tenn Interest Rate Period.
During each Aexible Interest Rate Period, each Bond shall bear interest during each
Aexible Segment for such Bond at the Aexible Interest Rate for such Bond as described in the
Indenture. Each Aexible Segment and Aexible Interest Rate shall be detennined in accordance
with the provisions of the Indenture by the Remarketing Agent. Each Aexible Segment shall be
a period of not less than one nor more than 270 days.
Notwithstanding the foregoing provisions, if any Bonds constitute Pledged Bonds due to
a failure in remarketing such Bonds on a mandatory tender date, the Remarketing Agent shall be
entitled to detennine a new Daily Interest Rate, Weekly Interest Rate or Aexible Interest Rate
with respect to such Bonds, as appropriate (in accordance with the tenns of, and under the
conditions and subject to the limitations provided in, the Indenture), effective on such date as the
Remarketing Agent is able to remarket such Pledged Bonds in whole.
At the times and subject to the conditions set fort in the Indenture, the Company may
elect that the Bonds shall bear interest at an interest rate, and for a period, different from those
then applicable. The Trustee shall give notice of any such adjustment to the owners of the Bonds
not less than 15 days prior to the effective date of such adjustment. Notwithstanding anything in
the Indenture to the contrary, the Company may rescind any such election and the Bonds wil
then bear interest as provided in the Indenture.
During any Daily Interest Rate Period, any Bond or porton thereof in an Authorized
Denomination shall be purchased at the option of the Owner thereof on any Business Day at a
purchase price equal to 100 of the principal amount thereof plus accrued interest, if any, from
the Interest Payment Date next preceding the date of purchase to the date of purchase (unless the
date of purchase shall be an Interest Payment Date, in which case the purchase price shall be
equal to the principal amount thereof) upon (a) delivery to the Trustee at the Delivery Office of
the Trustee and to the Remarketing Agent at the Prncipal Office of the Remarketing Agent, by
not later than 10:00 a.m., New York, New York time, on such Business Day, of an irrevocable
written notice (which may be by facsimile or other writing), which states the principal amount
A-5 Series 20 lOA Trust Indentur
and the certificate number (if the Bonds are not then held in book entr form) of such Bond and
the date on which the same shaH be purchased, and (b) except when a bok-entr system is in
effect for the Bonds, delivery of such Bond to the Trustee at the Delivery Office of the Trustee,
accompanied by an instrment of transfer thereof, in a form satisfactory to the Trustee, executed
in blank by the owner thereof with the signature of such owner guaranteed by a member or
participant in a "signature guarantee program" as provided in the form of assignment attached
to such Bond, at or prior to 1:00 p.m., New York, New York time, on the date specified in such
notice.
During any Weekly Interest Rate Penod, any Bond or portion thereof in an Authorized
Denomination shall be purchased at the option of the Owner thereof on any Business Day at a
purchase price equal to 100% of the pnncipal amount thereof plus accrued interest, if any, from
the Interest Payment Date next preceding the date of purchase to the date of purchase (unless the
date of purchase shall be an Interest Payment Date, in which cas the purchase price shall be
equal to the principal amount thereof), upon (a) delivery to the Trustee at the Delivery Office of
the Trustee of an irrevocable written notice (which may be by facsimile or other writing), by
5:00 p.m., New York, New York time, on any Business Day, which states the pnncipal amount
of such Bond and the certificate number (if the Bonds are not held in bok-entry form) and the
date on which the same shall be purchased, which date shall not be pnor to the seventh day next
succeeding the date of the delivery of such notice to the Trustee, and (b) except when a bok-
entry system is in effect for the Bonds, delivery of such Bond to the Trustee at the Delivery
Office of the Trustee, accompanied by an instrument of transfer thereof, in a form satisfactory to
the Trustee, executed in blank by the Owner thereof with the signature of such Owner guaranteed
by a member or partcipant in a "signature guarantee program" as provided in the form of
assignment attched to such Bond, at or prior to 1:00 p.m., New York, New York time, on the
date specified in such notice.
Any bond or portion thereof in an Authorized Denomination shall be purchased at the
option of the Owner thereof on the first day of any Term Interest Rate Period which is preceded
by a Term Interest Rate Period of equal duration at a purchase price equal to 100% of the
pnncipal amount thereof, upon (i) delivery to the Trustee at the Delivery Office of the Trustee of
an irrevocable notice in writing by 5:00 p.m., New York, New York time, on any Business Day
not less than fifteen days before the purchase date, which states the principal amount and
certificate number (if the Bonds are not then held in book-entr form) of such Bond to be
purchased and (ii) except when a book-entry system is in effect for the Bonds, delivery of such
Bond to the Trustee at the Delivery Office of the Trustee, accompanied by an instrument of
transfer thereof, in a form satisfactory to the Trustee, executed in blank by the Owner thereof
with the signature of such Owner guaranteed by a member or partcipant in a "signature
guarantee program" as provided in the form of assignment attched to such Bond, at or prior to
1:00 p.m., New York, New York time, on the purchase date.
"Record Date" means (a) with respect to any Interest Payment Date in respect of any
Daily Interest Rate Period, Weekly Interest Rate Period or Flexible Segment, the Business Day
next preceding such Interest Payment Date, (b) with respect to any Interest Payment Date in
respect of any Term Interest Rate Period, the fifteenth day of the month preceding such Interest
Payment Date (except as provided in the following clause (c); and (c) for any Interest Payment
A-6 Series iOlOA Trust Indnture
Date established pursuant to clause (d) of the definition of "Interest Payment Date" in
Section 1.01 of the Indenture in respect of a Term Interest Rate Period, the Business Day next
preceding such Interest Payment Date.
In each case in which a portion of a Bond is purchased, both the portion so purchased and
the porton of such Bond not so purchased shall be in Authorized Denominations.
This Bond shall be subject to mandatory purchase at a purchase price equal to 100% of
the principal amount thereof to the purchase date plus accrued interest, if any, to the purchase
date: (a) on the effective date of any change in a Rate Period with respect to this Bond other than
the effective date of a Term Interest Rate Penod which was preceded by a Term Interest Rate
Period of the same duration; (b) during any flexible Interest Rate Period, on the day next
succeeding the last day of any flexible Segment thereof; (c) in connection with a Change of
Credit Facilty, as provided in Section 3.02(a)(iii) of the Indenture; (d) on the second Business
Day following the day that the Trustee receives notice from the Provider that, following a
drawing on a Credit Facility that consists of a direct pay letter of credit (on an Interest Payment
Date for the payment of unpaid interest on the Bonds), such Credit Facility wil not be reinstated
in accordance with its terms; (e) as to any Bond, if a Credit Facilty is in effect, on the second
Business Day following the day that the Trustee receives notice from the Provider directing such
mandatory purchase upon the occurrence and continuance of an event of default under the Credit
Facility Agreement; or (f) as to each Bond in a Daily Interest Rate Period or a Weekly Interest
Rate Period, on any Business Day designated by the Company, with the consent of the Provider
and the Remarketing Agent.
The Bonds are also subject to mandatory purchase during any Term Interest Rate Period
on a day that the Bonds would be subject to optional redemption pursuant to Section 4.02(b)(iii)
of the Indenture, at a purchase price equal to i 00% the principal amount thereof plus an amount
equal to any premium which would have been payable on such redemption date had the Bonds
been redeemed if the Company gives notice to the Trustee on or before the Business Day prior to
the redemption date that it elects to have the Bonds purchased in lieu of redemption. If the
Bonds are purchased on or prior to the Record Date, the purchase price shall include accrued
interest from the Interest Payment Date next preceding the date of purchase to the date of
purchase (unless the date of purchase shall be an Interest Payment Date, in which case the
purchase price shall be equal to the amount specified in the preceding sentence). If the Bonds
are purchased after the Record Date, the purchase price shall not include accrued interest.
By ACCEPTANCE OF THIS BOND, THE REGISTERED OWNER HEREBY AGREES THAT, IF
THIS BOND IS TO HE PURCHASED AND IF MONEYS SUffCIENT TO PAY THE PURCHASE PRICE
SHALL BE HELD BY THE TRUSTEE ON THE DATE THIS BOND IS TO BE PURCHASED, THIS BOND
SHALL BE DEEMED TO HAVE BEEN PURCHASED AND SHAL BE PURCHASED ACCORDING OF THE
INDENTURE, WHEfHER OR NOT THIS BOND SHALL HAVE BEEN DELIVERED TO THE TRUSTEE,
AND THE OWNER OF THIS BOND SHALL HAVE NO CLAIM HEREON, UNDER THE INDENTURE OR
OTHERWISE, FOR ANY AMOUNT OTHER THAN THE PURCHASE PRICE HEREOF.
The Bonds shall be redeemed in whole or in part, and if in part by lot, at any time at a
redemption pnce equal to the principal amount thereof plus accrued interest to the redemption
A-7 Senes 20IOA Trust Indentur
date upon receipt by the Trustee of a written notice from the Company stating that any of the
following events has occurred and that the Company therefore intends to exercise its option to
prepay the payments due under the Loan Agreement in whole or in part and thereby effect the
redemption of Bonds in whole or in par to the extent of such prepayments: (a) the Company
shall have determined or concurred in a determination that the continued operation of the Plant is
impracticable, uneconomical or undesirable for any reason; (b) all or substantially all of the Plant
shall have been condemned or taken by eminent domain; (c) the operation of the Plant shall have
been enjoined or shall have otherwise been prohibited by, or shall conflct with, any order,
decree, rule or regulation of any court or of any federal, state or local regulatory boy,
administrative agency or other governmental body; (d) unreasonable burdens or excessive
liabilties shall have been imposed upon the Company in respect of all or a part of the Pollution
Control Facilities or the Plant including, without limitation, federal, state or other ad valorem,
property, income or other taxes not being imposed on the date of the Loan Agreement, as well as
any statute or regulation enacted or promulgated after the date of the Loan Agreement that
prevents the Company from deducting interest in respect of the Agreement for federal income
tax purposes; or (e) all or substantially all of the Project shall be transferred or sold to any entity
other than an affliate of the Company.
The Bonds shall be subject to redemption upon prepayment of the Loan Payments at the
option of the Company, in whole, or in part by lot, prior to their maturity, as follows:
(a) While the Bonds bear interest at a Aexible Interest Rate or Rates, each
Bond shall be subject to such redemption on the day next succeeding the last day of each
Flexible Segment for such Bond at a redemption price equal to 100% of the principal
amount thereof.
(b) While the Bonds bear interest at a Daily Interest Rate or a Weekly Interest
Rate, the Bonds shall be, with the consent of the Provider, subject to such redemption on
any Business Day at a redemption price equal to 100% of the principal amount thereof,
plus accrued interest, if any, to the redemption date.
(c) While the Bonds bear interest at a Term Interest Rate, the Bonds shall be
subject to such redemption (l) on the day next succeeding the last day of each Term
Interest Rate Period at a redemption price equal to the principal amount of the Bonds
being redeemed plus accrued interest, if any, to the redemption date and (2) either (i) on
the redemption dates and at the redemption prices specified by the Company pursuant to
the next succeeding paragraph or (ii) dunng the redemption periods specified below, in
each case in whole or in part, at the redemption prices (expressed as percentages of
principal amount) hereinafter indicated plus accrued interest, if any, to the redemption
date:
A-8 Series 20lOA Trust Indenture
LENGTH OF TERM
INTEREST RATE PERIOD REDEMPTION DATES AND PRICES
Greater than or equal to 11 years At any time on or after the first day of the
calendar month following the tenth anniversary of
the effective date at 102% declining 1 % annually
to 100%
Less than 1 I years Not redeemable
With respect to any Term Interest Rate Period, the Company may specify redemption
provisions, prices and periods other than those set forth above; provided, however, at the time of
such specification, the Company shall provide a Favorable Opinion of Bond Counsel to the
effect that the proposed action is not prohibited by the laws of the State and the Indenture and
wil not adversely affect the Tax-Exempt status of the Bonds.
The Bonds shaJI be redeemed in whole on any date from amounts which are to be prepaid
by the Company under the Loan Agreement, at a redemption price equal to 100% of the principal
amount thereof plus interest accrued, if any, to the redemption date within 180 days after the
occurrence of a Determination of Taxability; provided that if, in the Favorable Opinion of Bond
Counsel delivered to the Trustee, the redemption of a specified portion of the Bonds outstanding
would have the result that interest payable on the Bonds remaining outstanding after such
redemption would remain Tax-Exempt, then the Bonds shall be redeemed in part by lot (in
Authorized Denominations), in such amount as Bond Counsel in such opinion shall have
determined is necessary to accomplish that result.
A "Determination of Taxability" shall be deemed to have occurred if as a result of theCompany's failure to observe any covenant, agreement or representation in the Loan Agreement,
a final decree or judgment of any federal court or a final action of the Internal Revenue Service
determines that interest paid or payable on any Bond is or was includible in the gross income of
an Owner of the Bonds for federal income tax purposes under the Code (other than an Owner
who is a "substantial user" or "related person" within the meaning of Section 103(b)(J3) of the1954 Code). However, no such decree or action wil be considered final for this purpse unless
the Company has been given written notice and, if it is so desired and is legally aJIowed, has
been afforded the opportunity to contest the same, either directly or in the name of any Owner of
a Bond, and until conclusion of any appellate review, if sought.
Notice of any optional or mandatory redempton shall be given by first-class mail not less
than 15 days nor more than 60 days prior to the date fixed for redemption to the Owners of
Bonds at the address shown on the registration boks of the Registrr on the date such notice is
mailed. Such notice shall state, among other things, that such redemption shall be conditional
upon the receipt of Available Moneys suffcient to pay the pnncipal of, and premium, if any, and
interest on such Bonds to be redeemed. In the event such Available Moneys are (a) not so
received, (b) no longer sufficient to pay the principal of, and premium, if any, and interest on,
such Bonds or (c) no longer considered Available Moneys, in each case, on the redemption date;
the redemption shall not be made and the Trustee shall within a reasonable time thereafter give
A-9 Series 20lOA Trust Indenture
notice, in the manner in which the notice of redemption was given, that such redemption wil not
take place. If less than all of the Bonds are called for redemption, the Trustee shall select the
Bonds or any given portion thereof from the outstanding Bonds or such given porton thereof not
previously called for redemption, by lot. For the purpose of any such selection the Trustee shall
assign a separate number for each minimum Authorized Denomination of each Bond of a
denomination of more than such minimum; provided that, following any such selection, both the
portion of such Bond to be redeemed and the portion remaining shall be in Authorized
Denominations. Notwithstanding the foregoing provisions, Pledged Bonds shall be redeemed
prior to any other Bonds.
Subject to the limitations and upon payment of the charges, if any, provided in the
Indenture, Bonds may be exchanged at the Prncipal Offce of the Registrar for a like aggregate
principal amount of Bonds of the same tenor and of Authonzed Denominations.
This Bond is trnsferable by the person in whose name it is registered, in person, or by its
attorney duly authorized in writing, at the Prncipal Ofce of the Registrar, but only in the
manner, subject to the limitations and upon payment of the charges provided in the Indenture,
and upon surrender and cancellation of this Bond accompanied by a written instrment of
transfer in a form approved by the Registrar, duly executed. Upon such transfer a new fully
registered Bond or Bonds in Authorized Denominations, for the same aggregate principal
amount, wil be issued to the transferee in exchange therefor.
The Issuer, the Registrar, the Trustee and any agent of the Issuer, the Registrar or the
Trustee may treat the person in whose name this Bond is registered as the owner hereof for the
purpse of receiving payment as herein provided and for all other purpses, whether or not this
Bond be overdue, and neither the Issuer, the Registrar, the Trustee, any paying agent nor any
such agent shall be affected by notice to the contrary.
The Bonds are equally and ratably secured, to the extent provided in the Indenture, by the
pledge thereunder of the "Revenues," which term is used herein as defined in the Indenture and
which as therein defined means all moneys paid or payable to the Trustee for the account of the
Issuer in accordance with the Loan Agreement, including all moneys drawn under or paid on the
Credit Facility and deposited in the Bond Fund and the Credit Facilty Fund to pay principal of
the Bonds (and premium, if any, on the Bonds if covered by such Credit Facilty) upon
redemption, at maturity or upon acceleration of maturity, or to pay interest on the Bonds when
due, and all receipts credited under the provisions of the Indenture against such payments;
provided, however, that "Revenues" shall not include moneys held by the Trustee to pay the
purchase price of Bonds subject to purchase pursuant to the Indenture. The Issuer has also
pledged and assigned to the Trustee as security for the Bonds aU other nghts and interests of the
Issuer under the Loan Agreement (other than its rights to indemnification and certin
administrative expenses and certain other nghts).
The Owner of this Bond shall have no right to enforce the provisions of the Indenture, or
to institute action to enforce the covenants therein, or to take any action with respect to any
Event of Default under the Indenture, or to institute, appear in or defend any suit or other
proceeding with respect thereto, except as provided in the Indenture.
A-lO Series 2010A Trust Indenture
With certin exceptions as provided therein, the Indenture and the Loan Agreement may
be modified or amended only with the consent of the Provider (unless a Provider Default as
specified in the Indenture shall have occurred and be continuing) and the Owners of not less than
60% in aggregate principal amount of aH Bonds then Outstanding under the Indenture.
Reference is hereby made to the Indenture, the Loan Agreement, the Credit Facility and
the Tax Certificate, copies of which are on file with the Trustee, for the provisions, among
others, with respect to the nature and extent of the rights, duties and obligations of the Issuer, the
Company, the Trustee, the Registrar, the Remarketing Agent, the Provider and the Owners of the
Bonds. The Owner of this Bond, by the acceptance hereof, is deemed to have agreed and
consented to and to be bound by the terms and provisions of the Indenture, the Loan Agreement
and the Tax Certificate.
The Indenture prescnbes the manner in which it may be discharged, including, except as
otherwise provided in the Indenture, (a) a provision that the Bonds shall be deemed to be paid if
moneys, which constitute Available Moneys or moneys drawn or paid on the Credit Facility
(other than a Credit Facilty that consists solely of a facility on which the Company or any
affliate thereof is the obligor), sufficient to pay the principal of, premium, if any, and interest on
the Bonds and aU necessary and proper fees, compensation and expenses of the Trustee, the
Registrar, the Provider and the Remarketing Agent, shaH have been deposited with the Trustee,
after which the Bonds shall no longer be secured by or entitled to the benefits of the Indenture,
except for the purpses of registration and exchange of Bonds and of delivery of the Bonds to the
Trustee for purchase, and (b) a provision that, if the Bonds mature or are called for redemption
pnor to the next date upon which the Bonds are subject to purchase pursuant to the Indenture,
and if the Company waives its right to adjust the interest rate borne by the Bonds, the Bonds
shall be deemed to be paid if (i) moneys, which shall be Available Moneys or moneys drawn
under or paid on the Credit Facility (other than a Credit Facility that consists solely of a facilty
on which the Company or any affiliate thereof is the obligor), suffcient to make such payment,
and/or Government Obligations purchased with Available Moneys or moneys drawn under or
paid on the Credit Facilty (other than a Credit Facility that consists solely of a facilty on which
the Company or any affiiate thereof is the obligor) and maturing as to pnncipal and interest in
such amounts and at such times as to insure, without reinvestment, the availability of suffcient
moneys to pay the principal of, premium, if any, and interest on the Bonds and aJl necessary and
proper fees, compensation and expenses of the Trustee and the Registrar, shall have been
deposited with the Trustee, after which the Bonds shaH no longer be secured by or entitled to the
benefits of the Indenture, except for the purpses of registration and exchange of Bonds and of
such payment.
No recourse shall be had for the payment of the principal of, premium, if any, or interest
on any of the Bonds or for any claim based thereon or upon any obligation, covenant or
agreement in the Indenture contained, against any past, present or future officer, elected official
agent or employee of the Issuer, or any incorporator, offcer, director or member of any
successor corpration, as such, either directly or through the Issuer or any successor corpration,
under any rule of law or equity, statute or constitution or by the enforcement of any assessment
or penalty or otherwise, and all such liability of any such incorporator, officer, director or
A-JI Series 2OlOA Trust Indenture
~
member is hereby expressly waived and released as a condition of and in consideration for the
execution of the Indenture and the issuance of any of the Bonds.
IT IS HEREBY CERTIHED, RECITED AND DECLARED that all acts, conditions and things
required to exist, happen and be performed precedent to and in the execution and delivery of the
Indenture and the issuance of this Bond do exist, have happened and have been performed in due
time, form and manner as required by law, and that the issuance of this Bond and the issue of
which it forms a part, together with all other obligations of the Issuer, does not exceed or violate
any constitutional or statutory limitation of indebtedness.
This Bond shall not be entitled to any security or benefit under the Indenture, or be valid
or become obligatory for any purpse, until this Bond shall have been authenticated by the
execution by the Registrar of the certficate of authentication inscribed hereon.
IN WITNESS WHEROF, CIT OF FORSYTH, MONTANA, has caused this Bond to be
executed in its name with the signature of its Mayor and attested by the signature of its City
Clerk-Treasurer, all as ofthe Issue Date specified above.
CIT OF FORSYTH , MONTANA
By:
Mayor
(SEAL)
ATTEST:
City Clerk-Treasurer
A-12 Series iOlOA Trust Indnture
"
(FORM OF TRUSTEE'S CERTIFICATE)
CERTIFICATE OF AUTHENTICATION
This is to certfy that this Bond is one of the Bonds of the Series described in the within-
mentioned Indenture.
as Registrar
By:
Authonzed Signatory
Date of registration and authentication:
A-13 Series 2010A Trust Indenture
.
(FORM OF ASSIGNMENT)
The following abbreviations, when used in the inscnption on the face of the within Bond,
shall be construed as though they were wntten out in full according to applicable laws or
regulations.
TEN COM
TENENT
JTTEN
as tenants in common
as tenants by the entirety
as joint tenants with nght
of survivorship and not as
tenants in common
UNIF TRAN MIN ACT -
Custodian
(Cust) (Minor)
under Unifonn Transfers to Minors Act of
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto
¡
Insert Social Secunty or Other
Identifying Number of Assignee
(Please Print or Typewrite Name and Address of Assignee)
the within Bond of CITY OF FORSYT, MONTANA, and hereby irrevocably c~nstitutes and
appoints
attorney to register the transfer of the Bond on the books kept for registration thereof, with full
power of substitution in the premises.
DATED:
SIGNATURE GUARANTEED:
SIGNATURE:
NOTICE: Signature(s) must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Bond Registrr, which requirements include membership or participation in
STAMP or such other "signature guarantee program" as may be detennined by the Bond
Registrar in addition to, or in substitution for, STAMP, all in accordance with the Secunties and
Exchange Act of 1934, as amended.
NOTICE: The signature to this assignment must correspond with the name as it appears upon the
face of the within Bond in every particular, without alteration or enlargement or any change
whatever.
A-14 Series 20 lOA Trust Indenture