EXHIBIT 4.5
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AVISTA CORPORATION
TO
JPMORGAN CHASE BANK, N.A.,
TRUSTEE
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SUPPLEMENTAL INDENTURE NO. 1
DATED AS OF DECEMBER 1, 2004
SUPPLEMENTAL TO
INDENTURE, DATED AS OF APRIL 1, 1998
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DELIVERY TO TRUSTEE
OF
FIRST MORTGAGE BONDS, COLLATERAL SERIES 2004A
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SUPPLEMENTAL INDENTURE NO. 1, dated as of December 1, 2004, between AVISTA
CORPORATION, a corporation organized and existing under the laws of the State of
Washington (hereinafter sometimes called the "Company"), and JPMORGAN CHASE
BANK, N.A., a national banking corporation and successor to The Chase Manhattan
Bank, trustee (hereinafter sometimes called the "Trustee"), under the Indenture,
dated as of April 1, 1998 (hereinafter called the "Original Indenture"), this
Supplemental Indenture No. 1 being supplemental thereto. The Original Indenture
and any and all indentures and instruments supplemental thereto are hereinafter
sometimes collectively called the "Indenture."
RECITALS OF THE COMPANY
The Original Indenture was duly authorized, executed and delivered by the
Company to provide for the issuance from time to time of its Securities; to be
issued in one or more series as contemplated therein;
The Company has heretofore executed and delivered to the Trustee the
Series C Officer's Certificate establishing the Series C Notes (as such terms
are hereinafter defined) as a series of Securities under the Indenture; and the
Company has heretofore issued, and there remain outstanding, the Series C Notes
as set forth in Schedule A hereto.
The Company has heretofore established and issued hereunder Securities in
addition to the Series C Notes, but none of such additional Securities remain
Outstanding.
The Company desires to deliver to the Trustee, as Secured Obligations (as
hereinafter defined), $88,850,000 in aggregate principal amount of its First
Mortgage Bonds, Collateral Series 2004A, issued under the Mortgage.
The Company further desires to set forth the terms and conditions under
which Collateral Bonds (as hereinafter defined) shall be delivered to and held
by the Trustee.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 1 WITNESSETH, that, in
consideration of the premises and of the purchase of the Benefitted Securities
(as hereinafter defined) by the Holders thereof, and in order to provide for the
delivery to the Trustee of the Company's First Mortgage Bonds, Collateral Series
2004A, and to set forth the terms and conditions relating to the surrender,
transfer and voting of, the application of payments on and other matters in
respect of, the Collateral Bonds (as hereinafter defined), the Company hereby
covenants and agrees to and with the Trustee, for the equal and ratable benefit
of all Holders of Benefitted Securities from time to time Outstanding, as
follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. TERMS DEFINED IN ORIGINAL INDENTURE.
All capitalized terms used herein without definition have the meanings
assigned thereto in the Original Indenture.
SECTION 1.02. TERMS DEFINED IN SERIES C OFFICER'S CERTIFICATE.
The terms
"BENEFITTED SECURITIES"
"DEBT"
"EXCEPTED PROPERTY"
"LIEN"
"PERMITTED SECURED DEBT"
"SECURED OBLIGATIONS"
have the meanings assigned thereto in the Series C Officer's Certificate.
SECTION 1.03. ADDITIONAL TERMS.
The following additional terms have the meanings indicated, unless the
context otherwise requires:
"COLLATERAL BONDS" means the First Mortgage Bonds, Collateral Series
2004A, and all other bonds issued and authenticated under the Mortgage and
delivered to and held by the Trustee as Secured Obligations.
"MORTGAGE" means the Mortgage and Deed of Trust, dated as of June 1, 1939,
between the Company and Citibank, N.A., successor trustee, as amended and
supplemented.
"MORTGAGE TRUSTEE" means the trustee under the Mortgage.
"SERIES C NOTES" means the Company's Medium-Term Notes, Series C,
established as a series of Securities under the Indenture.
"SERIES C OFFICER'S CERTIFICATE" means the Officer's Certificate, dated
April 24, 1998, executed by an Authorized Officer of the Company and delivered
to the Trustee, establishing the Series C Notes as a series of Securities under
the Indenture.
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ARTICLE TWO
THE COLLATERAL BONDS
SECTION 2.01. DELIVERY OF COLLATERAL BONDS
(a) In order to provide the benefit of the lien of the Mortgage to
secure the obligation of the Company to pay the principal of the Benefitted
Securities, the Company hereby delivers to the Trustee its First Mortgage Bonds,
Collateral Series 2004A issued, authenticated and delivered under the Mortgage
in the respective principal amounts, and with the respective stated maturity
dates, set forth below:
Aggregate Principal Amount Stated Maturity Date
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$13,850,000 December 10, 2007
25,000,000 December 10, 2007
25,000,000 October 26, 2010
25,000,000 June 19, 2028
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$88,850,000
The First Mortgage Bonds, Collateral Series 2004A, do not bear interest.
The Trustee hereby acknowledges receipt of the First Mortgage Bonds,
Collateral Series 2004A.
(b) It is recognized that the Company may establish one or more
additional series of Benefitted Securities under the Indenture after the date
hereof and, in connection with the establishment of each such series of
Benefitted Securities, deliver to the Trustee, as Secured Obligations,
additional Collateral Bonds of one or more series, as contemplated in the Series
C Officer's Certificate and as to be so contemplated in the Officer's
Certificate establishing such additional series of Benefitted Securities. All
Collateral Bonds delivered to the Trustee are and are to be so delivered to, and
shall be held by, the Trustee subject to the terms and provisions set forth in
this Article Two.
SECTION 2.02. REGISTRATION AND OWNERSHIP OF COLLATERAL BONDS.
The Collateral Bonds shall be registered in the name of the Trustee or its
nominee and shall be owned and held by the Trustee, subject to the provisions of
this Indenture, for the benefit of the Holders of all Benefitted Securities from
time to time Outstanding, and the Company shall have no interest therein. The
Trustee shall be entitled to exercise all rights of securityholders under the
Mortgage either in its discretion or as otherwise provided in this Supplemented
Indenture.
SECTION 2.03. PAYMENTS ON COLLATERAL BONDS.
(a) Any payment by the Company of principal of or premium or
interest on the Collateral Bonds of any series and stated maturity shall be
applied by the Trustee to the payment of any principal, premium or interest, as
the case may be, in respect of the Benefitted Securities of the corresponding
series and Stated Maturity which
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is then due, and, to the extent of such application, the obligation of the
Company hereunder to make such payment in respect of such Benefitted Securities
shall be deemed to have been satisfied and discharged.
If, at the time of any such payment of principal of Collateral Bonds of
any series and stated maturity, there shall be no principal then due in respect
of the Benefitted Securities of the corresponding series and stated maturity,
such payment in respect of the Collateral Bonds shall be held by the Trustee and
applied to the payment of principal of such Benefitted Securities from time to
time as such principal becomes due. Pending such application, proceeds of the
payment of principal of such Collateral Bonds shall, at the direction of the
Company evidenced by Company Order, be invested in Eligible Obligations maturing
on or prior to the Stated Maturity of such Benefitted Securities; it being
understood that, subject to the terms and provisions of Article Six of the
Original Indenture, such proceeds, together with other moneys deposited with or
held by the Trustee, may be applied as provided in said Article Six.
If, at the time of any such payment of premium or interest on Collateral
Bonds of any series and stated maturity, there shall be no premium or interest,
as the case may be, then due in respect of the Benefitted Securities of the
corresponding series and maturity, such payment in respect of such Collateral
Bonds shall be remitted to the Company upon receipt by the Trustee of a Company
Order requesting the same, together with an Officer's Certificate stating that
no Event of Default has occurred and is continuing; provided, however, that, if
an Event of Default shall have occurred and be continuing, such proceeds shall
be held by the Trustee until such Event of Default shall have been cured or
waived.
(b) Any payment by the Company hereunder of principal of or
premium or interest on Benefitted Securities of any series and Stated Maturity
(other than by the application of the proceeds of a payment in respect of
Collateral Bonds) shall, to the extent thereof, be deemed, for all purposes of
the Indenture, to satisfy and discharge the obligation of the Company, if any,
to make a payment of principal, premium or interest, as the case may be, in
respect of the Collateral Bonds of the corresponding series and maturity which
is then due.
(c) (i) The Trustee hereby waives notice of any mandatory
redemption of Collateral Bonds.
(ii) The Trustee hereby waives notice of any optional
redemption of Collateral Bonds, as such notice would otherwise be
required by the Mortgage; provided, however, that in the event of
any such optional redemption, the Company shall, not less than three
Business Days prior to the Redemption Date, provide written notice
to the Trustee of such optional redemption in the manner set forth
in Section 105 of the Indenture.
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SECTION 2.04. SURRENDER OF COLLATERAL BONDS.
At the time any Benefitted Securities of any series and stated maturity
cease to be Outstanding (other than as a result of the application of the
proceeds of the payment or redemption of Collateral Bonds), the Trustee shall
surrender to, or upon the order of, the Company an equal principal amount of
Collateral Bonds of the corresponding series and maturity.
SECTION 2.05. NO TRANSFER OF COLLATERAL BONDS.
Anything in the Indenture to the contrary notwithstanding, the Trustee
shall not sell, assign or otherwise transfer any Collateral Bonds except to a
successor trustee under the Indenture and except as provided in Section 2.04.
The Company may take such actions as it shall deem necessary, desirable or
appropriate to effect compliance with such restrictions on transfer, including
the placing of a legend on each such Collateral Bond and the issuance of
stop-transfer instructions to the Mortgage Trustee or any other transfer agent
under the Mortgage.
SECTION 2.06. VOTING OF COLLATERAL BONDS.
The Trustee shall, as the holder of the Collateral Bonds, attend such
meeting or meetings of bondholders under the Mortgage or, at its option, deliver
its proxy in connection therewith, as relate to matters with respect to which
it, as such holder, is entitled to vote or consent. So long as no Event of
Default under the Indenture shall have occurred and be continuing, either at any
such meeting or meetings, or otherwise when the consent of the holders of the
Collateral Bonds outstanding under the Mortgage is sought without a meeting, the
Trustee shall vote as holder of the Collateral Bonds, or shall consent with
respect thereto, proportionately with the vote or consent of the holders of all
other bonds outstanding under the Mortgage the holders of which are eligible to
vote or consent, as indicated in a Mortgage Bondholder's Certificate delivered
to the Trustee; provided, however, that the Trustee shall not so vote in favor
of, or so consent to, any amendment or modification of the Mortgage which, if it
were an amendment or modification of the Indenture, would require the consent of
Holders, without the prior consent, obtained in the manner prescribed in Section
1102 of the Original Indenture, of Holders of Securities which would be required
under said Section 1102 for such an amendment or modification of the Indenture.
For purposes of this Section, "Mortgage Bondholder's Certificate" means a
certificate signed by the temporary chairman, the temporary secretary, the
permanent chairman, the permanent secretary, or an inspector of votes at any
meeting or meetings of bondholders under the Mortgage, or by the Mortgage
Trustee in the case of consents of such bondholders which are sought without a
meeting, which states what the signer thereof reasonably believes will be the
proportionate votes or consents of the holders of all bonds (other than the
Collateral Bonds delivered to and held by the Trustee) outstanding under the
Mortgage and counted for the purposes of determining whether such bondholders
have approved or consented to the matter put before them.
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SECTION 2.07. DISCHARGE OF MORTGAGE.
The Trustee shall surrender for cancellation to the Mortgage Trustee all
Collateral Bonds then held by it upon receipt by the Trustee of:
(a) a Company Order requesting such surrender for cancellation of
such Collateral Bonds;
(b) an Officer's Certificate to the effect that no bonds are
outstanding under the Mortgage other than Collateral Bonds held by the Trustee
and that promptly upon such surrender the Mortgage will be satisfied and
discharged pursuant to the terms thereof;
(c) an Opinion of Counsel to the effect that, or a report of a
title insurance company demonstrating that, upon satisfaction and discharge of
the Mortgage, the property formerly subject to the Lien of Mortgage, to the
extent the same is property of the Company and does not constitute Excepted
Property, will be subject to no Lien which secures Debt other than Permitted
Secured Debt; and
(d) copies of the instruments of conveyance, assignment and
transfer, if any, specified in the Opinion of Counsel or title report delivered
pursuant to clause (c) above.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.01. MISCELLANEOUS
This Supplemental Indenture No. 1 is a supplement to the Indenture. As
supplemented by this Supplemental Indenture No. 1, the Indenture is in all
respects ratified, approved and confirmed, and the Indenture and this
Supplemental Indenture No. 1 shall together constitute one and the same
instrument.
The recitals contained herein shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Supplemental Indenture No. 1.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 1 to be duly executed as of the day and year first above written.
AVISTA CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. Malqist
Title: Senior Vice President, Chief
Financial Officer and Treasurer
JPMORGAN CHASE BANK, N.A., Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SCHEDULE A
BENEFITTED SECURITIES OUTSTANDING
SERIES OF SERIES PRINCIPAL
SECURITIES DESIGNATION AMOUNT STATED MATURITY
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1 Medium-Term
Notes, Series C $13,850,000 Dec. 10, 2007
25,000,000 Dec. 10, 2007
25,000,000 Oct. 26, 2010
25,000,000 June 19, 2008
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$88,850,000