AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 2, 1999
REGISTRATION NO. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
AVISTA CORPORATION
(Exact name of Registrant as specified in its charter)
WASHINGTON 91-0462470
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1411 East Mission Avenue
Spokane, Washington 99202
(509) 489-0500
(Address, including zip code, and telephone
number, including area code, of
Registrant's principal executive
offices)
------------------------------------
J. E. ELIASSEN J. ANTHONY TERRELL
Senior Vice President and Thelen Reid & Priest LLP
Chief Financial Officer 40 West 57th Street
Avista Corporation New York, New York 10019
1411 East Mission Avenue (212) 603-2000
Spokane, Washington 99202
(509) 489-0500
(Name and address, including zip code, and telephone number, including area
code, of agents for service)
------------------------------------
It is respectfully requested that the
Commission send copies of all notices,
orders and communications to:
John E. Baumgardner, Jr.
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.[X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act of 1933, please check the following box
and list the Securities Act of 1933 registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act of 1933, check the following box and list the Securities Act
of 1933 registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================================================================================================
TITLE Amount Proposed Maximum Proposed Maximum
OF EACH CLASS OF to Be Offering Price Aggregate Offering Amount of
SECURITIES TO BE REGISTERED Registered Per Unit(1) Price(1)(2) Registration Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities................ $400,000,000 100% $400,000,000 $111,200
=================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
(2) Exclusive of accrued interest, if any.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JULY 2, 1999
PROSPECTUS
$400,000,000
AVISTA CORPORATION
DEBT SECURITIES
---------------
Avista Corporation may offer from time to time up to $400,000,000, in
principal amount of its debt securities, in one or more series, at prices and on
terms to be determined at the time of sale.
One or more supplements to this prospectus will indicate the terms of each
series of debt securities, and each tranche within a series including, where
applicable, the
o series designation,
o principal amount,
o stated maturity date,
o interest rate and interest payment dates,
o initial public offering price, and
o provisions for redemption, if any.
Avista Corp. may sell the debt securities to or through underwriters,
dealers or agents or directly to one or more purchasers. The applicable pricing
supplement will describe such offering of the debt securities.
---------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is _______ __, 1999
<PAGE>
THIS PROSPECTUS INCORPORATES BY REFERENCE IMPORTANT BUSINESS AND FINANCIAL
INFORMATION ABOUT AVISTA CORP. THAT IS NOT INCLUDED IN OR DELIVERED WITH THIS
PROSPECTUS. SEE "AVAILABLE INFORMATION". YOU MAY OBTAIN COPIES CONTAINING SUCH
INFORMATION FROM US, WITHOUT CHARGE, BY EITHER CALLING OR WRITING TO US AT:
AVISTA CORPORATION
POST OFFICE BOX 3727
SPOKANE, WASHINGTON 99220
ATTENTION: TREASURER
TELEPHONE: (509) 489-0500
TABLE OF CONTENTS
AVAILABLE INFORMATION....................................................... 4
AVISTA CORPORATION...........................................................5
USE OF PROCEEDS............................................................. 5
DESCRIPTION OF THE DEBT SECURITIES.......................................... 5
General............................................................... 6
Payment and Paying Agents............................................. 7
Registration and Transfer............................................. 7
Redemption............................................................ 8
Satisfaction and Discharge............................................ 8
Events of Default..................................................... 9
Remedies..............................................................10
Consolidation, Merger, Sale of
Assets and Other Transactions.........................................12
Modification of Indenture.............................................13
Duties of the Trustee; Resignation;
Removal...............................................................16
Evidence of Compliance................................................16
Governing Law.........................................................16
PLAN OF DISTRIBUTION........................................................16
LEGAL MATTERS...............................................................17
EXPERTS.....................................................................18
WE HAVE NOT AUTHORIZED ANYONE TO GIVE YOU ANY INFORMATION OTHER THAN THIS
PROSPECTUS AND THE USUAL SUPPLEMENTS TO THIS PROSPECTUS. YOU SHOULD NOT ASSUME
THAT THE INFORMATION CONTAINED OR INCORPORATED IN THIS PROSPECTUS IS ACCURATE AS
OF ANY DATE AFTER ___________, 1999, WHICH IS THE DATE OF THIS PROSPECTUS. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THE DEBT SECURITIES AND IT IS NOT SOLICITING
AN OFFER TO BUY THE DEBT SECURITIES IN ANY JURISDICTION IN WHICH THE OFFER IS
NOT PERMITTED.
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<PAGE>
AVAILABLE INFORMATION
Avista Corp. files annual, quarterly and special reports, proxy statements
and other information with the SEC. You may read and copy this information at
the SEC's Public Reference Room and at its Regional Offices:
Public Reference Room New York Regional Office Chicago Regional Office
Judiciary Plaza 7 World Trade Center Citicorp Center
450 Fifth Street, N.W. Suite 1300 500 West Madison Street
Room 1024 New York, New York 10048 Suite 1400
Washington, D.C. 20549 Chicago, Illinois 60661-2551
You may obtain information on the operation of the SEC's public reference
rooms by calling the SEC at 1-800-SEC-0330. You may also obtain copies of such
material by mail from the Public Reference Section of the SEC, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. The SEC also
maintains an Internet site that contains Avista Corp.'s reports, proxy
statements and other information filed with the SEC. The address of that site is
http://www.sec.gov.
Avista Corp.'s Common Stock is listed on the New York and Pacific Stock
Exchanges, and reports, proxy statements and other information concerning Avista
Corp. can also be inspected at the offices of those exchanges located at the New
York Stock Exchange, 20 Broad Street, New York, New York 10005, and the Pacific
Stock Exchange, 301 Pine Street, San Francisco, California 94104, respectively.
Avista Corp. is incorporating into this prospectus by reference:
o Avista Corp.'s most recent Annual Report on Form 10-K filed
with the SEC pursuant to the Exchange Act and
o all other documents filed by Avista Corp. with the SEC
pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the filing of Avista Corp.'s most
recent Annual Report and prior to the termination of the
offering made by this prospectus,
and all of those documents are deemed to be a part of this prospectus from the
date of filing those documents. We refer to the documents incorporated into this
prospectus by reference as the "Incorporated Documents". Any statement contained
in an Incorporated Document may be modified or superseded by a statement in this
prospectus or in any prospectus supplement or in any subsequently filed
Incorporated Document. The Incorporated Documents as of the date of this
prospectus are:
o Annual Report on Form 10-K for the year ended December 31,
1998;
o Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999; and
o Current Report on Form 8-K dated June 15, 1999.
Avista Corp. maintains an Internet site at http://www.avistacorp.com which
contains information concerning Avista Corp. and its affiliates. The information
contained at Avista Corp.'s Internet site is not incorporated in this prospectus
by reference and you should not consider it a part of this prospectus.
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AVISTA CORPORATION
Avista Corp., formerly known as The Washington Water Power Company, was
incorporated in the State of Washington in 1889, and is a diversified energy
services company. Avista Corp.'s subsidiaries include Avista Energy, Avista
Advantage, Avista Labs and Pentzer Corporation. At December 31, 1998, Avista
Corp.'s employees included 1,536 people in its utility operations and
approximately 2,153 people in its majority-owned non-regulated businesses
(energy and non-energy). Avista Corp.'s corporate headquarters are located at
1411 East Mission Avenue, Spokane, Washington 99220, which serves as the Inland
Northwest's center for manufacturing, transportation, health care, education,
communication, agricultural and service businesses.
The Company's operations are organized into four lines of business, two of
which comprise its utility operations. The Energy Delivery business provides
electricity and natural gas in a 26,000 square-mile area in eastern Washington
and northern Idaho, with a combined population of approximately 825,000, as of
December 31, 1998, as well as natural gas services in a 4,000 square-mile area
in northeast and southwest Oregon and South Lake Tahoe region of California,
with a combined population of approximately 459,000, as of such date. The
Generation and Resources business includes the generation and production of
electric energy, and short- and long-term electric and natural gas wholesale
sales and wholesale marketing primarily to, and commodity trading with, other
utilities and power brokers in the Western System Coordinating Council. The
National Energy Trading and Marketing business, which is conducted through
subsidiaries, focuses on commodity trading, energy marketing and energy related
products and services on a national basis. The non-energy business primarily
consists of Pentzer, a private investment firm.
Regulatory, economic and technological changes have brought about the
accelerating transformation of the electric utility industry from a vertically
integrated monopoly to separate market driven businesses. Changes underway in
the utility and energy industries are creating new opportunities to expand
Avista Corp.'s businesses and serve new markets. In pursuing such opportunities,
Avista Corp. is shifting its strategic direction to growth in order to achieve
its goal of becoming a diversified North American energy company.
USE OF PROCEEDS
Avista Corp. intends to use the net proceeds from the issuance and sale of
the debt securities offered by this prospectus (the "Debt Securities") for any
or all of the following purposes: (a) to fund a portion of Avista Corp.'s
construction, facility improvement and maintenance programs, (b) to retire or
exchange one or more outstanding series of its preferred stock, bonds or
long-term notes, (c) to reduce or eliminate short-term debt issued for any of
these purposes, (d) to reimburse Avista Corp.'s treasury for funds previously
expended for these purposes and (e) for other corporate purposes. Avista Corp.
also has an existing shelf registration statement on file with the SEC for the
issuance and sale of Medium-Term Notes, Series C. As of June 30, 1999, Avista
Corp. had $166,000,000 of Medium-Term Notes, Series C available for issuance and
sale, the net proceeds from which may be used for purposes similar to those
enumerated above. The prospectus supplement relating to each series or tranche
of the Debt Securities will indicate the expected use of the proceeds of that
series or tranche.
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DESCRIPTION OF THE DEBT SECURITIES
GENERAL
Avista Corp. may issue the Debt Securities in one or more series, or in one
or more tranches within a series, under an Indenture, dated as of April 1, 1998
(the "Original Indenture"), between Avista Corp. and The Chase Manhattan Bank,
as trustee (the "Trustee"), the Original Indenture, as amended and supplemented
from time to time, being hereinafter referred to as the Indenture. The terms of
the Debt Securities will include those stated in the Indenture and those made
part of the Indenture by the Trust Indenture Act. The following summary is not
complete and is subject in all respects to the provisions of, and is qualified
in its entirety by reference to, the Indenture and the Trust Indenture Act.
Avista Corp. has filed the Indenture, as well as a form of officer's certificate
to establish a series of debt securities, as an exhibit to the registration
statement of which this prospectus is a part. Capitalized terms used under this
heading which are not otherwise defined in this prospectus have the meanings set
forth in the Indenture. Wherever particular provisions of the Indenture or terms
defined in the Indenture are referred to, those provisions or defined terms are
incorporated by reference as part of the statements made in this prospectus and
the statements are qualified in their entirety by that reference. References to
article and section numbers, unless otherwise indicated, are references to
article and section numbers in the Indenture.
In addition to the Debt Securities, other debt securities may be issued
under the Indenture, without any limit on the aggregate principal amount. The
Debt Securities and all other debt securities issued under the Indenture are
collectively referred to as the "Indenture Securities." Each series of Indenture
Securities will be unsecured and will rank pari passu with all other series of
Indenture Securities, except as otherwise provided in the Indenture, and with
all other unsecured and unsubordinated indebtedness of Avista Corp. Except as
otherwise described in the applicable prospectus supplement, the Indenture does
not limit the incurrence or issuance by Avista Corp. of other secured or
unsecured debt, whether under the Indenture, any other indenture that Avista
Corp. may enter into in the future, or otherwise. See the prospectus supplement
relating to any offering of Debt Securities.
The applicable prospectus supplements will describe the following terms of
the Debt Securities of each series or tranche:
(a) the title of the Debt Securities;
(b) any limit upon the aggregate principal amount of the Debt
Securities;
(c) the date or dates on which the principal of the Debt Securities is
payable or the method of determination thereof and the right, if any, to extend
such date or dates;
(d) the rate or rates at which the Debt Securities will bear interest,
if any, or the method by which such rate or rates, if any, will be determined,
the date or dates from which any such interest will accrue, the interest payment
dates on which any such interest will be payable, the right, if any, of Avista
Corp. to defer or extend an interest payment date, and the regular record date
for any interest payable on any interest payment date and the person or persons
to whom interest on such Debt Securities will be payable on any interest payment
date, if other than the person or persons in whose names such Debt Securities
are registered at the close of business on the regular record date for such
interest;
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(e) the place or places where, subject to the terms of the Indenture as
described below under "Payment and Paying Agents", the principal of and premium,
if any, and interest, if any, on the Debt Securities will be payable and where,
subject to the terms of the Indenture as described below under "Registration and
Transfer", the Debt Securities may be presented for registration of transfer or
exchange and the place or places where notices and demands to or upon Avista
Corp. in respect of the Debt Securities and the Indenture may be served; the
Security Registrar and Paying Agents for the Debt Securities; and, if such is
the case, that the principal of the Debt Securities will be payable without
presentation or surrender;
(f) any period or periods within which, or date or dates on which, the
price or prices at which and the terms and conditions upon which the Debt
Securities may be redeemed, in whole or in part, at the option of Avista Corp.;
(g) the obligation or obligations, if any, of Avista Corp. to redeem or
purchase any of the Debt Securities pursuant to any sinking fund or other
mandatory redemption provisions or at the option of the Holder, any period or
periods within which, or date or dates on which, the price or prices at which
and the terms and conditions upon which the Debt Securities will be redeemed or
purchased, in whole or in part, pursuant to such obligation, and applicable
exceptions to the requirements of a notice of redemption in the case of
mandatory redemption or redemption at the option of the Holder;
(h) the denominations in which any of the Debt Securities will be
issuable if other than denominations of $1,000 and any integral multiple of
$1,000;
(i) if the Debt Securities are to be issued in global form, the
identity of the depositary; and
(j) any other terms of the Debt Securities.
PAYMENT AND PAYING AGENTS
Except as may be provided in the applicable prospectus supplement, Avista
Corp. will pay interest, if any, on each Debt Security on each interest payment
date to the person in whose name such Debt Security is registered (the
registered holder of any Indenture Security being called a "Holder") as of the
close of business on the regular record date relating to such interest payment
date; provided, however, that Avista Corp. will pay interest at maturity
(whether at stated maturity, upon redemption or otherwise, "Maturity") to the
person to whom principal is paid. However, if there has been a default in the
payment of interest on any Debt Security, such defaulted interest may be payable
to the Holder of such Debt Security as of the close of business on a date
selected by the Trustee which is not more than 30 days and not less than 10 days
before the date proposed by Avista Corp. for payment of such defaulted interest
or in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Debt Security may be listed, if the Trustee
deems such manner of payment practicable. (See Section 307.)
Unless otherwise specified in the applicable prospectus supplement, Avista
Corp. will pay the principal of and premium, if any, and interest, if any, on
the Debt Securities at Maturity upon presentation of the Debt Securities at the
corporate trust office of The Chase Manhattan Bank in New York, New York, as
Paying Agent for Avista Corp. Avista Corp. may change the place of payment of
the Debt Securities, may appoint one or more additional Paying Agents (including
Avista Corp.) and may remove any paying agent, all at its discretion. (See
Section 502.)
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REGISTRATION AND TRANSFER
Unless otherwise specified in the applicable prospectus supplement, Holders
may register the transfer of Debt Securities, and may exchange Debt Securities
of the same series and tranche, of authorized denominations and having the same
terms and aggregate principal amount, at the corporate trust office of The Chase
Manhattan Bank in New York, New York, as security registrar for the Debt
Securities. Avista Corp. may change the place for registration of transfer and
exchange of the Debt Securities, may appoint one or more additional security
registrars (including Avista Corp.) and may remove any security registrar, all
at its discretion. Except as otherwise provided in the applicable prospectus
supplement, no service charge will be made for any transfer or exchange of the
Debt Securities, but Avista Corp. may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of the Debt Securities. Avista
Corp. will not be required to execute or to provide for the registration of
transfer of or the exchange of (a) any Debt Security during a period of 15 days
before giving any notice of redemption or (b) any Debt Security selected for
redemption in whole or in part, except the unredeemed portion of any Debt
Security being redeemed in part. (See Section 305.)
REDEMPTION
The applicable prospectus supplement will set forth any terms for the
optional or mandatory redemption of Debt Securities. Except as otherwise
provided in the applicable prospectus supplement with respect to Debt Securities
redeemable at the option of the Holder, Debt Securities will be redeemable only
upon notice by mail not less than 30 nor more than 60 days before the date fixed
for redemption. If less than all the Debt Securities of a series, or any tranche
thereof, are to be redeemed, the particular Debt Securities to be redeemed will
be selected by such method as shall be provided for such series or tranche, or
in the absence of any such provision, by such method of random selection as the
Security Registrar deems fair and appropriate. (See Sections 403 and 404.)
Any notice of redemption at the option of Avista Corp. may state that such
redemption will be conditional upon receipt by the Paying Agent or Agents, on or
before the date fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such Debt Securities
and that if such money has not been received, such notice will be of no force or
effect and Avista Corp. will not be required to redeem such Debt Securities.
(See Section 404.)
SATISFACTION AND DISCHARGE
Any Indenture Securities, or any portion of the principal amount thereof,
will be deemed to have been paid for purposes of the Indenture and, at Avista
Corp.'s election, the entire indebtedness of Avista Corp. in respect thereof
will be deemed to have been satisfied and discharged, if there shall have been
irrevocably deposited with the Trustee or any Paying Agent (other than Avista
Corp.), in trust:
(a) money in an amount which will be sufficient, or
(b) in the case of a deposit made before the maturity of such Indenture
Securities, Eligible Obligations, which do not contain provisions permitting the
redemption or other prepayment thereof at the option of the issuer thereof, the
principal of and the interest on which when due, without any regard to
reinvestment thereof, will provide moneys which, together with the money, if
any, deposited with or held by the Trustee or such Paying Agent, will be
sufficient, or
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(c) a combination of (a) and (b) which will be sufficient,
to pay when due the principal of and premium, if any, and interest, if any, due
and to become due on such Indenture Securities. For this purpose, Eligible
Obligations include direct obligations of, or obligations unconditionally
guaranteed by, the United States entitled to the benefit of the full faith and
credit thereof and certificates, depositary receipts or other instruments which
evidence a direct ownership interest in such obligations or in any specific
interest or principal payments due in respect thereof and such other
obligations or instruments as shall be specified in an accompanying prospectus
supplement. (See Section 601.)
The Indenture will be deemed to have been satisfied and discharged when no
Indenture Securities remain outstanding thereunder and Avista Corp. has paid or
caused to be paid all other sums payable by Avista Corp. under the Indenture.
(See Section 602.)
EVENTS OF DEFAULT
Any one or more of the following events with respect to a series of
Indenture Securities that has occurred and is continuing will constitute an
"Event of Default" with respect to such series of Indenture Securities:
(a) failure to pay interest on any Indenture Security of such series
within 60 days after the same becomes due and payable; provided, however,
that no such failure will constitute an Event of Default if Avista Corp.
has made a valid extension of the interest payment period with respect to
the Indenture Securities of such series if so provided with respect to such
series; or
(b) failure to pay the principal of or premium, if any, on any
Indenture Security of such series within 3 business days after its
Maturity; provided, however, that no such failure will constitute an Event
of Default if Avista Corp. has made a valid extension of the Maturity of
the Indenture Securities of such series, if so provided with respect to
such series; or
(c) failure to perform, or breach of, any covenant or warranty of
Avista Corp. contained in the Indenture for 90 days after written notice to
Avista Corp. from the Trustee or to Avista Corp. and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Indenture
Securities of such series as provided in the Indenture unless the Trustee,
or the Trustee and the Holders of a principal amount of Securities of such
series not less than the principal amount of Indenture Securities the
Holders of which gave such notice, as the case may be, agree in writing to
an extension of such period before its expiration; provided, however, that
the Trustee, or the Trustee and the Holders of such principal amount of
Indenture Securities of such series, as the case may be, will be deemed to
have agreed to an extension of such period if corrective action is
initiated by Avista Corp. within such period and is being diligently
pursued; or
(d) default under any bond, debenture, note or other evidence of
indebtedness of Avista Corp. for borrowed money (including Indenture
Securities of other series) or under any mortgage, indenture, or other
instrument to evidence any indebtedness of Avista Corp. for borrowed money,
which default (1) constitutes a failure to make any payment in excess of
$5,000,000 of the principal of, or interest on, such indebtedness or (2)
has resulted in such indebtedness in an amount in excess of $10,000,000
becoming or being declared due and payable prior to the date it would
otherwise have become due and payable, without such payment having been
made, such indebtedness having been discharged, or such
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acceleration having been rescinded or annulled, within a period of 90 days
after written notice to Avista Corp. by the Trustee or to Avista Corp. and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of such series as provided in the Indenture; or
(e) certain events in bankruptcy, insolvency or reorganization of
Avista Corp. (See Section 701.)
(See Section 701.)
REMEDIES
Acceleration of Maturity
If an Event of Default applicable to the Indenture Securities of any series
occurs and is continuing, then either the Trustee or the Holders of not less
than 33% in aggregate principal amount of the Outstanding Indenture Securities
of such series may declare the principal amount (or, if any of the Indenture
Securities of such series are Discount Securities, such portion of the principal
amount thereof as may be specified in the terms thereof) of all of the
Outstanding Indenture Securities of such series to be due and payable
immediately by written notice to Avista Corp. (and to the Trustee if given by
Holders); provided, however, that if an Event of Default occurs and is
continuing with respect to more than one series of Indenture Securities, the
Trustee or the Holders of not less than 33% in aggregate principal amount of the
Outstanding Indenture Securities of all such series, considered as one class,
may make such declaration of acceleration and not the Holders of the Indenture
Securities of any one such series.
At any time after such a declaration of acceleration with respect to the
Indenture Securities of any series has been made, but before a judgment or
decree for payment of the money due has been obtained, such declaration and its
consequences will, without further act, be deemed to have been rescinded and
annulled, if
(a) Avista Corp. has paid or deposited with the Trustee a sum
sufficient to pay
(1) all overdue interest, if any, on all Indenture Securities of
such series;
(2) the principal of and premium, if any, on any Indenture
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest, if any, thereon at the rate
or rates prescribed therefor in such Indenture Securities;
(3) interest, if any, upon overdue interest, if any, at the rate
or rates prescribed therefor in such Indenture Securities, to the
extent that payment of such interest is lawful; and
(4) all amounts due to the Trustee under the Indenture in respect
of compensation and reimbursement of expenses; and
(b) all Events of Default with respect to Indenture Securities of such
series, other than the non-payment of the principal of the Indenture Securities
of such series which has become due solely by such declaration of acceleration,
have been cured or waived as provided in the Indenture. (See Section 702.)
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Right to Direct Proceedings
If an Event of Default with respect to the Indenture Securities of any
series occurs and is continuing, the Holders of a majority in principal amount
of the Outstanding Indenture Securities of such series will have the right to
direct the time, method and place of conducting any proceedings for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee; provided, however, that if an Event of Default occurs and is continuing
with respect to more than one series of Indenture Securities, the Holders of a
majority in aggregate principal amount of the Outstanding Indenture Securities
of all such series, considered as one class, will have the right to make such
direction, and not the Holders of the Indenture Securities of any one of such
series; and provided, further, that (a) such direction does not conflict with
any rule of law or with the Indenture, and could not involve the Trustee in
personal liability in circumstances where indemnity would not, in the Trustee's
sole discretion, be adequate and (b) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction. (See
Section 712.)
Limitation on Right to Institute Proceedings
No Holder of any Indenture Security will have any right to institute
any proceeding, judicial or otherwise, with respect to the Indenture or for
the appointment of a receiver or for any other remedy thereunder unless:
(a) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the Indenture
Securities of any one or more series;
(b) the Holders of a majority in aggregate principal amount of
the outstanding Indenture Securities of all series in respect of which
such Event of Default has occurred, considered as one class, have made
written request to the Trustee to institute proceedings in respect of
such Event of Default and have offered the Trustee reasonable indemnity
against costs and liabilities to be incurred in complying with such
request; and
(c) for 60 days after receipt of such notice, the Trustee has
failed to institute any such proceeding and no direction inconsistent
with such request has been given to the Trustee during such 60 day
period by the Holders of a majority in aggregate principal amount of
Indenture Securities then outstanding.
Furthermore, no Holder of Indenture Securities of any series will be
entitled to institute any such action if and to the extent that such action
would disturb or prejudice the rights of other Holders of Indenture
Securities of such series. (See Section 707.)
No Impairment of Right to Receive Payment
Notwithstanding that the right of a Holder to institute a proceeding with
respect to the Indenture is subject to certain conditions precedent, each Holder
of an Indenture Security will have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if any, and
interest, if any, on such Indenture Security when due and to institute suit for
the enforcement of any such payment, and such rights may not be impaired or
affected without the consent of such Holder. (See Section 708.)
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Notice of Default
The Trustee is required to give the Holders notice of any default under the
Indenture to the extent required by the Trust Indenture Act, unless such default
shall have been cured or waived, except that no such notice to Holders of a
default of the character described in clause (c) under "- Events of Default" may
be given until at least 75 days after the occurrence thereof. For purposes of
the preceding sentence, the term "default" means any event which is, or after
notice or lapse of time, or both, would become, an Event of Default. The Trust
Indenture Act currently permits the Trustee to withhold notices of default
(except for certain payment defaults) if the Trustee in good faith determines
the withholding of such notice to be in the interests of the Holders. (See
Section 802.)
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
Avista Corp. may not consolidate with or merge into any other Person, or
convey or otherwise transfer, or lease, all of its properties, as or
substantially as an entirety, to any Person, unless:
(a) the Person formed by such consolidation or into which Avista
Corp. is merged or the Person which acquires by conveyance or other
transfer, or which leases (for a term extending beyond the last Stated
Maturity of the Indenture Securities then Outstanding), all of the
properties of Avista Corp., as or substantially as an entirety, shall be a
Person organized and existing under the laws of the United States, any
State or Territory thereof or the District of Columbia or under the laws of
Canada or any Province thereof; and
(b) such Person shall expressly assume the due and punctual
payment of the principal of and premium, if any, and interest, if any, on
all the Indenture Securities then Outstanding and the performance and
observance of every covenant and condition of the Indenture to be performed
or observed by Avista Corp.
In the case of the conveyance or other transfer of all of the properties of
Avista Corp., as or substantially as an entirety, to any person as contemplated
above, Avista Corp. would be released and discharged from all obligations under
the Indenture and on all Indenture Securities then outstanding unless Avista
Corp. elects to waive such release and discharge. Upon any such consolidation or
merger or any such conveyance or other transfer of properties of Avista Corp.,
the successor, transferee or lessee would succeed to, and be substituted for,
and would be entitled to exercise every power and right of, Avista Corp. under
the Indenture. (See Sections 1001, 1002 and 1003.)
For purposes of the Indenture, the conveyance, transfer or lease by Avista
Corp. of all of its facilities:
(a) for the generation of electric energy,
(b) for the transmission of electric energy,
(c) for the distribution of electric energy and/or natural gas, in
each case considered alone,
(d) all of its facilities described in clauses (a) and (b),
considered together, or
(e) all of its facilities described in clauses (b) and (c),
considered together,
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will in no event be deemed to constitute a conveyance or other transfer of all
the properties of Avista Corp., as or substantially as an entirety, unless,
immediately following such conveyance, transfer or lease, Avista Corp. owns no
unleased properties in the other such categories of property not so conveyed or
otherwise transferred or leased.
The Indenture will not prevent or restrict:
(a) any consolidation or merger after the consummation of which Avista
Corp. would be the surviving or resulting entity, or
(b) any conveyance or other transfer, or lease, of any part of the
properties of Avista Corp. which does not constitute the entirety, or
substantially the entirety, thereof. (See Section 1004.)
If Avista Corp. conveys or otherwise transfers any part of its properties
which does not constitute the entirety, or substantially the entirety, thereof
to another Person meeting the requirements set forth in the first paragraph
under this heading, and if:
(a) such transferee expressly assumes the due and punctual payment
of the principal of and premium, if any, and interest, if any, on all
Indenture Securities then outstanding and the performance and observance of
every covenant and condition of the Indenture to be performed or observed
by Avista Corp.; and
(b) there is delivered to the Trustee an independent expert's
certificate (i) describing the property so conveyed or transferred and
identifying the same as facilities for the generation, transmission or
distribution of electric energy or for the storage, transportation or
distribution of natural gas and (ii) stating that the aggregate principal
amount of the Indenture Securities then outstanding does not exceed 70% of
the fair value of such property,
then Avista Corp. would be released and discharged from all obligations and
covenants under the Indenture and on all Indenture Securities then
outstanding unless Avista Corp. elects to waive such release and discharge.
In such event, the transferee would succeed to, and be substituted for, and
would be entitled to exercise every right and power of, Avista Corp. under
the Indenture. (See Section 1005.)
MODIFICATION OF INDENTURE
Modifications Without Consent
Avista Corp. and the Trustee may enter into one or more supplemental
indentures, without the consent of any Holders of Indenture Securities, for any
of the following purposes:
(a) to evidence the succession of another Person to Avista Corp.
and the assumption by any such successor of the covenants of Avista
Corp. in the Indenture and in the Indenture Securities; or
(b) to add one or more covenants of Avista Corp. or other
provisions for the benefit of all Holders of Indenture Securities or
for the benefit of the Holders of, or to remain in effect only so long
as there shall be Outstanding, Indenture Securities of one or more
specified series, or one or
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<PAGE>
more Tranches thereof, or to surrender any right or power conferred
upon Avista Corp. by the Indenture; or
(c) to change or eliminate any provision of the Indenture or to
add any new provision to the Indenture, provided that if such change,
elimination or addition adversely affects the interests of the Holders
of the Indenture Securities of any series or Tranche in any material
respect, such change, elimination or addition will become effective
with respect to such series or Tranche only when no Indenture Security
of such series or Tranche remains Outstanding; or
(d) to provide collateral security for the Indenture Securities
or any series thereof; or
(e) to establish the form or terms of the Indenture Securities of
any series or Tranche as permitted by the Indenture; or
(f) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if
any, thereon and for the procedures for the registration, exchange and
replacement thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the Holders thereof, and for
any and all other matters incidental thereto; or
(g) to evidence and provide for the acceptance of appointment by
a successor trustee with respect to the Indenture Securities of one or
more series; or
(h) to provide for the procedures required to permit the
utilization of a non-certificated system of registration for all, or
any series or Tranche of, the Indenture Securities; or
(i) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of
Indenture Securities, or any Tranche thereof, will be payable, (2) all
or any series of Indenture Securities, or any Tranche thereof, may be
surrendered for registration of transfer, (3) all or any series of
Indenture Securities, or any Tranche thereof, may be surrendered for
exchange and (4) notices and demands to or upon Avista Corp. in
respect of all or any series of Indenture Securities, or any Tranche
thereof, and the Indenture may be served; or
(j) to cure any ambiguity, to correct or supplement any provision
therein which may be defective or inconsistent with any other
provision therein, or to make any other changes to the provisions
thereof or to add other provisions with respect to matters and
questions arising under the Indenture, so long as such other changes
or additions do not adversely affect the interests of the Holders of
Indenture Securities of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust Indenture
Act is amended after the date of the Original Indenture in such a way as to
require changes to the Indenture or the incorporation therein of additional
provisions or so as to permit changes to, or the elimination of, provisions
which, at the date of the Original Indenture or at any time thereafter, were
required by the Trust Indenture Act to be contained in the Indenture, the
Indenture will be deemed to have been amended so as to conform to such amendment
or to effect such changes or elimination, and Avista Corp. and the Trustee may,
without the consent of any Holders of Indenture Securities, enter into one or
more supplemental indentures to evidence or effect such amendment. (See Section
1101.)
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Modifications Requiring Consent
Except as provided above, the consent of the Holders of a majority in
aggregate principal amount of the Indenture Securities of all series then
Outstanding, considered as one class is required for the purpose of adding any
provisions to, or changing in any manner, or eliminating any of the provisions
of, the Indenture pursuant to one or more supplemental indentures; provided,
however, that if less than all of the series of Indenture Securities Outstanding
are directly affected by a proposed supplemental indenture, then the consent
only of the Holders of a majority in aggregate principal amount of Outstanding
Indenture Securities of all series so directly affected, considered as one
class, will be required; provided, further, that if the Indenture Securities of
any series have been issued in more than one Tranche and if the proposed
supplemental indenture directly affects the rights of the Holders of one or
more, but less than all, of such Tranches, then the consent only of the Holders
of a majority in aggregate principal amount of the Outstanding Indenture
Securities of all Tranches so directly affected, considered as one class, will
be required; and provided, further, that no such supplemental indenture may:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Indenture Security other
than pursuant to the terms thereof, or reduce the principal amount thereof
or the rate of interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating such rate or reduce
any premium payable upon the redemption thereof, or reduce the amount of
the principal of any Discount Security that would be due and payable upon a
declaration of acceleration of Maturity or change the coin or currency (or
other property) in which any Indenture Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity of any
Indenture Security (or, in the case of redemption, on or after the
redemption date) without, in any such case, the consent of the Holder of
such Indenture Security;
(b) reduce the percentage in principal amount of the Outstanding
Indenture Securities of any series, or any Tranche thereof, the consent of
the Holders of which is required for any such supplemental indenture, or
the consent of the Holders of which is required for any waiver of
compliance with any provision of the Indenture or of any default thereunder
and its consequences, or reduce the requirements for quorum or voting,
without, in any such case, the consent of the Holder of each Outstanding
Indenture Security of such series or Tranche; or
(c) modify certain provisions of the Indenture relating to
supplemental indentures, waivers of certain covenants and waivers of past
defaults with respect to the Indenture Securities of any series, or any
Tranche thereof, without the consent of the Holder of each Outstanding
Indenture Security of such series or Tranche.
A supplemental indenture which changes or eliminates any covenant or other
provision of the Indenture which has expressly been included solely for the
benefit of the Holders of, or which is to remain in effect only so long as there
shall be Outstanding, Indenture Securities of one or more specified series, or
one or more Tranches thereof, or modifies the rights of the Holders of Indenture
Securities of such series or Tranches with respect to such covenant or other
provision, will be deemed not to affect the rights under the Indenture of the
Holders of the Indenture Securities of any other series or Tranche.
If the supplemental indenture or other document establishing any series or
Tranche of Indenture Securities so provides, and as specified in the applicable
prospectus supplement and/or pricing supplement, the Holders of such Indenture
Securities will be deemed to have consented, by virtue of their purchase of
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<PAGE>
such Indenture Securities, to a supplemental indenture containing the additions,
changes or eliminations to or from the Indenture which are specified in such
supplemental indenture or other document, no Act of such Holders will be
required to evidence such consent and such consent may be counted in the
determination of whether the Holders of the requisite principal amount of
Indenture Securities have consented to such supplemental indenture. (See Section
1102.)
DUTIES OF THE TRUSTEE; RESIGNATION; REMOVAL
The Trustee will have, and will be subject to, all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the Trustee will be under no
obligation to exercise any of the powers vested in it by the Indenture at the
request of any Holder of Indenture Securities, unless such Holder offers it
reasonable indemnity against the costs, expenses and liabilities which might be
incurred thereby. The Trustee will not be required to expend or risk its own
funds or otherwise incur personal financial liability in the performance of its
duties if the Trustee reasonably believes that repayment or adequate indemnity
is not reasonably assured to it. (See Sections 801 and 803.)
The Trustee may resign at any time with respect to the Indenture Securities
of one or more series by giving written notice thereof to Avista Corp. or may be
removed at any time with respect to the Indenture Securities of one or more
series by Act of the Holders of a majority in principal amount of the
Outstanding Indenture Securities of such series delivered to the Trustee and
Avista Corp. No resignation or removal of the Trustee and no appointment of a
successor trustee will become effective until the acceptance of appointment by a
successor trustee in accordance with the requirements of the Indenture. So long
as no Event of Default or event which, after notice or lapse of time, or both,
would become an Event of Default has occurred and is continuing, if Avista Corp.
has delivered to the Trustee with respect to one or more series a resolution of
its Board of Directors appointing a successor trustee with respect to that or
those series and such successor has accepted such appointment in accordance with
the terms of the Indenture, the Trustee with respect to that or those series
will be deemed to have resigned and the successor will be deemed to have been
appointed as trustee in accordance with the Indenture. (See Section 810.)
EVIDENCE OF COMPLIANCE
Compliance with the Indenture provisions is evidenced by written statements
of Avista Corp. officers or persons selected or paid by Avista Corp. In certain
cases, Avista Corp. must furnish opinions of counsel and certifications of an
engineer, appraiser or other expert (who in some cases must be independent). In
addition, the Indenture requires that Avista Corp. give the Trustee, not less
than annually, a brief statement as to Avista Corp.'s compliance with the
conditions and covenants under the Indenture.
GOVERNING LAW
The Indenture and the Indenture Securities will be governed by and
construed in accordance with the laws of the State of New York, except to the
extent that the Trust Indenture of 1939, as amended, shall be applicable.
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PLAN OF DISTRIBUTION
Avista Corp. may sell the Debt Securities in any of four ways: (a) directly
to a limited number of institutional purchasers or to a single purchaser, (b)
through agents, (c) through underwriters or (d) through dealers. The applicable
prospectus supplement relating to each series of Debt Securities will set forth
the terms of the offering of such Debt Securities, including the name or names
of any such agents, underwriters or dealers, the purchase price of such Debt
Securities and the net proceeds to Avista Corp. from such sale, any underwriting
discounts and other items constituting underwriters' compensation, the initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
If Avista Corp. uses underwriters to sell Debt Securities, the underwriters
will acquire such Debt Securities for their own account and may resell them in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. Unless
otherwise set forth in the prospectus supplement relating to a series of Debt
Securities, the obligations of any underwriter or underwriters to purchase such
Debt Securities will be subject to certain conditions precedent, and such
underwriter or underwriters will be obligated to purchase all of such Debt
Securities if any are purchased, except that, in certain cases involving a
default by one or more underwriters, less than all of such Debt Securities may
be purchased.
If an agent of Avista Corp. is used in any sale of a series of Debt
Securities, any commissions payable by Avista Corp. to such agent will be set
forth in the applicable prospectus supplement relating to such Debt Securities.
Unless otherwise indicated in the applicable prospectus supplement, any such
agent will be acting on a best efforts basis for the period of its appointment.
Any underwriters, dealers or agents participating in the distribution of
the Debt Securities may be deemed to be underwriters, and any discounts or
commissions received by them on the sale or resale of Debt Securities may be
deemed to be underwriting discounts and commissions, under the Securities Act.
Agents, underwriters and dealers may be entitled under agreements entered into
with Avista Corp. to indemnification by Avista Corp. against certain
liabilities, including liabilities under the Securities Act.
Unless otherwise provided in the applicable prospectus supplement relating
to a series of Debt Securities, Avista Corp. does not intend to apply for the
listing of the Notes on a national securities exchange, but has been advised by
the agents that they intend to make a market in the Notes, as permitted by
applicable laws and regulations. The agents are not obligated to do so, however,
and the agents may discontinue making a market at any time without notice. No
assurance can be given as to the liquidity of any trading market for the Notes.
The agents and/or certain of their affiliates may engage in transactions
with and perform services for Avista Corp. and certain of its affiliates in the
ordinary course of business.
LEGAL MATTERS
The validity of the Debt Securities and certain other matters of New York
law and matters of federal securities law will be passed upon for Avista Corp.
by Thelen Reid & Priest LLP, New York, New York, counsel to Avista Corp. The
authorization of the Debt Securities by the Company and certain other matters
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<PAGE>
of Washington law, as well as the authorization of the Debt Securities by the
public utility regulatory commissions under Washington, Idaho, Montana, Oregon
and California law, will be passed upon for Avista Corp. by Paine, Hamblen,
Coffin, Brooke & Miller LLP, Spokane, Washington, counsel for Avista Corp. The
validity of the Debt Securities will be passed upon for any underwriters or
agents by Sullivan & Cromwell, New York, New York. In giving their opinions
Thelen Reid & Priest LLP and Sullivan & Cromwell may assume the conclusions of
Washington, California, Idaho, Montana and Oregon law set forth in the opinion
of Paine, Hamblen, Coffin, Brooke & Miller LLP.
EXPERTS
The financial statements and the related financial statement schedules
incorporated in this Prospectus by reference from Avista Corp.'s most recent
Annual Report on Form 10-K have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
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PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION (ESTIMATED).
Filing fee-- Securities and Exchange SEC................. $ 111,200.00
Fees of state regulatory authorities..................... 7,200.00
Legal counsel fees....................................... 200,000.00
Trustee's fees........................................... 20,000.00
Auditors' fees........................................... 30,000.00
Fees of rating agencies.................................. 160,000.00
Blue Sky counsel and filing fees......................... 10,000.00
Printing, including Form S-3, prospectus, exhibits, etc.. 10,000.00
Miscellaneous expenses................................... 1,600.00
========
Total Estimated Expenses.............................. $550,000.00
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Seventh of the Registrant's Restated Articles of Incorporation
("Articles") provides, in part, as follows:
"The Corporation shall, to the full extent permitted by applicable law, as
from time to time in effect, indemnify any person made a party to, or otherwise
involved in, any proceeding by reason of the fact that he or she is or was a
director of the Corporation against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by him or her in connection with any such
proceeding. The Corporation shall pay any reasonable expenses incurred by a
director in connection with any such proceeding in advance of the final
determination thereof upon receipt from such director of such undertakings for
repayment as may be required by applicable law and a written affirmation by such
director that he or she has met the standard of conduct necessary for
indemnification, but without any prior determination, which would otherwise be
required by Washington law, that such standard of conduct has been met. The
Corporation may enter into agreements with each director obligating the
Corporation to make such indemnification and advances of expenses as are
contemplated herein. Notwithstanding the foregoing, the Corporation shall not
make any indemnification or advance which is prohibited by applicable law. The
rights to indemnity and advancement of expenses granted herein shall continue as
to any person who has ceased to be a director and shall inure to the benefit of
the heirs, executors and administrators of such a person."
The Registrant has entered into indemnification agreements with each
director as contemplated in Article Seventh of the Articles.
Reference is made to Revised Code of Washington 23B.08.510, which sets forth
the extent to which indemnification is permitted under the laws of the State of
Washington.
Article IX of the Registrant's Bylaws contains an indemnification provision
similar to that contained in the Articles and, in addition, provides in part as
follows:
II-1
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"SECTION 2. LIABILITY INSURANCE. The Corporation shall have the power to
purchase and maintain insurance on behalf of any person who is, or was a
director, officer, employee, or agent of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, other enterprise, or
employee benefit plan against any liability asserted against him and incurred by
him in any such capacity or arising out of his status as such, whether or not
the Corporation would have the power to indemnify him against such liability
under the laws of the State of Washington."
Insurance is maintained on a regular basis (and not specifically in
connection with this offering) against liabilities arising on the part of
directors and officers out of their performance in such capacities or arising on
the part of the Registrant out of its foregoing indemnification provisions,
subject to certain exclusions and to the policy limits.
ITEM 16. EXHIBITS.
Reference is made to the Exhibit Index on p. II-5 hereof.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in this registration
statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
that are incorporated by reference in this registration statement.
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(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof;
(5) That, for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared
effective.
(6) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted against the
Registrant by such director, officer or controlling person in connection with
the securities being registered, such Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
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POWER OF ATTORNEY
The Registrant hereby appoints each Agent for Service named in this
Registration Statement as its attorney-in-fact to sign in their name and behalf,
and to file with the Securities and Exchange Commission any and all amendments,
including post-effective amendments, to this Registration Statement, and each
director and/or officer of the Registrant whose signature appears below hereby
appoints each such Agent for Service as his attorney-in-fact with like authority
to sign in his name and behalf, in any and all capacities stated below, and to
file with the Securities and Exchange Commission, any and all such amendments.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Spokane and State of Washington on the second day of
July, 1999.
AVISTA CORPORATION
By /s/T.M. Matthews
---------------------------------
T.M. Matthews
Chairman of the Board, President
and Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
Signature Title Date
--------- ----- ----
/s/T.M. Matthews Principal Executive July 2, 1999
- ------------------------------ Officer and Director
T.M. Matthews
(Chairman of the Board,
President and Chief Executive
Officer)
/s/J.E. Eliassen Principal Financial July 2, 1999
- ------------------------------ and Accounting Officer
J.E. Eliassen
(Senior Vice President and
Chief Financial Officer)
/s/Sarah M.R. Jewell Director July 2, 1999
- ------------------------------
Sarah M.R. Jewell
/s/Jessie J. Knight, Jr. Director July 2, 1999
- -----------------------------
Jessie J. Knight, Jr.
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/s/Eugene W. Meyer Director July 2, 1999
- -----------------------------
Eugene W. Meyer
/s/Bobby Schmidt Director July 2, 1999
- ------------------------------
Bobby Schmidt
/s/R. John Taylor Director July 2, 1999
- ------------------------------
R. John Taylor
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EXHIBIT 23(A)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Avista Corporation on Form S-3 of our report dated January 29, 1999 (February 1,
1999 as to Note 21 and March 10, 1999 as to Note 20), appearing in the Annual
Report on Form 10-K of Avista Corporation for the year ended December 31, 1998
and to the reference to us under the heading "Experts" in the Prospectus, which
is part of this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Seattle, Washington
July 2, 1999
II-6
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
*1(a) Form of Underwriting Agreement for offering of Debt Securities.
1(b) Form of Distribution Agreement for offering of Medium-Term Notes.
4(a) Indenture dated as of April 1, 1998 between Avista Corp.
Corporation and The Chase Manhattan Bank, as Trustee.
*4(b) Form of Officer's Certificate to be used in connection with an
underwritten public offering of Debt Securities.
4(c) Form of Officer's Certificate to be used in connection with the
issuance of Medium-Term Notes.
5(a) Opinion and Consent of Paine, Hamblen, Coffin, Brooke & Miller
LLP.
5(b) Opinion and Consent of Thelen Reid & Priest LLP.
23(a) Consent of Deloitte & Touche LLP (included on page II-6 hereof).
23(b) Consents of Paine, Hamblen, Coffin, Brooke & Miller LLP and Thelen
Reid & Priest LLP are contained in Exhibits 5(a) and 5(b),
respectively.
24 Power of Attorney (included on page II-4 hereof).
25 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The Chase Manhattan Bank, as Trustee under the
Indenture.
- ------
* To be filed subsequently as an exhibit to an amendment to this Registration
Statement or a Current Report on Form 8-K.
II-7
<PAGE>
Avista Corporation
$400,000,000
Medium-Term Notes, Series D
Distribution Agreement
----------------------
, 1999
--------
[Insert name and address of Agent]
[Insert name and address of Agent]
[Insert name and address of Agent]
Ladies and Gentlemen:
Avista Corporation, a Washington corporation (the
"Company"), proposes to issue and sell from time to time its
Medium-Term Notes, Series D (the "Securities") in an aggregate
principal amount up to $400,000,000 and agrees with each of you
(individually, an "Agent", and collectively, the "Agents") as set
forth in this Agreement.
Subject to the terms and conditions stated herein and
to the reservation by the Company of the right to sell Securities
directly on its own behalf, the Company hereby (i) appoints each
Agent as an agent of the Company for the purpose of soliciting
and receiving offers to purchase Securities from the Company
pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell
Securities directly to any Agent as principal, it will enter into
a separate agreement, substantially in the form of Annex I hereto
(each a "Terms Agreement"), relating to such sale in accordance
with Section 2(b) hereof.
The Securities will be issued as a series under the
Company's Indenture, dated as of April 1, 1998, to The Chase
Manhattan Bank, as trustee (the "Trustee") as it will be
supplemented by an Officer's Certificate dated , 1999
(said Indenture, as so supplemented and as it may be amended and
further supplemented being hereinafter referred to as the
"Indenture"). The Securities shall have the maturity ranges,
interest rates, if any, redemption provisions and other terms set
forth in the Prospectus referred to below as it may be amended or
supplemented from time to time. The Securities will be issued,
and the terms and rights thereof established, from time to time
by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees
with, each Agent that:
(a) The Company has carefully prepared in
conformity with the requirements of the Securities Act of
1933, as amended (the "Act"), and the applicable rules and
regulations of the Securities and Exchange Commission (the
"Commission") (i) a registration statement on Form S-3 (File
No. 333- ) (the "Registration Statement") for the
-----
registration of $400,000,000 in aggregate principal amount
of its Debt Securities. The Registration Statement has
become effective and no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been initiated or
threatened by the Commission. No Debt Securities registered
under the Registration Statement have been issued. A
prospectus supplement setting forth the terms of the
Securities and of their sale and distribution (the
"Prospectus Supplement") has been or will be so prepared and
will be filed pursuant to Rule 424 under the Act. The
Registration Statement (including exhibits, but excluding
the Statement of Eligibility on Form T-1) in the form in
which it became effective, and as amended to the date
hereof, is herein referred to as the "Registration
Statement"; the prospectus included as a part of the
Registration Statement, as such prospectus may have been
amended to the date hereof, is hereinafter referred to as
the "Basic Prospectus"; and the Basic Prospectus, as
supplemented by the Prospectus Supplement, is herein
referred to as the "Prospectus"; provided, however, that (i)
any reference herein to the terms "Registration Statement",
"Basic Prospectus" or "Prospectus" shall be deemed to refer
to and include the documents incorporated therein by
reference pursuant to Item 12 of Form S-3 under the Act,
(ii) any reference to any amendment or supplement to the
Prospectus shall be deemed to refer to and include any
documents filed after the date of the Prospectus pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and so
incorporated by reference, (iii) any reference to the
Prospectus as amended or supplemented shall be deemed to
refer to and include the Prospectus as amended or
supplemented (including by any supplement to the Prospectus
that sets forth only the terms of a particular tranche of
the Securities (a "Pricing Supplement") filed in accordance
with Section 4(a) hereof) in relation to the Securities sold
pursuant to this Agreement, in the form filed with the
Commission pursuant to Rule 424(b) under the Act and in
accordance with Section 4(a) hereof, including any documents
incorporated by reference therein as of the date of such
filing) and (iv) no prospectus supplement to the Basic
Prospectus which relates to securities of the Company other
than the Securities shall be deemed to be a part of the
Basic Prospectus or the Prospectus;
(b) The Registration Statement when it became
effective complied, and the Prospectus and any amendments or
supplements thereto will comply, in all material respects
with the applicable provisions of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the applicable rules and regulations of the
Commission thereunder and do not and will not, as of the
applicable effective date in the case of the Registration
Statement and any amendment thereto, as of the applicable
filing date in the case of the Prospectus and any supplement
thereto and as of each applicable date referred to in
Section 4(g) hereof, contain an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company
makes no representations or warranties as to information
contained in or omitted from any such document in reliance
upon and in conformity with information furnished in writing
to the Company by any Agent specifically for use in the
preparation thereof;
(c) The documents incorporated by reference in
the Prospectus, when they became effective or were filed
with the Commission, as the case may be, complied in all
material respects with the requirements of the Act or the
Exchange Act, and the applicable rules and regulations of
the Commission thereunder, and none of such documents
included an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; and any further documents so filed and
incorporated by reference in the Prospectus, or any
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may
be, will comply in all material respects with the applicable
requirements of the Act or the Exchange Act, and the
applicable rules and regulations of the Commission
thereunder, and will not contain an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the
Company makes no representations or warranties as to
information contained in or omitted from any such document
in reliance upon and in conformity with information
furnished in writing to the Company by any Agent
specifically for use in the preparation thereof;
(d) Except as set forth in or contemplated by the
Prospectus as amended or supplemented, (i) since the date as
of which information is given in the Prospectus as amended
or supplemented there has not been any material adverse
change in the condition of the Company and its subsidiaries
as a whole, financial or otherwise, (ii) since the date of
the Prospectus as amended or supplemented there has not been
any transaction entered into by the Company or any
subsidiary thereof which is material to the Company and its
subsidiaries as a whole other than transactions in the
ordinary course of business and (iii) neither the Company
nor any of its subsidiaries has any contingent obligation
which is material to the Company and its subsidiaries as a
whole;
(e) The Securities have been duly authorized [(it
being understood that, as of the Commencement Date (as
defined below), no floating rate Security has been
authorized)], and when issued and delivered pursuant to this
Agreement and any Terms Agreement, and duly authenticated by
the Trustee pursuant to the Indenture, will have been duly
executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture
(it being understood that no floating rate Security may be
issued without further authorization by the Board of
Directors of the Company); the Indenture has been duly
authorized and qualified under the Trust Indenture Act and
constitutes a valid and legally binding instrument; the
Indenture is, and the Securities, when authenticated, issued
and delivered as aforesaid, will be, enforceable in
accordance with their respective terms, except to the extent
that enforcement thereof may be limited by any applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws affecting
creditors' rights generally, by general principles of equity
(whether asserted in an action in equity or at law) and by
rules of law governing specific performance, injunctive
relief, foreclosure, receivership and other equitable
remedies; and the Indenture and the Securities of any
particular tranche will conform in all material respects to
the descriptions thereof contained in the Prospectus as
amended or supplemented to relate to the Securities of such
tranche;
(f) The issue and sale of the Securities, the
compliance by the Company with all of the provisions of the
Securities, the Indenture, this Agreement and any Terms
Agreement, and the consummation by the Company of the
transactions herein and therein contemplated will not result
in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets
of the Company is subject, nor will such action result in
any violation of the provisions of any statute or the
Restated Articles of Incorporation, as amended, or the
Bylaws, as amended, of the Company or, to the best of the
Company's knowledge, information or belief, any order, rule
or regulation of any court or any federal or state
regulatory authority or other governmental agency or body
having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the solicitation
of offers to purchase Securities and the issue and sale of
the Securities or the consummation by the Company of the
other transactions contemplated by this Agreement, any Terms
Agreement or the Indenture, except such as have been, or
will have been prior to the Commencement Date (as defined in
Section 3 hereof), obtained under the Act or the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the
solicitation by such Agent of offers to purchase Securities
from the Company and with purchases of Securities by such
Agent as principal, as the case may be, and such consents,
approvals, authorizations, filings or registrations as may
be required by the Washington Utilities and Transportation
Commission, the California Public Utilities Commission, the
Idaho Public Utilities Commission and the Public Utility
Commission of Oregon, in each case in the manner
contemplated hereby;
(g) Except as set forth in or contemplated by the
Prospectus, as amended or supplemented, there are no legal
or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or to which any property
of the Company or any of its subsidiaries is subject, which,
if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of
the Company and its subsidiaries, and, to the best of the
Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others; and
(h) Immediately after any sale of Securities by
the Company hereunder or under any Terms Agreement, the
aggregate amount of Securities which shall have been issued
and sold by the Company hereunder or under any Terms
Agreement that shall have been issued and sold pursuant to
the Registration Statement will not exceed the amount of
Securities registered under the Registration Statement.
2. (a) On the basis of the representations and
warranties, and subject to the terms and conditions herein set
forth, each of the Agents hereby severally and not jointly
agrees, as agent of the Company, to use its reasonable best
efforts to solicit and receive offers to purchase the Securities
from the Company upon the terms and conditions set forth in the
Prospectus as amended or supplemented from time to time.
The Company reserves the right, in its sole discretion,
to instruct the Agents to suspend at any time, for any period of
time or permanently, the solicitation of offers to purchase
Securities; provided that the suspension period shall not
commence until such time as no Agent shall then hold any
Securities purchased from the Company as principal. Upon receipt
of at least one business day's prior notice from the Company, the
Agents will forthwith suspend solicitations of offers to purchase
Securities from the Company until such time as the Company has
advised the Agents that such solicitation may be resumed. While
such solicitation is suspended, the Company shall not be required
to deliver any opinions, letters or certificates in accordance
with Sections 4(i), 4(j), 4(k), 4(l) and 4(m); provided, however,
that if the Registration Statement or the Prospectus is amended
or supplemented during the period of suspension (other than by an
amendment or supplement providing solely for a change in the
interest rates, redemption provisions, amortization schedules or
maturities offered on the Securities or for a change the Agents
deem to be immaterial), no Agent shall be required to resume
soliciting offers to purchase Securities, or shall purchase
Securities from the Company as principal, until the Company has
delivered such opinions, letters and certificates as, but for
such suspension, would have been required by Sections 4(i), 4(j),
4(k), 4(l) and 4(m); and provided, further, that the Company
shall not be so required to deliver more than one opinion, letter
or certificate pursuant to any of Sections 4(i), 4(j), 4(k), 4(l)
and 4(m) and that no such opinion, letter or certificate shall be
required to speak as of any date, or to cover any period ending
on a date, prior to the later of (i) the end of the period
covered by the Company's latest Annual Report on Form 10-K which
has been filed with the Commission, or (ii) the end of the latest
quarterly period with respect to which opinions, letters or
certificates have previously been delivered to the Agents in
accordance with such Sections.
So long as this Agreement shall remain in effect with
respect to any Agent, the Company shall not, without the consent
of such Agent, which consent shall not unreasonably be withheld,
solicit or accept offers to purchase, or sell, any debt
securities with a maturity at the time of original issuance of
nine months to 40 years except pursuant to (i) this Agreement or
any Terms Agreement, (ii) the Distribution Agreement, dated April
24, 1998, among The Washington Water Power Company and the agents
named therein, (iii) a transaction not constituting a public
offering under the Act and (iv) a firm commitment underwriting
pursuant to an underwriting agreement that does not provide for a
continuous offering of debt securities. However, the Company
reserves the right to sell, and may solicit and accept offers to
purchase, Securities directly on its own behalf, and, in the case
of any such sale not resulting from a solicitation made by any
Agent, no commission will be payable with respect to such sale.
These provisions shall not limit Section 4(f) hereof or any
similar provisions included in any Terms Agreement.
Procedural details relating to the issue and delivery
of Securities, the solicitation of offers to purchase Securities
and the payment in each case therefor shall be as set forth in
the Administrative Procedure attached hereto as Annex II as it
may be amended from time to time by written agreement between the
Agents and the Company (the "Administrative Procedure"). The
provisions of the Administrative Procedure shall apply to all
transactions contemplated hereunder other than those made
pursuant to a Terms Agreement. Each Agent and the Company agree
to perform the respective duties and obligations specifically
provided to be performed by each of them in the Administrative
Procedure. The Company will furnish to the Trustee a copy of the
Administrative Procedure as from time to time in effect.
The Company reserves the right, in its sole discretion,
to instruct the Agents to suspend at any time after the
Commencement Date (as defined in Section 3), for any period of
time or permanently, the solicitation of offers to purchase the
Securities. As soon as practicable, but in any event not later
than one business day in New York City, after receipt of notice
from the Company, the Agents will suspend solicitation of offers
to purchase Securities from the Company until such time as the
Company has advised the Agents that such solicitation may be
resumed.
The Company agrees to pay each Agent a commission, at
the time of settlement of any sale of a Security by the Company
as a result of a solicitation made by such Agent, in an amount
equal to the following applicable percentage of the principal
amount of such Security sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------- ------------------
From 9 months to less than 1 year 0.125%
From 1 year to less than 18 months 0.150%
From 18 months to less than 2 years 0.200%
From 2 years to less than 3 years 0.250%
From 3 years to less than 4 years 0.350%
From 4 years to less than 5 years 0.450%
From 5 years to less than 6 years 0.500%
From 6 years to less than 7 years 0.550%
From 7 years to less than 10 years 0.600%
From 10 years to less than 15 years 0.625%
From 15 years to less than 20 years 0.700%
From 20 years to less than 30 years 0.750%
From 30 years to 40 years 0.875%
(b) Each sale of Securities to any Agent as principal
shall be made in accordance with the terms of this Agreement and
(unless the Company and such Agent shall otherwise agree in
writing or orally) a Terms Agreement which will provide for the
sale of such Securities to, and the purchase thereof by, such
Agent; it being understood that (unless the Company and such
Agent shall otherwise agree in writing) any such oral agreement
relating to the sale of Securities to such Agent as principal (i)
shall be deemed to incorporate all the terms and conditions set
forth in the form of Terms Agreement attached hereto as Annex I
and (ii) shall be promptly confirmed in writing. A Terms
Agreement may also specify certain provisions relating to the
reoffering of such Securities by such Agent. The commitment of
any Agent to purchase Securities as principal, whether pursuant
to any Terms Agreement or otherwise, shall be deemed to have been
made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and
conditions herein set forth. Each Terms Agreement shall specify
the principal amount of Securities to be purchased by any Agent
pursuant thereto, the price to be paid to the Company for such
Securities, any provisions relating to rights of, and default by,
underwriters acting together with such Agent in the reoffering of
the Securities and the time and date and place of delivery of and
payment for such Securities. Such Terms Agreement shall also
specify any requirements for opinions of counsel, accountants'
letters and officers' certificates pursuant to Section 4 hereof.
For each sale of Securities to an Agent as principal
that is not made pursuant to a Terms Agreement, the procedural
details relating to the issue and delivery of such Securities and
payment therefor shall be as set forth in the Administrative
Procedure and the Company agrees to pay such Agent a commission
(or grant an equivalent discount) as provided in Section 2(a)
hereof and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for
Securities to be purchased by an Agent as principal, whether set
forth in a Terms Agreement or in accordance with the
Administrative Procedure, is referred to herein as a "Time of
Delivery."
3. The documents required to be delivered pursuant to
Section 6 hereof on the Commencement Date (as defined below)
shall be delivered to the Agents at the offices of Thelen Reid &
Priest LLP, 40 West 57th Street, New York, New York, at 11:00
a.m., New York City time, on the date of this Agreement, which
date and time of such delivery may be postponed by agreement
between the Agents and the Company but in no event shall be later
than the day prior to the date on which solicitation of offers to
purchase Securities is commenced or on which any Terms Agreement
is executed by the parties thereto (such time and date being
referred to herein as the "Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the
Registration Statement or the Prospectus (A) prior to the
Commencement Date to which any Agent shall reasonably
disapprove by notice to the Company promptly after
reasonable notice thereof or (B) after the date of any Terms
Agreement or other agreement by an Agent to purchase
Securities as principal and prior to the related Time of
Delivery which shall be reasonably disapproved by notice to
the Company by any Agent party to such Terms Agreement or so
purchasing as principal promptly after reasonable notice
thereof; (ii) to prepare, with respect to any Securities to
be sold through or to such Agent pursuant to this Agreement,
a Pricing Supplement with respect to such Securities in a
form previously approved by such Agent and to file such
Pricing Supplement pursuant to Rule 424(b)(3) under the Act
not later than the close of business of the Commission on
the third business day following the date on which such
Pricing Supplement is first used; (iii) to make no amendment
or supplement to the Registration Statement or Prospectus,
other than any Pricing Supplement, at any time prior to
having afforded each Agent a reasonable opportunity to
review and comment thereon; (iv) to file in a timely manner
all reports and any definitive proxy or information
statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of the
Securities, and during such period to advise such Agent,
promptly after the Company received notices thereof, of the
time when any amendment to the Registration Statement has
been filed or has become effective or any supplement to the
Prospectus or any amended Prospectus (other than any Pricing
Supplement that relates to Securities not purchased through
or by such Agent) has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating
to the Securities, of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the
amendment or supplement of the Registration Statement or
Prospectus or for additional information; (v) in the event
of the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or
suspending any such qualification, to use promptly every
reasonable effort to obtain its withdrawal; and (vi) to
notify the Agents promptly of any change in the rating
assigned by any nationally recognized statistical rating
organization to any debt securities of the Company
(including the Securities) of the Company, or the public
announcement by any nationally recognized statistical rating
organization that it has under surveillance or review, with
possible negative implications, its rating of the Securities
or any such debt securities, or the withdrawal by any
nationally recognized statistical rating organization of its
rating of the Securities or any such debt securities.
(b) Promptly from time to time to take such
action as such Agent may reasonably request to qualify the
Securities for offering and sale under the securities laws
of such jurisdictions as may be approved by the Company and
to comply with such laws so as to permit the continuance of
sales and dealings therein for as long as may be necessary
to complete the distribution or sale of the Securities;
provided, however, that in connection therewith the Company
shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any
jurisdiction, or to comply with any other requirement
reasonably deemed by the Company to be unduly burdensome;
(c) To furnish such Agent with copies of the
Registration Statement and each amendment thereto, and with
copies of the Prospectus as each time amended or
supplemented, other than any Pricing Supplement (except as
provided in the Administrative Procedure), in the form in
which it is filed with the Commission pursuant to Rule 424
under the Act, in such quantities as such Agent may
reasonably request from time to time, and with copies of the
documents incorporated by reference therein; and, if the
delivery of a prospectus is required at any time in
connection with the offering or sale of the Securities
(including Securities purchased from the Company by such
Agent as principal) and if at such time any event shall have
occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary at such time to amend or
supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify such agent and request such Agent,
in its capacity as agent of the Company, to suspend
solicitation of offers to purchase Securities from the
Company (and, if so notified, such Agent shall cease such
solicitations as soon as practicable, but in any event not
later than one business day later); and if the Company shall
decide to amend or supplement the Registration Statement or
the Prospectus as then amended or supplemented, to so advise
such Agent promptly by telephone (with confirmation in
writing) and to prepare and cause to be filed promptly with
the Commission an amendment or supplement to the
Registration Statement or the Prospectus as then amended or
supplemented or to file any document under the Exchange Act
that will correct such statement or omission or effect such
compliance; provided, however, that, should such event
relate solely to activities of any Agent, then such Agent
shall assume the expense of preparing and furnishing any
such amendment or supplement; and provided, further, that if
at such time such Agent continues to own Securities
purchased from the Company by such Agent as principal or
such Agent is otherwise required to deliver a prospectus in
respect of transactions in the Securities, the Company shall
promptly prepare and file with the Commission such an
amendment or supplement. For the purposes of this
subsection (c), the Company shall be entitled to assume that
a Prospectus shall no longer be required to be delivered
under the Act from and after the date six months from the
date of the purchase thereof by an Agent as principal,
unless it shall have received notice from such Agent to the
contrary;
(d) To make generally available to its security
holders as soon as practicable, but in any event not later
than eighteen months after (i) the effective date of the
Registration Statement, (ii) the effective date of each
post-effective amendment to the Registration Statement, and
(iii) the date of each filing by the Company with the
Commission of an Annual Report on Form 10-K that is
incorporated by reference in the Registration Statement, an
earning statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) For the period ending five years from the
date any Securities are sold by the Company pursuant to an
offer solicited by such Agent, to furnish to such Agent
copies of all reports or other communications (financial or
other) furnished to stockholders, and deliver to such Agent
(i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the
Commission or any national securities exchange on which any
class of securities of the Company is listed and (ii) such
additional information concerning the business and financial
condition of the Company as such Agent may from time to time
reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company
and its subsidiaries are consolidated in reports furnished
to its stockholders generally or to the Commission);
(f) That, from the date of any Terms Agreement
with such Agent or other agreement by such Agent to purchase
Securities as principal and continuing to and including the
earlier of (i) the termination of the trading restrictions
for the Securities purchased thereunder, as notified to the
Company by such Agent and (ii) the related Time of Delivery,
it will not offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company in a public
offering which both mature more than nine months after such
Time of Delivery and are substantially similar to the
Securities, without the prior written consent of such Agent;
(g) That each acceptance by the Company of an
offer to purchase Securities hereunder (including any
purchase by such Agent as principal not pursuant to a Terms
Agreement), and each execution and delivery by the Company
of a Terms Agreement with such Agent, shall be deemed to be
an affirmation to such Agent that the representations and
warranties of the Company contained in or made pursuant to
this Agreement are true and correct as of the date of such
acceptance or of such Terms Agreement, as the case may be,
as though made at and as of such date, and an undertaking
that such representations and warranties will be true and
correct as of the settlement date for the Securities
relating to such acceptance or as of the Time of Delivery
relating to such sale, as the case may be, as though made at
and as of such date (except that such representations and
warranties shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented
relating to such Securities);
(h) That reasonably in advance of each time the
Registration Statement or the Prospectus shall be amended or
supplemented (other than by a Pricing Supplement) and each
time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus, and each time
the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of an opinion or opinions by Sullivan
& Cromwell, of New York, New York, counsel to the Agents, as
a condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish to such counsel
such papers and information as they may reasonably request
to enable them to furnish to such Agent such opinion or
opinions referred to in Section 6(c) hereof;
(i) That each time the Registration Statement or
the Prospectus shall be amended or supplemented (other than
by a Pricing Supplement), each time a document filed under
the Act or the Exchange Act is incorporated by reference
into the Prospectus (except for a Current Report on Form 8-K
that is filed solely for the purpose of filing exhibits
pursuant to Item 601 of Regulation S-K, unless the Agent
shall otherwise reasonably request), and each time the
Company sells Securities to such Agent as principal pursuant
to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion under this Section 4(i) as a
condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a written letter of David
J. Meyer, Esq., Senior Vice President and General Counsel to
the Company, or other counsel to the Company satisfactory to
such Agent, dated the date of such amendment, supplement,
incorporation or Time of Delivery relating to such sale, as
the case may be, in form satisfactory to such Agent, to the
effect that such Agent may rely on the opinion of such
counsel referred to in Section 6(d) hereof which was last
furnished to such Agent to the same extent as though it were
dated the date of such letter authorizing reliance (except
that the statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as
amended and supplemented to such date) or, in lieu of such
opinion, an opinion of the same tenor as the opinion of such
counsel referred to in Section 6(d) hereof but modified to
relate to the Registration Statement and the Prospectus as
amended and supplemented to such date;
(j) That each time the Registration Statement or
the Prospectus shall be amended or supplemented (other than
by a Pricing Supplement), each time a document filed under
the Act or the Exchange Act is incorporated by reference
into the Prospectus (except for a Current Report on Form 8-K
that is filed solely for the purpose of filing exhibits
pursuant to Item 601 of Regulations S-K, unless the Agent
shall otherwise reasonably request), and each time the
Company sells Securities to such Agent as principal pursuant
to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion under this Section 4(j) as a
condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a written opinion of
Paine, Hamblen, Coffin, Brooke & Miller LLP, of Spokane,
Washington, counsel to the Company, or other counsel to the
Company satisfactory to such Agent, dated the date of such
amendment, supplement, incorporation or Time of Delivery
relating to such sale, as the case may be, in form
satisfactory to such Agent, to the effect that such Agent
may rely on the opinion of such counsel referred to in
Section 6(e) hereof which was last furnished to such Agent
to the same extent as though it were dated the date of such
letter authorizing reliance (except that the statements in
such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such opinion, an
opinion of the same tenor as the opinion of such counsel
referred to in Section 6(e) hereof but modified to relate to
the Registration Statement and the Prospectus as amended and
supplemented to such date;
(k) That each time the Registration Statement or
the Prospectus shall be amended or supplemented (other than
by a Pricing Supplement), each time a document filed under
the Act or the Exchange Act is incorporated by reference
into the Prospectus (except for a Current Report on Form 8-K
that is filed solely for the purpose of filing exhibits
pursuant to Item 601 of Regulation S-K, unless the Agent
shall otherwise reasonably request), and each time the
Company sells Securities to such Agent as principal pursuant
to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion under this Section 4(k) as a
condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a written opinion of
Thelen Reid & Priest LLP, of New York, New York, counsel to
the Company, or other counsel to the Company satisfactory to
such Agent, dated the date of such amendment, supplement,
incorporation or Time of Delivery relating to such sale, as
the case may be, in form satisfactory to such Agent, to the
effect that such Agent may rely on the opinion of such
counsel referred to in Section 6(f) hereof which was last
furnished to such Agent to the same extent as though it were
dated the date of such letter authorizing reliance (except
that the statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as
amended and supplemented to such date) or, in lieu of such
opinion, an opinion of the same tenor as the opinion of such
counsel referred to in Section 6(f) hereof but modified to
relate to the Registration Statement and the Prospectus as
amended and supplemented to such date;
(l) That each time the Registration Statement or
the Prospectus shall be amended or supplemented, other than
by a Pricing Supplement, and each time that a document filed
under the Act or the Exchange Act is incorporated by
reference into the Prospectus (except for a Current Report
on Form 8-K that is filed solely for the purpose of filing
exhibits pursuant to Item 601 of Regulation S-K, unless the
Agent shall otherwise reasonably request), in either case to
set forth financial information included in or derived from
the Company's consolidated financial statements or
accounting records, and each time the Company sells
Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of
a letter under this Section 4(l) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the
Company shall cause the independent certified public
accountants who have certified the financial statements of
the Company and its subsidiaries included or incorporated by
reference in the Registration Statement forthwith to furnish
such Agent a letter, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to
such sale, as the case may be, in form satisfactory to such
Agent, of the same tenor as the letter referred to in
Section 6(g) hereof but modified to relate to the
Registration Statement and the Prospectus as amended or
supplemented to the date of such letter, with such changes
as may be necessary to reflect changes in the financial
statements and other information derived from the accounting
records of the Company, to the extent such financial
statements and other information are available as of a date
not more than five business days prior to the date of such
letter; provided, however, that, with respect to any
financial information or other matter, such letter may
reconfirm as true and correct at such date as though made at
and as of such date, rather than repeat, statements with
respect to such financial information or other matter made
in the letter referred to in Section 6(f) hereof which was
last furnished to such Agent;
(m) That each time the Registration Statement or
the Prospectus shall be amended or supplemented (other than
by a Pricing Supplement), each time a document filed under
the Act or the Exchange Act is incorporated by reference
into the Prospectus (except for a Current Report on Form 8-K
that is filed solely for the purpose of filing exhibits
pursuant to Item 601 of Regulation S-K, unless the Agent
shall otherwise reasonably request), and each time the
Company sells Securities to such Agent as principal and the
applicable Terms Agreement specifies the delivery of a
certificate under this Section 4(m) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the
Company shall furnish or cause to be furnished forthwith to
such Agent a certificate, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to
such sale, as the case may be, in such form and executed by
such officers of the Company as shall be satisfactory to
such Agent, to the effect that the statements contained in
the certificate referred to in Section 6(j) hereof which was
last furnished to such Agent are true and correct at such
date as though made at and as of such date (except that such
statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to
such date) or, in lieu of such certificate, certificates of
the same tenor as the certificates referred to in said
Section 6(j) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to
such date;
(n) To offer to any person who has agreed to
purchase Securities as the result of an offer to purchase
solicited by such Agent the right to refuse to purchase and
pay for such Securities if, on the related settlement date
fixed pursuant to the Administrative Procedure, any
condition set forth in Section 6(a), 6(h) or 6(i) hereof
shall not have been satisfied (it being understood that the
judgment of such person with respect to the impracticability
or inadvisability of such purchase of Securities shall be
substituted, for purposes of this Section 4(n), for the
respective judgments referred to therein of an Agent with
respect to certain matters referred to in such Sections
6(a), 6(h) and 6(i), and that such Agent shall have no duty
or obligation whatsoever to exercise the judgment permitted
under such Sections 6(a), 6(h) and 6(i) on behalf of any
such person);
(o) That prior to the issue and sale of
Securities, the Company will have received all consents,
approvals, authorizations, orders, registrations and
qualifications of or with any court or any federal or state
regulatory authority or other governmental agency or body
having jurisdiction over the Company or any of its
properties which are legally required for the issuance by
the Company of such Securities, except for consents,
approvals, authorizations, registrations or qualifications
which may be required under the state securities or Blue Sky
laws as to which no covenant is made except as provided in
Section 4(b) hereof.
5. The Company covenants and agrees with each Agent
that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Securities
under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement,
any Preliminary Prospectus, the Prospectus and any Pricing
Supplements and all other amendments and supplements thereto and
the mailing and delivering of copies thereof to such Agent; (ii)
the fees, disbursements and expenses of counsel to the Agents in
connection with the establishment of the program contemplated
hereby, any opinions to be rendered by such counsel hereunder and
the transactions contemplated hereunder; (iii) the cost of
printing, preparing by word processor or reproducing this
Agreement, any Terms Agreement, any Indenture, any Blue Sky and
Legal Investment Memoranda and any other documents in connection
with the offering, purchase, sale and delivery of the Securities;
(iv) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as
provided in Section 4(b) hereof, including fees and disbursements
of counsel to the Agents in connection with such qualification
and in connection with the Blue Sky and legal investment surveys;
(v) any fees charged by securities rating services for rating the
Securities; (vi) any filing fees incident to any required review
by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vii) the cost of preparing
the Securities; (viii) the fees and expenses of any Trustee and
any agent of any Trustee and any transfer or paying agent of the
Company and the fees and disbursements of counsel to any Trustee
or such agent in connection with any Indenture and the
Securities; (ix) any advertising expenses connected with the
solicitation of offers to purchase and the sale of Securities so
long as such advertising expenses have been approved by the
Company; (x) all other reasonable costs, and expenses incident to
the performance of the Agents' obligations hereunder which are
not otherwise specifically provided for in this Section; and (xi)
all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically
provided for in this Section. Except as provided in Sections 8
and 9 hereof, each Agent shall pay all other expenses it incurs,
including any expenses that may be incurred pursuant to Section
4(c) hereof.
6. The obligation of any Agent, as agent of the
Company, at any time ("Solicitation Time") to solicit offers to
purchase the Securities and the obligation of any Agent to
purchase Securities as principal, pursuant to any Terms Agreement
or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and
warranties and other statements of the Company herein (and, in
the case of an obligation of an Agent under a Terms Agreement, in
or incorporated in such Terms Agreement by reference) are true
and correct at and as of the Commencement Date and any applicable
date referred to in Section 4(m) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at
and as of such Solicitation Time or Time of Delivery, as the case
may be, the condition that prior to such Solicitation Time or
Time of Delivery, as the case may be, the Company shall have
performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at
or prior to such Solicitation Time or Time of Delivery, as
the case may be, the Prospectus as amended or supplemented
(including the Pricing Supplement) with respect to such
Securities shall have been filed or transmitted for filing
with the Commission pursuant to Rule 424(b) under the Act
within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance
with Section 4(a) hereof; (ii) no stop order suspending the
effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall be pending
before, or to the knowledge of the Company or the Agent
contemplated by, the Commission; and (iii) all requests of
the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise)
shall have been complied with to the reasonable satisfaction
of such Agent;
(b) There shall have been issued and there shall
be in full force and effect, appropriate orders of the
Washington Utilities and Transportation Commission, the
California Public Utilities Commission, the Idaho Public
Utilities Commission and the Public Utility Commission of
Oregon permitting the issuance and sale of the Securities on
the terms herein set forth or contemplated, and containing
no provision reasonably unacceptable to the Agents (it being
understood that no such order in effect on the date of this
Agreement contains any such unacceptable provision);
(c) Sullivan & Cromwell, counsel to the Agents,
shall have furnished to such Agent (i) such opinion or
opinions, dated the Commencement Date, with respect to the
incorporation of the Company, the validity of the Indenture,
the Securities, the Registration Statement, the Prospectus
as amended or supplemented and other related matters as such
Agent may reasonably request, and (ii) if and to the extent
requested by such Agent, with respect to each applicable
date referred to in Section 4(h) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case
may be, an opinion or opinions, dated such applicable date,
to the effect that such Agent may rely on the opinion or
opinions which were last furnished to such Agent pursuant to
this Section 6(c) to the same extent as though it or they
were dated the date of such letter authorizing reliance
(except that the statements in such last opinion or opinions
shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date) or,
in any case, in lieu of such an opinion or opinions, an
opinion or opinions of the same tenor as the opinions or
opinions referred to in clause (i) but modified to relate to
the Registration Statement and the Prospectus as amended and
supplemented to such date; and in each case such counsel
shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters.
In rendering such opinion or opinions, Sullivan & Cromwell
may rely, as to the incorporation of the Company and as to
all other matters governed by Washington, California, Idaho,
Montana or Oregon law, upon the opinion of Paine, Hamblen,
Coffin, Brooke & Miller LLP referred to below;
(d) David J. Meyer, Esq. Senior Vice President
and General Counsel to the Company, or other counsel to the
Company satisfactory to such Agent, shall have furnished to
such Agent his written letters, dated the Commencement Date
and each applicable date referred to in Section 4(i) hereof
that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in form and substance
satisfactory to such Agent, to the effect set forth in Annex
III.
(e) Paine, Hamblen, Coffin, Brooke & Miller LLP,
counsel to the Company, or other counsel to the Company
satisfactory to such Agent, shall have furnished to such
Agent their written opinions, dated the Commencement Date
and each applicable date referred to in Section 4(j) hereof
that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in form and substance
satisfactory to such Agent, to the effect set forth in Annex
IV.
In rendering such opinion or opinions, Paine,
Hamblen, Coffin, Brooke & Miller LLP may rely as to all
matters governed by New York law and Federal laws relating
to the issuance and sale of securities upon the opinion of
Thelen Reid & Priest LLP referred to below.
(f) Thelen Reid & Priest LLP, counsel to the
Company, or other counsel to the Company satisfactory to
such Agent, shall have furnished to such Agent their written
opinions, dated the Commencement Date and each applicable
date referred to in Section 4(k) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case
may be, in form and substance satisfactory to such Agent, to
the effect set forth in Annex V.
In rendering such opinion or opinions Thelen Reid
& Priest LLP may rely, as to the incorporation of the
Company and as to all other matters governed by Washington,
California, Idaho, Montana or Oregon law, upon the opinion
of Paine, Hamblen, Coffin, Brooke & Miller LLP referred to
above;
(g) Not later than 11:00 a.m., New York City
time, on the Commencement Date and on each applicable date
referred to in Section 4(l) hereof that is on or prior to
such Solicitation Time or Time of Delivery, as the case may
be, the independent certified public accountants who have
certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to such Agent a
letter, dated the Commencement Date or such applicable date,
as the case may be, in form and substance satisfactory to
such Agent, to the effect set forth in Annex VI hereto;
(h) Except as set forth in or contemplated by the
Prospectus, as amended or supplemented, (A) since the
respective dates as of which information is given in the
Prospectus, as amended or supplemented, there has not been
any material adverse change in the condition of the Company
and its subsidiaries as a whole, financial or otherwise, (B)
since such dates there has not been any transaction entered
into by the Company or any subsidiary thereof which is
material to the Company and its subsidiaries as a whole
other than transactions in the ordinary course of business,
and (C) neither the Company nor any of its subsidiaries has
any contingent obligation which is material to the Company
and its subsidiaries as a whole, and the effect of which, in
any such case, is in the reasonable judgment of such Agent,
so material and adverse as to make it impracticable or
inadvisable to proceed with the solicitation by such Agent
of offers to purchase Securities from the Company or the
purchase by such Agent of Securities from the Company as
principal, as the case may be, on the terms and in the
manner contemplated in the Prospectus as amended or
supplemented;
(i) There shall not have occurred any of the
following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock
Exchange; (ii) trading of any securities of the Company
shall have been suspended or limited on any securities
exchange or in any over-the-counter market; (iii) a general
moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities;
(iv) the outbreak of major hostilities or the material
escalation of existing hostilities so as to result in major
hostilities, or the declaration by the United States of a
national emergency or war, or other national or
international calamity or crisis; or (v) any downgrading in
the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization" (as
that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act) or the placing by any such
organization of the Company's outstanding debt securities or
preferred stock on what is commonly termed a "watch list"
for possible downgrading; provided, however, that in the
case of any event described in clause (iv) or clause (v)
above, the effect of such event, in the reasonable judgment
of such Agent, shall make it impracticable or inadvisable to
proceed with the solicitation of offers to purchase
Securities, the purchase of Securities from the Company as
principal, pursuant to the applicable Terms Agreement or
otherwise, or the enforcement of contracts for the sale of
Securities, as the case may be, on the terms and in the
manner contemplated in the Prospectus as amended or
supplemented; and
(j) The Company shall have furnished or caused to
be furnished to such Agent certificates of officers of the
Company dated the Commencement Date and each applicable date
referred to in Section 4(m) hereof that is on or prior to
such Solicitation Time or Time of Delivery, as the case may
be, in such form and executed by such officers of the
Company as shall be satisfactory to such Agent, as to the
accuracy of the representations and warranties of the
Company herein at and as of the Commencement Date or such
applicable date, as the case may be, as to the performance
by the Company in all material respects of all of its
obligations hereunder to be performed at or prior to the
Commencement Date or such applicable date, as the case may
be, as to the matters set forth in subsections (a) and (h)
of this Section 6, and as to such other matters as such
Agent may reasonably request.
7. The obligation of the Company to sell and deliver
Securities, pursuant to any Terms Agreement or otherwise, shall
in each case be subject to the following conditions:
(a) On the Settlement Date for the Securities or
Time of Delivery, as the case may be, no stop order
suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose
shall be pending before, or to the knowledge of the Company
or the Agent contemplated by, the Commission.
(b) At or before the Settlement Date or Time of
Delivery, as the case may be, there shall have been issued,
and there shall be in full force and effect, appropriate
orders of the Washington Utilities and Transportation
Commission, the California Public Utilities Commission, the
Idaho Public Utilities Commission and the Public Utility
Commission of Oregon permitting the issuance and sale of the
Securities on the terms herein set forth or contemplated,
and containing no provision reasonably unacceptable to the
Company (it being understood that no such order in effect on
the date of this Agreement contains any such unacceptable
provision).
If any of the conditions specified above in this
Section shall not have been fulfilled, the Terms Agreement may be
terminated by the Company without liability on the part of any
party to any other party, except for the obligation of the
Company to pay certain expenses to the extent provided for in
Sections 6(i) and 6(j) hereof and except for any liability under
Section 8 hereof.
8. (a) The Company will indemnify and hold harmless
each Agent against any losses, claims, damages or liabilities,
joint or several, to which such Agent may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Prospectus as amended
or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; and will
reimburse such Agent for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however,
that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus
relating to the Securities, or any such amendment or supplement,
in reliance upon and in conformity with written information
furnished to the Company by such Agent specifically for use in
the preparation thereof; and provided, further, that, the
indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Agent on account of any such losses,
claims, damages or liabilities (or actions in respect thereof)
arising from the sale of the Securities by or through such Agent
to any person if a copy of the Prospectus as it then may be
amended or supplemented (exclusive of the Incorporated Documents)
shall not have been given or sent to such person by such Agent
with or prior to the written confirmation of the sale involved to
the extent that (i) the Prospectus as so amended or supplemented
would have cured the defect in such document giving rise to such
losses, claims, damages or liabilities, (ii) sufficient
quantities of the Prospectus as so amended or supplemented were
timely made available to such Agent and (iii) such Agent shall
not have reasonably objected to such amendment or supplement
pursuant to Section 4(a) hereof.
(b) Each Agent will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Securities,
or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any such
amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Agent
specifically for use in the preparation thereof; and will
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement
of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party
under such subsection, notify the indemnifying party in writing
of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of
investigation. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them.
(d) If the indemnification provided for in this
Section 8 is unavailable to or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above in respect of
any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and each Agent on the other from the
offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates and the relative
fault of the Company on the one hand and the Agent on the other
in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and each Agent on the
other shall be deemed to be in the same proportion as the total
net proceeds from the sale of Securities (before deducting
expenses) received by the Company bear to the total commissions
or discounts received by such Agent in respect thereof. The
relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact required to be stated therein or necessary in order
to make the statements therein not misleading relates to
information supplied by the Company on the one hand or by any
Agent on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company and each Agent agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) were determined by per capita allocation (even if
all Agents were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the
equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions
in respect thereof) referred to above in this subsection (d)
shall, except as limited by subsection (c) above, be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), an Agent shall not be required to contribute any
amount in excess of the amount by which the total public offering
price at which the Securities purchased by or through it were
sold exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The obligations of each of the Agents under
this subsection (d) to contribute are several in proportion to
the respective purchases made by it or through it to which such
loss, claim, damage or liability (or action in respect thereof)
relates and are not joint.
(e) The obligations of the Company under this Section
8 shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Agent within
the meaning of the Act; and the obligations of each Agent under
this Section 8 shall be in addition to any liability which such
Agent may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer
of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company within the meaning
of the Act.
9. (a) Each Agent, in soliciting offers to purchase
Securities from the Company and in performing the other
obligations of such Agent hereunder (other than in respect of any
purchase by an Agent as principal pursuant to a Terms Agreement
or otherwise), is acting solely as agent for the Company and not
as principal. Each Agent will make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose
offer to purchase Securities from the Company was solicited by
such Agent and has been accepted by the Company, but such Agent
shall not have any liability to the Company in the event such
purchase is not consummated for any reason.
(b) If the Company shall default on its obligation to
deliver Securities to a purchaser whose offer it has accepted,
the Company shall (i) hold each Agent harmless against any loss,
claim or damage arising from or as a result of such default by
the Company and (ii) notwithstanding such default, pay to the
Agent that solicited such offer any commission to which it would
be entitled in connection with such sale.
10. The respective indemnities, agreements, repre-
sentations, warranties and other statements by any Agent and the
Company set forth in or made pursuant to this Agreement shall
remain in full force and effect regardless of any investigation
(or any statement as to the results thereof) made by or on behalf
of any Agent or any controlling person of any Agent or the
Company, or any officer or director or any controlling person of
the Company, and shall survive each delivery of and payment for
any of the Securities.
11. The provisions of this Agreement relating to the
solicitation of offers to purchase securities from the Company
may be suspended or terminated at any time by the Company as to
any Agent or by any Agent as to such Agent upon the giving of
written notice of such suspension or termination to such Agent or
the Company, as the case may be. In the event of such suspension
or termination with respect to any Agent, (x) this Agreement
shall remain in full force and effect with respect to any Agent
as to which such suspension or termination has not occurred, (y)
this Agreement shall remain in full force and effect with respect
to the rights and obligations of any party which have previously
accrued or which relate to Securities which are already issued,
agreed to be issued or the subject of a pending offer at the time
of such suspension or termination and (z) in any event, this
Agreement shall remain in full force and effect insofar as the
fourth paragraph of Section 2(a), Section 4(d), Section 4(e),
Section 5, Section 8, Section 9 and Section 10 hereof are
concerned.
12. Except as otherwise specifically provided herein
or in the Administrative Procedure, all statements, requests,
notices and advices hereunder shall be in writing, or by
telephone if promptly confirmed in writing, and if to [Insert
name of Agent] shall be sufficient in all respects when delivered
or sent by facsimile transmission or registered mail to [Insert
address of Agent], Facsimile Transmission No. [Insert number],
Attention: [Insert name], Telephone No. [Insert number], with a
copy to [Insert address], Facsimile Transmission No. [Insert
number], Attention: [Insert name], Telephone No. [Insert number],
and if to [Insert name of Agent] shall be sufficient in all
respects when delivered or sent by facsimile transmission or
registered mail to [Insert address], Facsimile Transmission No.
[Insert number], Attention: [Insert name], Telephone No. [Insert
number], and if to [Insert name of Agent] shall be sufficient in
all respects when delivered or sent by facsimile transmission or
registered mail to [Insert address], Facsimile Transmission No.
[Insert number], Attention: [Insert name], Telephone No. [Insert
number], and if to the Company shall be sufficient in all
respects when delivered or sent by facsimile transmission or
registered mail to 1411 East Mission Avenue, Spokane, Washington
99202, Attention: Treasurer, Facsimile Transmission No. (509)
495-4879, telephone No. (509) 495-0500.
13. This Agreement and any Terms Agreement shall be
binding upon, and inure solely to the benefit of, each Agent and
the Company, and to the extent provided in Section 8, Section 9
and Section 10 hereof, the officers and directors of the Company
and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and
no other person shall acquire or have any right under or by
virtue of this Agreement or any Terms Agreement. No purchaser of
any of the Securities through or from any Agent hereunder shall
be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence in this Agreement and
any Terms Agreement. As used herein, the term "business day"
shall mean any day when the office of the Commission in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
16. This Agreement and any Terms Agreement may be
executed by any one or more of the parties hereto and thereto in
any number of counterparts, each of which shall be an original,
but all of such respective counterparts shall together constitute
one and the same instrument.
<PAGE>
If the foregoing is in accordance with your under-
standing, please sign and return to us four counterparts hereof,
whereupon this letter and the acceptance by each of you thereof
shall constitute a binding agreement between the Company and each
of you in accordance with its terms.
Very truly yours,
AVISTA CORPORATION
By:
--------------------------
Title:
Accepted in New York, New York
as of the date hereof:
[INSERT NAME OF AGENT]
By:
-------------------------------
Title:
[INSERT NAME OF AGENT]
By:
-------------------------------
Title:
[INSERT NAME OF AGENT]
By:
-------------------------------
Title:
<PAGE>
ANNEX I
Avista Corporation
Medium-Term Notes, Series D
Terms Agreement
---------------
, 19
------------------ --
[Insert name and address of Agent]
[Insert name and address of Agent]
[Insert name and address of Agent]
Ladies and Gentlemen:
Avista Corporation (the "Company") proposes, subject to
the terms and conditions stated herein and in the Distribution
Agreement, dated , 1999 (the "Distribution Agreement"),
--------
between the Company on the one hand and [Insert name Agent],
[Insert name Agent] and [Insert name Agent] (the "Agents") on the
other, to issue and sell to [Insert name Agent] [Insert name
Agent] [Insert name Agent] the securities specified in the
Schedule hereto (the "Purchased Securities"). Each of the
provisions of the Distribution Agreement not specifically related
to the solicitation by the Agents, as agents of the Company, of
offers to purchase Securities is incorporated herein by reference
in its entirety, and shall be deemed to be part of this Terms
Agreement to the same extent as if such provisions had been set
forth in full herein. Nothing contained herein or in the
Distribution Agreement shall make any party hereto an agent of
the Company or make such party subject to the provisions therein
relating to the solicitation of offers to purchase securities
from the Company, solely by virtue of its execution of this Terms
Agreement. Each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date
of this Terms Agreement, except that each representation and
warranty in Section 1 of the Distribution Agreement which makes
reference to the Prospectus shall be deemed to be a
representation and warranty as of the date of the Distribution
Agreement in relation to the Prospectus (as therein defined), and
also a representation and warranty as of the date of this Terms
Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a
supplement to the Prospectus, as the case may be, relating to the
Purchased Securities, in the form heretofore delivered to you is
now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein
and in the Distribution Agreement incorporated herein by
reference, the Company agrees to issue and sell to [Insert name
Agent] [Insert name Agent] [Insert name Agent] and [Insert name
Agent] [Insert name Agent] [Insert name Agent] agrees to purchase
from the Company the Purchased Securities, at the time and place,
in the principal amount and at the purchase price set forth in
the Schedule hereto.
<PAGE>
If the foregoing is in accordance with your
understanding, please sign and return to us three counterparts
hereof, and upon acceptance hereof by you this letter and such
acceptance hereof, including those provisions of the Distribution
Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
AVISTA CORPORATION
By:
----------------------------
Accepted in New York, New York,
as of the date hereof:
[INSERT NAME AGENT]
By:
--------------------------------
Title:
[INSERT NAME AGENT]
By:
--------------------------------
Title:
[INSERT NAME AGENT]
By:
--------------------------------
Title:
<PAGE>
Schedule to Annex I
Title of Purchased Securities:
-----------------------------
Medium-Term Notes, Series D
Aggregate Principal Amount:
--------------------------
$
[Price to Public:]
Purchase Price by: [Insert Name Agent] [Insert Name Agent]
[Insert Name Agent]
% of the principal amount of the Purchased Securities
[, plus accrued interest from to ] [and accrued
amortization, if any, from to ]
Method of and Specified Funds for Payment of Purchase Price:
-----------------------------------------------------------
[By certified or official bank check or checks, payable
to the order to the Company, in [New York Clearing House]
[immediately available] funds]
[By wire transfer to a bank account specified by the
Company in [next day] [immediately available] funds]
Time of Delivery:
----------------
Closing Location:
----------------
Maturity:
--------
Interest Rate:
-------------
%
Interest Payment Dates:
----------------------
[months and dates]
Documents to Delivered:
----------------------
The following documents referred to in the Distribution
Agreement shall be delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents
referred to in Section 4(h).]
[(2) The opinion of counsel to the Company referred to
in Section 4(i).]
[(3) The opinion of counsel to the Company referred to
in Section 4(j).]
[(4) The opinion of counsel to the Company referred to
in Section 4(k).]
[(5) The accountants' letter referred to in Section
4(l).]
[(6) The officers' certificate referred to in Section
4(m).]
Other provisions (including Syndicate Provisions, if applicable):
----------------------------------------------------------------
<PAGE>
ANNEX II
Avista Corporation
Administrative Procedure
------------------------
This Administrative Procedure relates to the Securities
defined in the Distribution Agreement, dated , 1999 (the
--------
"Distribution Agreement"), between Avista Corporation (the
"Company") and [Insert Name Agent], [Insert Name Agent] and
[Insert Name Agent] (the "Agents"), to which this Administrative
Procedure is attached as Annex II. Defined terms used herein and
not defined herein shall have the meanings given such terms in
the Distribution Agreement, the Prospectus (as defined therein),
as amended or supplemented, or the Indenture referred to below.
The procedures to be followed with respect to the
settlement of sales of Securities directly by the Company to
purchasers solicited by an Agent, as agent, are set forth below.
The terms and settlement details related to a purchase of
Securities by an Agent, as principal, from the Company will be
set forth in a Terms Agreement pursuant to the Distribution
Agreement, unless the Company and such Agent otherwise agree as
provided in Section 2(b) of the Distribution Agreement, in which
case the procedures to be followed in respect of the settlement
of such sale will be as set forth below. An Agent, in relation
to a purchase of a Security by a purchaser solicited by such
Agent, is referred to herein as the "Selling Agent" and, in
relation to a purchase of a Security by such Agent as principal
other than pursuant to a Terms Agreement, as the "Purchasing
Agent."
The Securities will be issued under the Company's
Indenture, dated as of April 1, 1998, to The Chase Manhattan
Bank, as trustee (the "Trustee") as it will be supplemented by an
Officer's Certificate dated , 1999 (such Indenture, as so
--------
supplemented and as it may be amended and further supplemented,
being hereinafter referred to as the "Indenture"). The Chase
Manhattan Bank ("Chase") will act as paying agent for the payment
of principal and of premium, if any, and interest on the
Securities, and will perform in various capacities unless
otherwise specified by the Company or agreed by the parties, the
other duties specified herein.
The Company will advise each Agent in writing of those
persons with whom such Agent is to communicate regarding offers
to purchase Securities and the related settlement details.
Each tranche of the Securities will be represented
entirely by either a Global Security (as defined below) delivered
to Chase, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC (a "Book-
Entry Security") or by a certificate(s) issued as a registered
Security or Securities delivered to the holder(s) thereof or a
person(s) designated by such holder(s) (a "Certificated
Security"). An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security
except under the limited circumstances described in the
Prospectus. An owner of a Certificated Security will not be
entitled to become in lieu thereof the owner of a Book-Entry
Security.
Administrative procedures and specific terms of the
offering are explained below. Certificated Securities will be
issued in accordance with the administrative procedures set forth
in Part I hereof and Book-Entry Securities will be issued in
accordance with the administrative procedures set forth in Part
II hereof. Administrative responsibilities and record-keeping
functions not performed by Chase or DTC will be performed by the
Company's Treasurer or its Assistant Treasurer.
PART I: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
------------------------
The Company and the Agents will discuss from time to
time the rates of interest per annum to be borne by and the
maturity of Certificated Securities that may be sold as a result
of the solicitation of offers by an Agent. The Company may
establish interest rates and maturities for an offering period
("posting") which shall, at all times, be within the limitations
set forth by the Company's Board of Directors and in the orders
of the Washington Utilities and Transportation Commission
("WUTC"), the California Public Utilities Commission ("CPUC"),
the Idaho Public Utilities Commission ("IPUC") and the Public
Utility Commission of Oregon ("OPUC") applicable to the issuance
and sale of the Securities. If the Company decides to change
already posted rates, it will promptly advise the Agents to
suspend solicitation of offers until the new posted rates have
been established with the Agents.
Acceptance of Offers by Company:
-------------------------------
Each Agent will promptly advise the Company by
telephone or other appropriate means of all reasonable offers to
purchase Certificated Securities, other than those rejected by
such Agent. Each Agent may, in its discretion reasonably
exercised, reject any offer received by it in whole or in part.
Each Agent also may make offers to the Company to purchase
Certificated Securities as a Purchasing Agent. The Company will
have the sole right to accept offers to purchase Certificated
Securities and may reject any such offer in whole or in part.
The Company will promptly notify the Selling Agent or
Purchasing Agent, as the case may be, of its acceptance or
rejection of an offer to purchase Certificated Securities. If
the Company accepts as offer to purchase Certificated Securities,
it will confirm such acceptance in writing to the Selling Agent
or Purchasing Agent, as the case may be, and Chase.
Communication of Sale Information to Company by Selling Agent:
-------------------------------------------------------------
After the acceptance of an offer by the Company, the
Selling Agent or Purchasing Agent, as the case may be, will
communicate the following details of the terms of such offer (the
"Sale Information") to the Company by telephone (confirmed in
writing) or by facsimile transmission or other acceptable written
means:
(1) Whether the Security is a Certificated Security or
a Book-Entry Security;
(2) Principal amount of Certificated Securities to be
purchased;
(3) Interest rate, interest payment dates, including
without limitation all necessary information with
respect to Floating Rate Notes, and initial
interest payment date;
(4) Stated Maturity Date;
(5) Issue Price;
(6) Selling Agent's commission or Purchasing Agent's
discount or commission, as the case may be;
(7) Net proceeds to the Company;
(8) Settlement Date (Original Issue Date);
(9) If a redeemable Certificated Security, such of the
following as are applicable:
(a) Initial Redemption Date;
(b) Initial Redemption Price (% of par);
(c) Amount (% of par) that the Redemption Price
shall decline (but not below par) ("Reduction
Percentage") and the dates on which such
Redemption Price shall decline after the
Initial Redemption Date; and
(d) Redemption Limitation Date.
(10) Name, address and taxpayer identification number
of the registered owner;
(11) Denomination of certificates to be delivered at
Settlement; and
(12) All other information necessary to complete the
form of Security prior to its authentication and
delivery.
Preparation of Pricing Supplement by Company:
--------------------------------------------
If the Company accepts an offer to purchase a
Certificated Security, it will prepare a Pricing Supplement. The
Company will arrange to have ten Pricing Supplements filed with
the Commission not later than the close of business of the
Commission on the third Business Day following the date on which
such Pricing Supplement is first used and will supply at least
ten copies of such Pricing Supplement to the Selling Agent or
Purchasing Agent, as the case may be. In addition, the Company
will file as required copies of the Pricing Supplement with the
applicable state regulatory authorities concurrently with the
filing of the Pricing Supplement with the Commission.
Delivery of Confirmation and Prospectus to Purchaser by Selling
---------------------------------------------------------------
Agent:
-----
The Selling Agent will deliver to the purchaser of a
Security a written confirmation of the sale and delivery and
payment instructions. In addition, the Selling Agent will
deliver to such purchaser or its agent the prospectus as amended
or supplemented (including the Pricing Supplement) relating to
such Certificated Security prior to or together with the earlier
of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Certificated Security.
Date of Settlement:
------------------
The receipt by the Company of immediately available
funds in payment for a Certificated Security shall constitute
"Settlement" with respect to such Certificated Security. All
orders accepted by the Company will be settled on a date (the
"Settlement Date") which is the third Business Day after the date
of acceptance of such offer, unless the Company and the purchaser
agree to Settlement (a) on any other Business Day after the
acceptance of such offer or (b) with respect to an offer accepted
by the Company prior to 10:00 a.m., New York City time, on the
date of such acceptance, provided that such day shall be a
Business Day.
Instruction from Company to Trustee for Preparation of
------------------------------------------------------
Certificated Securities:
-----------------------
After receiving the Sale Information from the Selling
Agent or Purchasing Agent, as the case may be, the Company will
communicate such Sale Information to the Trustee by Company Order
by facsimile transmission or other acceptable written means.
The Company will instruct the Trustee by Company Order
by facsimile transmission or other acceptable written means to
authenticate and deliver the Certificated Securities no later
than 2:15 p.m., New York City time, on the Settlement Date. Such
instruction will be given by the Company prior to 3:00 p.m., New
York City time, on the Business Day prior to the Settlement Date
unless the Settlement Date is the date of acceptance by the
Company of the offer to purchase Certificated Securities in which
case such instruction will be given by the Company to the Trustee
by 11:00 a.m., New York City time.
Preparation and Delivery of Securities by Trustee and Receipt of
----------------------------------------------------------------
Payment Therefor:
----------------
The Trustee will prepare each Certificated Security and
appropriate receipts that will serve as the documentary control
of the transaction.
In the case of a sale of Certificated Securities to a
purchaser solicited by an Agent, the Trustee will, by 2:15 p.m.,
New York City time, on the Settlement Date, deliver the
Certificated Securities to the Selling Agent, at the address
listed below, for the benefit of the purchaser of such
Certificated Securities against delivery by the Selling Agent of
a receipt therefor. On the Settlement Date the Selling Agent
will deliver payment for such Certificated Securities in
immediately available funds to the Company's account at a bank
designated by the Company and notified by the Company to the
Selling Agent at least three days prior to the Settlement Date in
an amount equal to the issue price of the Certificated Securities
less the Selling Agent's commission. Any monies received by an
Agent from a purchaser of Securities in payment of the purchase
price of such Securities from the time the Trustee delivers the
Securities to the Selling Agent to the time the Agent delivers
payment for such Securities to the Company's account, as provided
above, shall be held by such Agent, as agent of the Company.
In the case of a sale of Certificated Securities to a
Purchasing Agent, the Trustee will, by 2:15 p.m., New York City
time, on the Settlement Date, deliver the Certificated Securities
to the Purchasing Agent against delivery by the Purchasing Agent
of a receipt therefor. On the Settlement Date, the Purchasing
Agent will deliver payment for such Certificated Securities in
immediately available funds, or otherwise pursuant to the Terms
Agreement, to the account of the Company as designated in the
preceding paragraph in an amount equal to the issue price of the
Certificated Securities less the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
-----------------------------------------
If a purchaser (other than a Purchasing Agent) fails to
make payment to the Selling Agent for a Certificated Security,
the Selling Agent will promptly notify the Trustee and the
Company thereof by telephone (promptly confirmed in writing) or
by facsimile transmission or by other acceptable written means.
The Selling Agent will immediately return the Certificated
Security to the Trustee. Immediately upon receipt of such
Certificated Security by the Trustee, the Company will return to
the Selling Agent the amount previously paid to the Company in
respect of such Certificated Security. The Company will, in
addition, reimburse the Selling Agent on an equitable basis for
its loss of the use of funds during the period when they were
credited to the account of the Company; provided, however, that
the Selling Agent shall be entitled to no reimbursement hereunder
if funds are returned on the day on which such funds had been
previously credited to the account of the Company such that the
Selling Agent is afforded a reasonable opportunity to invest such
funds at an overnight rate on such day; and provided further that
if the Selling Agent is denied the use of such funds due to its
failure to return the relevant Certificated Security to the
Trustee in a timely manner it shall only be entitled to
reimbursement hereunder in an amount equal to the amount that
would have been earned on such funds had such funds been on
deposit at an overnight rate during the period between their
credit to the account of the Company and their reimbursement to
the Agent.
The Trustee will cancel the Certificated Security in
respect of which the failure occurred, make appropriate entries
in its records and, unless otherwise instructed by the Company,
dispose of the Certificated Security.
Delivery of the Certificated Securities:
---------------------------------------
Unless otherwise notified by any Agent to the Trustee,
the Trustee shall deliver the Certificated Securities in
accordance with the procedures set forth above to any Agent (as
the case may be) at the following addresses:
<PAGE>
PART II: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry
Securities for eligibility in the book-entry system maintained by
DTC, Chase will perform the custodial, document control and
administrative functions described below, in accordance with its
respective obligations under a Letter of Representations from the
Company and Chase to DTC, dated April 24, 1998, a Bring-Down
Letter of Representations from the Company and Chase to DTC,
dated the date hereof, and a Medium-Term Note Certificate
Agreement between Chase and DTC, dated as of December 2, 1988
("Certificate Agreement"), and its obligations as a participant
in DTC, including DTC's Same-Day Funds Settlement System
("SDFS").
Posting Rates by Company:
------------------------
The Company and the Agents will discuss from time to
time the rates of interest per annum to be borne by and the
maturity of Book-Entry Securities that may be sold as a result of
the solicitation of offers by an Agent. The Company may
establish interest rates and maturities for an offering period
("posting") which shall, at all times, be within the limitations
set forth by the Company's Board of Directors and in the orders
of the WUTC, CPUC, IPUC and OPUC applicable to the issuance and
sale of the Securities. If the Company decides to change already
posted rates, it will promptly advise the Agents to suspend
solicitation of offers until the new posted rates have been
established with the Agents.
Acceptance of Offers by Company:
-------------------------------
Each Agent will promptly advise the Company by
telephone or other appropriate means of all reasonable offers to
purchase Book-Entry Securities, other than those rejected by such
Agent. Each Agent may, in its discretion reasonably exercised,
reject any offer received by it in whole or in part. Each Agent
also may make offers to the Company to purchase Book-Entry
Securities as a Purchasing Agent. The Company will have the sole
right to accept offers to purchase Book-Entry Securities and may
reject any such offer in whole or in part.
The Company will promptly notify the Selling Agent or
Purchasing Agent, as the case may be, of its acceptance or
rejection of an offer to purchase Book-Entry Securities. If the
Company accepts an offer to purchase Book-Entry Securities, it
will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and Chase.
Communication of Book-Entry Information to the Company by Selling
-----------------------------------------------------------------
Agent and Settlement Procedures:
-------------------------------
A. After the acceptance of an offer by the Company,
the Selling Agent or Purchasing Agent, as the case may be, will
communicate promptly, but in no event later than the time set
forth below under "Settlement Procedure Timetable", the following
details of the terms of such offer (the "Book-Entry Information")
to the Company by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means:
(1) Whether the Security is a Certificated Security or
a Book-Entry Security;
(2) Principal amount of Book-Entry Securities to be
purchased;
(3) Interest rate, interest payment dates, including
without limitation all necessary information with
respect to Floating Rate Notes, and initial
interest payment date;
(4) Stated Maturity Date;
(5) Issue Price;
(6) Selling Agent's commission or Purchasing Agent's
discount or commission, as the case may be;
(7) Net proceeds to the Company;
(8) Settlement Date (Original Issue Date);
(9) If a redeemable Book-Entry Security, such of the
following as are applicable:
(a) Initial Redemption Date;
(b) Initial Redemption Price (% of par);
(c) Amount (% of par) that the Redemption Price
shall decline (but not below par) ("Reduction
Percentage") and the dates on which such
Redemption Price shall decline after the
Initial Redemption Date; and
(d) Redemption Limitation Date.
(10) Exact name in which the Book-Entry Security is to
be registered, if other than Cede & Co.;
(11) Denomination of certificates to be delivered at
Settlement; and
(12) All other information necessary to complete the
form of Security prior to its authentication and
delivery.
B. The Company will advise Chase by Company Order in
writing or by facsimile or electronic transmission of the
information set forth in Settlement Procedure "A" above, and the
name of such Agent. Chase will assign a CUSIP number to the
Global Security representing such Book-Entry Security and will
notify the Company by telephone of such CUSIP number as soon as
practicable.
C. Chase will enter a pending deposit message through
DTC's Participant Terminal System, providing the following
settlement information to DTC's Underwriting Department, such
Agent and Standard & Poor's Corporation:
(1) The applicable Book-Entry Information set forth in
Settlement Procedure A;
(2) Identification numbers of the participant accounts
maintained by DTC on behalf of Chase or the Agent,
as the case may be;
(3) Identification as a Book-Entry Security;
(4) Initial Interest Payment Date for such Book-Entry
Security and amount of interest payable on such
Interest Payment Date;
(5) CUSIP number of the Global Security representing
such Book-Entry Security; and
(6) Whether such Global Security will represent any
other Book-Entry Security (to the extent known at
such time).
D. The Trustee will complete and authenticate the
Global Security representing such Security, the form of which was
previously approved by the Company, the Agents and the Trustee.
E. DTC will credit such Book-Entry Security to
Chase's participant account at DTC.
F. Chase will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to (i) debit
such Book-Entry Security to Chase's participant account and
credit such Book-Entry Security to such Agent's participant
account and (ii) debit such Agent's settlement account and credit
Chase's settlement account for an amount equal to the price of
such Book-Entry Security less such Agent's commission. The entry
of such a deliver order shall constitute a representation and
warranty by Chase to DTC that (a) the Global Security
representing such Book-Entry Security has been issued and
authenticated and (b) Chase is holding such Global Security
pursuant to the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order
through DTC's Participant Terminal System instructing DTC (i) to
debit such Book-Entry Security to such Agent's participant
account and credit such Book-Entry Security to the participant
accounts of the Participants with respect to such Book-Entry
Security and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of such Agent for
an amount equal to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures F and G will be settled
in accordance with SDFS operating procedures in effect on the
Settlement Date.
I. Upon confirmation of receipt of funds, Chase will
transfer to a bank account designated by the Company, in
immediately available funds, the amount transferred to Chase in
accordance with Settlement Procedure F.
J. Upon request, Chase will send to the Company a
statement setting forth the principal amount of Book-Entry
Securities outstanding as of that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-
Entry Security to the purchaser either by transmitting to the
Participants with respect to such Book-Entry Security a
confirmation order or orders through DTC's institutional delivery
system or by mailing a written confirmation to such purchaser.
DTC will, upon request of the Company or Chase,
promptly furnish to the Company or Chase a list of the names and
addresses of the participants for whom DTC has credited Book-
Entry Securities.
Preparation of Pricing Supplement by Company:
--------------------------------------------
If the Company accepts an offer to purchase a Book-
Entry Security, it will prepare a Pricing Supplement. The
Company will arrange to have the Pricing Supplements filed with
the Commission not later than the close of business of the
Commission on the third Business Day following the date on which
such Pricing Supplement is first used or will arrange for such
Pricing Supplement to be transmitted to the Commission by a means
reasonably calculated to result in filing by such time and will
supply at least ten copies of such Pricing Supplement to the
Selling Agent or Purchasing Agent, as the case may be. In
addition, the Company will file as required copies of the Pricing
Supplement with the applicable state regulatory authorities
concurrently with the filing of the Pricing Supplement with the
Commission.
Delivery of Confirmation and Prospectus to Purchaser by Selling
---------------------------------------------------------------
Agent:
-----
The Selling Agent will deliver to the purchaser of a
Book-Entry Security a written confirmation of the sale and
delivery and payment instructions. In addition, the Selling
Agent will deliver to such purchaser or its agent the Prospectus
as amended or supplemented (including the Pricing Supplement)
relating to such Book-Entry Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a)
the confirmation of sale or (b) the Book-Entry Security.
Date of Settlement:
------------------
The receipt by the Company of immediately available
funds in payment for a Book-Entry Security shall constitute
"Settlement" with respect to such Book-Entry Security. All
orders accepted by the Company will be settled on a date (the
"Settlement Date") which is the third Business Day after the date
of acceptance of such offer, unless the Company and the purchaser
agree to settlement on any other Business Day after the
acceptance of such offer in each case pursuant to the Settlement
Procedures Timetable set forth below.
Settlement Procedures Timetable:
-------------------------------
For orders of Book-Entry Securities solicited by a
Selling Agent and accepted by the Company for Settlement on the
first Business Day after the sale date, Settlement Procedures A
through J set forth above shall be completed as soon as possible
but not later than the respective times (New York City time) set
forth below:
Settlement
Procedure Time
----------- ----
A-B 11 AM on the sale date
C 2 PM on the sale date
D 9 AM on the Settlement Date
E 10 AM on the Settlement Date
F 2 PM on the Settlement Date
G 4:45 PM on the Settlement Date
H-J 5 PM on the Settlement Date
If a sale is to be settled more than one Business Day
after the sale date, (i) Settlement Procedure A shall be
completed by 5 PM on the Business Day following the sale date or
11 AM on the Business Day prior to the Settlement Date, whichever
is earlier, and (ii) Settlement Procedures B and C shall be
completed as soon as practicable but no later than 2 PM on the
Business Day prior to the Settlement Date.
Settlement Procedure H is subject to extension in
accordance with any extension of Fedwire closing deadlines and in
other events specified in SDFS operating procedure in effect on
the Settlement Date.
If Settlement of a Book-Entry Security is rescheduled
or canceled, the Company will instruct Chase to deliver to DTC a
PTS cancellation message to such effect by no later than 12 Noon
and on the Business Day immediately preceding the scheduled
Settlement Date and Chase will enter such order by 2 PM on such
Business Day through DTC's Participation Terminal System.
The Company will, as soon as practicable after the
trade date for a Global Security (but no later than the dates and
times, if any, specified in the Indenture), cause to be delivered
to the Trustee an executed original of the Company Order for such
Global Security as well as all other documents required to be
delivered under the Indenture in connection with the issuance of
such Global Security, unless already delivered.
Failure to Settle
-----------------
If Chase has not entered an SDFS deliver order with
respect to a Book-Entry Security pursuant to Settlement Procedure
F, the Company may instruct Chase to deliver to DTC, through
DTC's Participant Terminal System, as soon as practicable, a
withdrawal message instructing DTC to debit such Book-Entry
Security to Chase's participant account. DTC will process the
withdrawal message, provided that Chase's participant account
contains a principal amount of the Global Security representing
such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with
respect to all the Book-Entry Securities represented by a Global
Security, Chase will mark such Global Security "canceled", make
appropriate entries in Chase's records and send such canceled
Global Security to the Company. The CUSIP number assigned to
such Global Note shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a
withdrawal message is processed with respect to less than the
entire principal amount of the Book-Entry Securities represented
by a Global Security, Chase will exchange such Global Security
for two Global Securities, one of which shall represent the Book-
Entry Security or Securities for which a withdrawal message has
been processed and shall be canceled immediately after issuance
and the other of which shall represent the Book-Entry Security
previously represented by the surrendered Global Security with
respect to which a withdrawal message has not been processed and
shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is
not timely paid to the Participants with respect to such Book-
Entry Security by the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting on behalf of
such purchaser), such Participants and, in turn, the Agent for
such Book-Entry Security may enter SDFS deliver orders through
DTC's Participant Terminal System debiting such Book-Entry
Security to such Participant's account and crediting such Book-
Entry Security to such Agent's participant account and then
debiting such Book-Entry Security to such Agent's participant
account and crediting such Book-Entry Security to Chase's
participant account, and shall notify the Company and Chase
thereof. Thereafter, Chase will (i) immediately notify the
Company of such order, once Chase has confirmed that such Book-
Entry Security has been credited to its participant account, and
the Company shall transfer to such Agent funds available for
immediate use in an amount equal to the price of such Book-Entry
Security which was previously credited to the account of the
Company in accordance with Settlement Procedure I, and (ii)
deliver the withdrawal message and take the related actions
described in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the Agent in the
performance of its obligations hereunder or under the
Distribution Agreement, the Company will reimburse the Agent on
an equitable basis for its loss of the use of funds during the
period when they were credited to the account of the Company;
provided, however, that the Selling Agent shall be entitled to no
reimbursement hereunder if funds are returned on the day on which
such funds had been previously credited to the account of the
Company such that the Selling Agent is afforded a reasonable
opportunity to invest such funds at an overnight rate on such
day; and provided further that if the Selling Agent is denied the
use of such funds due to its failure to return the relevant
Security to the Trustee in a timely manner it shall only be
entitled to reimbursement hereunder in an amount equal to the
amount that would have been earned on such funds had such funds
been on deposit at an overnight rate during the period between
their credit to the account of the Company and their
reimbursement to the Agent.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Security, DTC may take any
actions in accordance with its SDFS operating procedures then in
effect. In the event of a failure to settle with respect to one
or more, but not all, of the Book-Entry Securities to have been
represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedure D for the authentication and
issuance of a Global Security representing the other Book-Entry
Securities to have been represented by such Global Security and
will make appropriate entries in its records.
Exhibit 4(a)
-----------------------------------------------------------------------
THE WASHINGTON WATER POWER COMPANY
TO
THE CHASE MANHATTAN BANK,
Trustee
---------------
Indenture
Dated as of April 1, 1998
---------------
-----------------------------------------------------------------------
<PAGE>
THE WASHINGTON WATER POWER COMPANY
Reconciliation and Tie between Trust Indenture Act of
1939 and Indenture, dated as of April 1, 1998
Trust Indenture Act Section Indenture Section(s)
ss.310(a)(1) .......................................... 809
(a)(3) .......................................... Not Applicable
(a)(4) .......................................... Not Applicable
(b) .......................................... 808, 810
ss.311(a) .......................................... 813
(b) .......................................... 813
(c) .......................................... 813
ss.312(a) ............................................901
(b) .......................................... 901
(c) .......................................... 901
ss.313(a) ............................................902
(b) .......................................... 902
(c) .......................................... 902
(d) .......................................... 902
ss.314(a) ............................................902, 507
(b) .......................................... Not Applicable
(c)(1) .......................................... 102
(c)(2) .......................................... 102
(c)(3) .......................................... Not Applicable
(d) .......................................... Not Applicable
(e) .......................................... 102
ss.315(a) ........................................... 801, 803
(b) .......................................... 802
(c) .......................................... 801
(d) .......................................... 801
(e) .......................................... 714
ss.316(a) .......................................... 712, 713
(a)(1)(A) .......................................... 702, 712
(a)(1)(B) .......................................... 713
(a)(2) .......................................... Not Applicable
(b) .......................................... 708
(c) .......................................... 104
ss.317(a)(1) ............................................703
(a)(2) .......................................... 705
(b) .......................................... 503
ss.318(a) ............................................107
<PAGE>
TABLE OF CONTENTS
Page
Recital of the Company.................................................. 1
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. General Definitions............................... 1
Act .............................................. 2
Affiliate.............................................. 2
Authenticating Agent................................... 2
Authorized Officer..................................... 2
Board of Directors..................................... 2
Board Resolution....................................... 2
Business Day........................................... 2
Commission............................................. 3
Company .............................................. 3
Company Order or Company Request....................... 3
Corporate Trust Office................................. 3
corporation............................................ 3
Discount Security...................................... 3
Interest .............................................. 3
Dollar or $............................................ 3
Eligible Obligations................................... 3
Event of Default....................................... 4
Fair Value............................................. 4
Governmental Authority................................. 4
Government Obligations................................. 4
Holder .............................................. 4
Indenture.............................................. 4
Independent Expert's Certificate....................... 4
Interest Payment Date.................................. 4
Maturity .............................................. 4
Notice of Default...................................... 5
Officer's Certificate.................................. 5
Opinion of Counsel..................................... 5
Outstanding............................................ 5
Paying Agent........................................... 6
Periodic Offering...................................... 6
Person .............................................. 6
Place of Payment....................................... 6
Predecessor Security................................... 6
<PAGE>
-ii-
Page
Redemption Date........................................ 7
Redemption Price....................................... 7
Regular Record Date.................................... 7
Required Currency...................................... 7
Responsible Officer.................................... 7
Securities............................................. 7
Security Register...................................... 7
Security Registrar..................................... 7
Special Record Date.................................... 7
Stated Interest Rate................................... 7
Stated Maturity........................................ 7
Successor.............................................. 7
Tranche .............................................. 7
Trust Indenture Act.................................... 8
Trustee .............................................. 8
United States.......................................... 8
Unpaid Interest........................................ 8
SECTION 102. Compliance Certificates and Opinions.............. 8
SECTION 103. Content and Form of Documents Delivered to Trustee 9
SECTION 104. Acts of Holders.................................... 10
SECTION 105. Notices, Etc. to Trustee and Company............... 12
SECTION 106. Notice to Holders of Securities; Waiver............ 12
SECTION 107. Conflict with Trust Indenture Act.................. 13
SECTION 108. Effect of Headings and Table of Contents........... 13
SECTION 109. Successors and Assigns............................. 13
SECTION 110. Separability Clause................................ 13
SECTION 111. Benefits of Indenture.............................. 14
SECTION 112. Governing Law...................................... 14
SECTION 113. Legal Holidays..................................... 14
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.................................... 14
SECTION 202. Form of Trustee's Certificate of Authentication.... 15
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series............... 15
<PAGE>
-iii-
Page
SECTION 302. Denominations....................................... 19
SECTION 303. Execution, Dating, Certificate of Authentication.... 19
SECTION 304. Temporary Securities................................ 22
SECTION 305. Registration, Registration of Transfer and Exchange. 23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.... 24
SECTION 307. Payment of Interest; Interest Rights Preserved...... 25
SECTION 308. Persons Deemed Owners............................... 26
SECTION 309. Cancellation by Security Registrar.................. 26
SECTION 310. Computation of Interest............................. 27
SECTION 311. Payment to Be in Proper Currency.................... 27
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article............................ 27
SECTION 402. Election to Redeem; Notice to Trustee............... 27
SECTION 403. Selection of Securities to Be Redeemed.............. 28
SECTION 404. Notice of Redemption................................ 28
SECTION 405. Securities Payable on Redemption Date............... 30
SECTION 406. Securities Redeemed in Part......................... 30
ARTICLE FIVE
Covenants
SECTION 501. Payment of Securities............................... 30
SECTION 502. Maintenance of Office or Agency..................... 30
SECTION 503. Money for Securities Payments to Be Held in Trust... 31
SECTION 504. Corporate Existence................................. 33
SECTION 505. Maintenance of Properties........................... 33
SECTION 506. Waiver of Certain Covenants......................... 33
SECTION 507. Annual Officer's Certificate as to Compliance....... 34
ARTICLE SIX
Satisfaction and Discharge
SECTION 601. Satisfaction and Discharge of Securities............ 34
SECTION 602. Satisfaction and Discharge of Indenture............. 36
SECTION 603. Application of Trust Money.......................... 37
<PAGE>
-iv-
ARTICLE SEVEN
Events of Default; Remedies
SECTION 701. Events of Default................................... 38
SECTION 702. Acceleration of Maturity; Rescission and Annulment.. 40
SECTION 703. Collection of Indebtedness and Suits for Enforcement
by Trustee.......................................... 41
SECTION 704. Application of Money Collected...................... 41
SECTION 705. Trustee May File Proofs of Claim.................... 42
SECTION 706. Trustee May Enforce Claims without Possession of
Securities.......................................... 43
SECTION 707. Limitation on Suits................................. 43
SECTION 708. Unconditional Right of Holders to Receive Principal,
Premium and Interest....... 44
SECTION 709. Restoration of Rights and Remedies.................. 44
SECTION 710. Rights and Remedies Cumulative...................... 44
SECTION 711. Delay or Omission Not Waiver........................ 44
SECTION 712. Control by Holders of Securities.................... 45
SECTION 713. Waiver of Past Defaults............................. 45
SECTION 714. Undertaking for Costs............................... 45
SECTION 715. Waiver of Stay or Extension Laws.................... 46
ARTICLE EIGHT
The Trustee
SECTION 801. Certain Duties and Responsibilities................. 46
SECTION 802. Notice of Defaults.................................. 47
SECTION 803. Certain Rights of Trustee........................... 48
SECTION 804. Not Responsible for Recitals or Issuance of
Securities.......................................... 49
SECTION 805. May Hold Securities................................. 49
SECTION 806. Money Held in Trust................................. 49
SECTION 807. Compensation and Reimbursement...................... 50
SECTION 808. Disqualification; Conflicting Interests............. 50
SECTION 809. Corporate Trustee Required; Eligibility............. 51
SECTION 810. Resignation and Removal; Appointment of Successor... 51
SECTION 811. Acceptance of Appointment by Successor.............. 53
SECTION 812. Merger, Conversion, Consolidation or Succession to
Business............................................ 54
SECTION 813. Preferential Collection of Claims against Company... 54
SECTION 814. Appointment of Authenticating Agent................. 55
<PAGE>
-v-
Page
ARTICLE NINE
Lists of Holders; Reports by Trustee and Company
SECTION 901. Lists of Holders.................................... 57
SECTION 902. Reports by Trustee and Company...................... 57
ARTICLE TEN
Consolidation, Merger, Conveyance
or Other Transfer
SECTION 1001. Company may Consolidate, etc., Only on Certain
Terms............................................. 58
SECTION 1002. Successor Substituted.............................. 59
SECTION 1003. Release of Company upon Conveyance or Other
Transfer........................................... 59
SECTION 1004. Merger into Company................................ 59
SECTION 1005. Transfer of Less than the Entirety................. 59
ARTICLE ELEVEN
Supplemental Indentures
SECTION 1101. Supplemental Indentures without Consent of Holders. 62
SECTION 1102. Supplemental Indentures with Consent of Holders.... 64
SECTION 1103. Execution of Supplemental Indentures............... 65
SECTION 1104. Effect of Supplemental Indentures.................. 66
SECTION 1105. Conformity with Trust Indenture Act................ 66
SECTION 1106. Reference in Securities to Supplemental Indentures. 66
SECTION 1107. Modification without Supplemental Indenture........ 66
ARTICLE TWELVE
Meetings of Holders; Action without Meeting
SECTION 1201. Purposes for Which Meetings May Be Called.......... 67
SECTION 1202. Call, Notice and Place of Meetings................. 67
SECTION 1203. Persons Entitled to Vote at Meetings............... 68
SECTION 1204. Quorum; Action..................................... 68
SECTION 1205. Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings........ 69
SECTION 1206. Counting Votes and Recording Action of Meetings.... 70
SECTION 1207. Action without Meeting............................. 70
<PAGE>
-vi-
Page
ARTICLE THIRTEEN
Immunity of Incorporators, Stockholders, Officers
and Directors
SECTION 1301. Liability Solely Corporate......................... 71
Signatures.........................................................72
<PAGE>
SECTION 101
INDENTURE, dated as of April 1, 1998 between THE WASHINGTON WATER POWER
COMPANY, a corporation organized and existing under the laws of the State of
Washington (hereinafter sometimes called the "Company"), and The Chase Manhattan
Bank, a New York banking corporation, trustee (hereinafter sometimes called the
"Trustee").
Recitals of the Company
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of unsecured debentures,
notes or other evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as contemplated herein; all acts necessary to make
this Indenture a valid agreement of the Company have been performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH that, in consideration of the
premises and of the purchase of the Securities by the Holders thereof, it is
hereby covenanted and agreed by and between the Company and the Trustee that all
the Securities are to be authenticated and delivered subject to the further
covenants, conditions and trusts hereinafter set forth, and the Company hereby
covenants and agrees to and with the Trustee, for the equal and ratable benefit
of all Holders of the Securities or of series thereof (except as otherwise
contemplated herein), as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. General Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all terms used herein without definition which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all terms used herein without definition which are defined in the
Uniform Commercial Code as in effect in any jurisdiction in which any
property of the Company is located shall have the meanings assigned to them
therein with respect to such property;
(d) all accounting terms not
otherwise defined herein have the meanings assigned to them in accordance
with generally accepted accounting principles in the United States; and,
except as otherwise herein expressly
<PAGE>
-2-
SECTION 101
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States at the
date of such computation or, at the election of the Company from time to
time, at the date of the execution and delivery of this Indenture;
provided, however, that in determining generally accepted accounting
principles applicable to the Company, effect shall be given, to the extent
required, to any order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having jurisdiction over
the Company; and
(e) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct generally the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee to act on
behalf of the Trustee to authenticate the Securities of one or more series.
"Authorized Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant Treasurer or the
Corporate Secretary or any other duly authorized officer, agent or
attorney-in-fact of the Company named in an Officer's Certificate signed by any
of such corporate officers.
"Board of Directors" means either the board of directors of the
Company or any committee thereof duly authorized to act in respect of matters
relating to this Indenture.
"Board Resolution" means a copy of a resolution certified by
the Corporate Secretary or an Assistant Corporate Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to a Place of Payment
or any other particular location specified in the Securities or this Indenture,
means any day, other than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in such
<PAGE>
-3-
Place of Payment or other location are generally authorized or required by law,
regulation or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the date of the execution and
delivery of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body, if any,
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Order" or "Company Request" means a written request
or order signed in the name of the Company by an Authorized Officer and
delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of the execution and delivery of this
Indenture is located at 450 West 33rd Street, New York, New York 10001.
"corporation" means a corporation, association, company, joint
stock company or business trust.
"Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 702.
"Interest" with respect to a Discount Security means interest, if any, borne by
such Security at a Stated Interest Rate.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a
currency other than Dollars or in a composite currency, such
other obligations or instruments as shall be specified with
respect to such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 701.
<PAGE>
-4-
SECTION 101
"Fair Value" has the meaning specified in Section 1005.
"Governmental Authority" means the government of the United
States or of any State or Territory thereof or of the District of Columbia or of
any county, municipality or other political subdivision of any thereof, or any
department, agency, authority or other instrumentality of any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally
guaranteed by, the United States entitled to the benefit of
the full faith and credit thereof; and
(b) certificates, depositary receipts or other
instruments which evidence a direct ownership interest in
obligations described in clause (a) above or in any specific
interest or principal payments due in respect thereof;
provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or
trust company (which may include the Trustee or any Paying
Agent) subject to Federal or State supervision or examination
with a combined capital and surplus of at least Fifty Million
Dollars ($50,000,000); and provided, further, that except as
may be otherwise required by law, such custodian shall be
obligated to pay to the holders of such certificates,
depositary receipts or other instruments the full amount
received by such custodian in respect of such obligations or
specific payments and shall not be permitted to make any
deduction therefrom.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and
delivered and as it may from time to time be amended and/or supplemented by one
or more indentures or other instruments supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities established as contemplated by Section 301.
"Independent Expert's Certificate" has the meaning specified in
Section 1005.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as provided in such Security or in this Indenture,
whether at the Stated Maturity, by declaration of acceleration, upon call for
redemption or otherwise.
<PAGE>
-5-
SECTION 101
"Notice of Default" has the meaning specified in Section 701.
"Officer's Certificate" means a certificate signed by an Authorized
Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or other counsel acceptable to the Trustee and
who may be an employee or Affiliate of the Company.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled or delivered to the
Trustee for cancellation;
(b) Securities deemed to have been paid for all
purposes of this Indenture in accordance with Section 601
(whether or not the Company's indebtedness in respect
thereof shall be satisfied and discharged for any other
purpose); and
(c) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser or purchasers in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given or made any
request, demand, authorization, direction, notice, consent or waiver hereunder
or whether or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company
or of such other obligor (unless the Company, such obligor
or such Affiliate owns all Securities Outstanding under this
Indenture, or all Outstanding Securities of each such series
and each such Tranche, as the case may be, determined
without regard to this clause (x)) shall be disregarded and
deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded; provided,
however, that Securities so owned which have been pledged in
good faith may be regarded as Outstanding if it is
<PAGE>
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SECTION 101
established to the reasonable satisfaction of the Trustee that
the pledgee, and not the Company, any such other obligor or
Affiliate of either thereof, has the right so to act with
respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor; and
(y) the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purposes shall be
the amount of the principal thereof that would be due and
payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 702; and
provided, further, that, in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Security that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount thereof less
the aggregate amount of principal thereof theretofore paid.
"Paying Agent" means any Person, including the Company,
authorized by the Company to pay the principal of and premium, if any, or
interest, if any, on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time any or all of the specific terms of which Securities,
including without limitation the rate or rates of interest, if any, thereon, the
Stated Maturity or Maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents from
time to time subsequent to the initial request for the authentication and
delivery of such Securities by the Trustee, all as contemplated in Section 301
and clause (b) of Section 303.
"Person" means any individual, corporation, partnership,
limited liability partnership, limited liability company, joint venture, trust
or unincorporated organization or any Governmental Authority.
"Place of Payment", when used with respect to the Securities
of any series, or any Tranche thereof, means the place or places, specified as
contemplated by Section 301, at which, subject to Section 502, principal of and
premium, if any, and interest, if any, on the Securities of such series or
Tranche are payable.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed (to the
extent lawful) to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
<PAGE>
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"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Securities" means any bonds, notes and other evidences of
indebtedness authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Unpaid Interest
on the Securities of any series means a date fixed by the Trustee pursuant to
Section 307.
"Stated Interest Rate" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear simple interest.
Any calculation or other determination to be made under this Indenture by
reference to the Stated Interest Rate on an obligation shall be made (a) if the
Company's obligations in respect of any other indebtedness shall be evidenced or
secured in whole or in part by such obligation, by reference to the lower of the
Stated Interest Rate on such obligation and the Stated Interest Rate on such
other indebtedness and (b) without regard to the effective interest cost to the
Company of such obligation or of any such other indebtedness.
"Stated Maturity", when used with respect to any obligation or
any installment of principal thereof or interest thereon, means the date on
which the principal of such obligation or such installment of principal or
interest is stated to be due and payable (without regard to any provisions for
redemption, prepayment, acceleration, purchase or extension).
"Successor" has the meaning set forth in Section 1001.
"Tranche" means a group of Securities which (a) are of the
same series and (b) have identical terms except as to principal amount and/or
date of issuance.
<PAGE>
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SECTION 102
"Trust Indenture Act" means, as of any time, the Trust
Indenture Act of 1939, or any successor statute, as in effect at such time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and, if at any time there is more
than one Person acting as trustee hereunder, "Trustee" shall mean each such
Person so acting.
"United States" means the United States of America, its
Territories, its possessions and other areas subject to its political
jurisdiction.
"Unpaid Interest" has the meaning specified in Section 307.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, it being understood that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, such individual has made such examination or
investigation as is necessary to enable such individual to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
-9-
SECTION 103. Content and Form of Documents Delivered to Trustee.
(a) Any Officer's Certificate may be based (without further
examination or investigation), insofar as it relates to or is dependent upon
legal matters, upon an opinion of, or representations by, counsel, unless, in
any case, such officer has actual knowledge that the certificate or opinion or
representations with respect to the matters upon which such Officer's
Certificate may be based as aforesaid are erroneous.
Any Opinion of Counsel may be based (without further
examination or investigation), insofar as it relates to or is dependent upon
factual matters, information with respect to which is in the possession of the
Company, upon a certificate of, or representations by, an officer or officers of
the Company, unless such counsel has actual knowledge that the certificate or
opinion or representations with respect to the matters upon which his opinion
may be based as aforesaid are erroneous. In addition, any Opinion of Counsel may
be based (without further examination or investigation), insofar as it relates
to or is dependent upon matters covered in an Opinion of Counsel rendered by
other counsel, upon such other Opinion of Counsel, unless such counsel has
actual knowledge that the Opinion of Counsel rendered by such other counsel with
respect to the matters upon which his Opinion of Counsel may be based as
aforesaid are erroneous. If, in order to render any Opinion of Counsel provided
for herein, the signer thereof shall deem it necessary that additional facts or
matters be stated in any Officer's Certificate provided for herein, then such
certificate may state all such additional facts or matters as the signer of such
Opinion of Counsel may request.
(b) In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents. Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(c) Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates of
the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the action
so taken shall
<PAGE>
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SECTION 104
not be invalidated or otherwise rendered ineffective but shall be and remain in
full force and effect, except to the extent that such action was a result of
willful misconduct or bad faith. Without limiting the generality of the
foregoing, any Securities issued under the authority of such defective document
or instrument shall nevertheless be the valid obligations of the Company
entitled to the benefits provided by this Indenture equally and ratably with all
other Outstanding Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Indenture to be made,
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing or, alternatively, may be embodied in and
evidenced by the record of Holders voting in favor thereof, either in person or
by proxies duly appointed in writing, at any meeting of Holders duly called and
held in accordance with the provisions of Article Twelve, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 801) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section. The record of any meeting of Holders shall be
proved in the manner provided in Section 1206.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The ownership of Securities, the principal amount (except
as otherwise contemplated in clause (y) of the first proviso to the definition
of Outstanding) and serial numbers of Securities held by any Person, and the
date of holding the same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or
<PAGE>
-11-
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of principal
amount of Securities for the action contemplated by such instruments, any such
instrument executed and delivered by or on behalf of a Holder may be revoked
with respect to any or all of such Securities by written notice by such Holder
or any subsequent Holder, proven in the manner in which such instrument was
proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any action
taken by such Act of Holders. If the Company shall so determine, new Securities
of any series, or any Tranche thereof, so modified as to conform, in the opinion
of the Trustee and the Company, to such action may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
(g) The Company may, at its option, by Company Order, fix in
advance a record date for the determination of Holders entitled to give any
request, demand, authorization, direction, notice, consent, waiver or other Act
solicited by the Company, but the Company shall have no obligation to do so;
provided, however, that the Company may not fix a record date for the giving or
making of any notice, declaration, request or direction referred to in the next
sentence. In addition, the Trustee may, at its option, fix in advance a record
date for the determination of Holders of Securities of any series entitled to
join in the giving or making of any Notice of Default, any declaration of
acceleration referred to in Section 702, any request to institute proceedings
referred to in Section 707 or any direction referred to in Section 712, in each
case with respect to Securities of such series. If any such record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act, or such notice, declaration, request or direction, may be given
before or after such record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining (i) whether Holders of the requisite proportion of the Outstanding
Securities have authorized or agreed or consented to such Act (and for that
purpose the Outstanding Securities shall be computed as of the record date)
and/or (ii) which Holders may revoke any such Act (notwithstanding subsection
(e) of this Section); and any such Act, given as aforesaid, shall be effective
whether or not the Holders which authorized or agreed or consented to such Act
remain Holders after such record date and whether or not the Securities held by
such Holders remain Outstanding after such record date.
<PAGE>
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SECTION 105
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with, the
Trustee by any Holder or by the Company, or the Company by the Trustee or by
any Holder, shall be sufficient for every purpose hereunder (unless otherwise
expressly provided herein) if the same shall be in writing and delivered
personally to an officer or other responsible employee of the addressee, or
transmitted by facsimile transmission, telex or other direct written electronic
means to such telephone number or other electronic communications address set
forth opposite such parties name below or as the parties hereto shall from time
to time designate, or transmitted by registered mail, charges prepaid, to the
applicable address set opposite such party's name below or to such other address
as either party hereto may from time to time designate:
If to the Trustee, to:
The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, New York 10001
Attention: Global Trust Services
Telephone: (212) 270-6000
Facsimile: (212) 946-8158
If to the Company, to:
The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Telephone: (509) 489-0500
Facsimile: (509) 482-4879
Any communication contemplated herein shall be deemed to have been made,
given, furnished and filed if personally delivered, on the date of delivery, if
transmitted by facsimile transmission, telex or other direct written electronic
means, on the date of transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given, and shall be deemed given, to Holders if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
<PAGE>
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In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be waived in writing
by the Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or deemed to be
included in this Indenture by, or is otherwise governed by, any provision of the
Trust Indenture Act, such other provision shall control; and if any provision
hereof otherwise conflicts with the Trust Indenture Act, the Trust Indenture Act
shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or the Securities
shall be held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
-14-
SECTION 111
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the law of the State of New York (including without
limitation Section 5-1401 of the New York General Obligations Law or any
successor to such statute), except to the extent that the Trust Indenture Act
shall be applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities other than a contrary provision in the Securities of any series, or
any Tranche thereof, or in the indenture supplemental hereto, Board Resolution
or Officer's Certificate which establishes the terms of the Securities of such
series or Tranche) payment of interest or principal and premium, if any, need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, and, if such payment is made or duly provided for on such Business
Day, no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, to such Business Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall be in
substantially the form or forms established in the Officer's Certificate, the
indenture supplemental hereto or the Board Resolution establishing such series,
in any case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form or forms of Securities of any series are established in
a Board Resolution or in an Officer's Certificate, such Board Resolution and
Officer's
<PAGE>
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SECTION 202
Certificate, if any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities.
The Securities of each series shall be issuable in registered
form without coupons. The definitive Securities shall be produced in such manner
as shall be determined by the officers executing such Securities, as evidenced
by their execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
---------------------------------
as Trustee
By: _____________________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Subject to
the last paragraph of this Section, prior to the authentication and delivery of
Securities of any series there shall be established by specification in an
Officer's Certificate, a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all
other series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of such series
pursuant to Section
<PAGE>
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SECTION 301
304, 305, 306, 406 or 1106 and except for any Securities
which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) the Persons (without specific identification) to whom
interest, if any, on Securities of such series, or any Tranche
thereof, shall be payable, if other than the Persons in whose
names such Securities (or one or more Predecessor Securities) are
registered at the close of business on the Regular Record Date
for such interest;
(d) the date or dates on which the principal of the
Securities of such series, or any Tranche thereof, is payable or
any formulary or other method or other means by which such date
or dates shall be determined, by reference to an index or other
fact or event ascertainable outside of this Indenture or
otherwise (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension); and the right,
if any, to extend the Maturity of the Securities of such series,
or any Tranche thereof, and the duration of any such extension;
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal shall
bear interest, if different from the rate or rates at which such
Securities shall bear interest prior to Maturity, and, if
applicable, the rate or rates at which overdue premium or
interest shall bear interest, if any), or any formulary or other
method or other means by which such rate or rates shall be
determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise; the date or
dates from which such interest shall accrue; the Interest Payment
Dates on which such interest shall be payable and the Regular
Record Date, if any, for the interest payable on such Securities
on any Interest Payment Date; the basis of computation of
interest, if other than as provided in Section 310; and the
right, if any, to extend the interest payment periods and the
duration of any such extension;
(f) the place or places at which and/or the methods (if
other than as provided elsewhere in this Indenture) by which (i)
the principal of and premium, if any, and interest, if any, on
Securities of such series, or any Tranche thereof, shall be
payable, (ii) registration of transfer of Securities of such
series, or any Tranche thereof, may be effected, (iii) exchanges
of Securities of such series, or any Tranche thereof, may be
effected and (iv) notices and demands to or upon the Company in
respect of the Securities of such series, or any Tranche thereof,
and this Indenture may be served; the Security Registrar and any
Paying Agent or Agents for such series or Tranche; and, if such
is the case, that the principal of such Securities shall be
payable without the presentment or surrender thereof;
<PAGE>
-17-
(g) the period or periods within which or the date or dates
on which, the price or prices at which and the terms and
conditions upon which the Securities of such series, or any
Tranche thereof, may be redeemed, in whole or in part, at the
option of the Company;
(h) the obligation or obligations, if any, of the Company to
redeem or purchase the Securities of such series, or any Tranche
thereof, pursuant to any sinking fund or other mandatory
redemption provisions or at the option of a Holder thereof and
the period or periods within which or the date or dates on which,
the price or prices at which and the terms and conditions upon
which such Securities shall be redeemed or purchased, in whole or
in part, pursuant to such obligation, and applicable exceptions
to the requirements of Section 404 in the case of mandatory
redemption or redemption at the option of the Holder;
(i) the denominations in which Securities of such series, or
any Tranche thereof, shall be issuable if other than
denominations of One Thousand Dollars ($1,000) and any integral
multiple thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of or premium, if
any, or interest, if any, on the Securities of such series, or
any Tranche thereof, shall be payable (if other than in Dollars)
and the formulary or other method or other means by which the
equivalent of any such amount in Dollars is to be determined for
any purpose, including for the purpose of determining the
principal amount of such Securities deemed to be Outstanding at
any time;
(k) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof,
are to be payable, at the election of the Company or a Holder
thereof, in a coin or currency other than that in which the
Securities are stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may
be made;
(l) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof,
are to be payable, or are to be payable at the election of the
Company or a Holder thereof, in securities or other property, the
type and amount of such securities or other property, or the
formulary or other method or other means by which such amount
shall be determined, and the period or periods within which, and
the terms and conditions upon which, any such election may be
made;
(m) if the amount payable in respect of the principal of or
premium, if any, or interest, if any, on the Securities of such
series, or any Tranche thereof, may be determined with reference
to an index or other fact or event ascertainable
<PAGE>
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SECTION 301
outside of this Indenture, the manner in which such amounts
shall be determined (to the extent not established pursuant to
clause (e) of this paragraph);
(n) if other than the principal amount thereof, the portion
of the principal amount of Securities of such series, or any
Tranche thereof, which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 702;
(o) the terms, if any, pursuant to which the Securities of
such series, or any Tranche thereof, may be converted into or
exchanged for shares of capital stock or other securities of the
Company or any other Person;
(p) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the
Securities of such series, or any Tranche thereof, denominated in
a currency other than Dollars or in a composite currency, and any
additional or alternative provisions for the reinstatement of the
Company's indebtedness in respect of such Securities after the
satisfaction and discharge thereof as provided in Section 601;
(q) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any limitations on
the rights of the Holder or Holders of such Securities to
transfer or exchange the same or to obtain the registration of
transfer thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates therefor in
definitive form in lieu of temporary form and (iii) any and all
other matters incidental to such Securities;
(r) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and all
matters incidental thereto which are not specifically addressed
in a supplemental indenture as contemplated by clause (f) of
Section 1101;
(s) to the extent not established pursuant to clause (q) of
this paragraph, any limitations on the rights of the Holders of
the Securities of such Series, or any Tranche thereof, to
transfer or exchange such Securities or to obtain the
registration of transfer thereof; and if a service charge will be
made for the registration of transfer or exchange of Securities
of such series, or any Tranche thereof, the amount or terms
thereof;
(t) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of
such series, or any Tranche thereof; and
(u) any other terms of the Securities of such series, or any
Tranche thereof.
<PAGE>
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With respect to Securities of a series subject to a Periodic
Offering, the Officer's Certificate, the indenture supplemental hereto or the
Board Resolution which establishes such series, as the case may be, may provide
general terms or parameters for Securities of such series and provide either
that the specific terms of Securities of such series, or any Tranche thereof,
shall be specified in a Company Order or that such terms shall be determined by
the Company or its agents in accordance with procedures specified in a Company
Order as contemplated by clause (b) of Section 303.
Unless otherwise specified with respect to a series of
Securities pursuant to Section 301(b), any limit upon the aggregate principal
amount of a series of Securities may be increased without the consent of any
Holders and additional Securities of such series may be authenticated and
delivered up to the limit upon the aggregate principal amount authorized with
respect to such series as so increased.
Anything herein to the contrary notwithstanding, the Trustee
shall be under no obligation to authenticate and deliver Securities of any
series the terms of which, established as contemplated by this Section, would
affect the rights, duties, obligations, liabilities or immunities of the Trustee
under this Indenture or otherwise.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities of
each series shall be issuable in denominations of One Thousand Dollars ($1,000)
and any integral multiple thereof.
SECTION 303. Execution, Dating, Certificate of Authentication.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities
shall be executed on behalf of the Company by an Authorized Officer, and may
have the corporate seal of the Company affixed thereto or reproduced thereon and
attested by any other Authorized Officer. The signature of any or all of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such Securities.
<PAGE>
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SECTION 303
The Trustee shall authenticate and deliver Securities of a
series, for original issue, at one time or from time to time in accordance with
the Company Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or
forms and terms of such series, as provided in Sections 201 and
301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the terms of
such Securities shall not have been established in an Officer's
Certificate, an indenture supplemental hereto or a Board
Resolution, all as contemplated by Sections 201 and 301, either
(i) establishing such terms or (ii) in the case of Securities of
a series subject to a Periodic Offering, specifying procedures,
acceptable to the Trustee, by which such terms are to be
established (which procedures may provide for authentication and
delivery pursuant to oral or electronic instructions from the
Company or any agent or agents thereof, which oral instructions
are to be promptly confirmed electronically or in writing), in
either case in accordance with the instrument or instruments
delivered pursuant to clause (a) above;
(c) Securities of such series, executed on behalf of the
Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) when such Securities shall have been
authenticated and delivered by the Trustee and issued and
delivered by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, such
Securities will constitute valid obligations of the Company,
entitled to the benefits provided by this Indenture;
provided, however, that, with respect to Securities of a
series subject to a Periodic Offering, the Trustee shall be
entitled to receive such Opinion of Counsel only once at or
prior to the time of the first authentication and delivery of
such Securities (provided that such Opinion of Counsel
addresses the
<PAGE>
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authentication and delivery of all Securities of such series) and
that, in lieu of the opinions described in clauses (ii) and (iii)
above, Counsel may opine that:
(x) when the terms of such Securities shall have been
established pursuant to a Company Order or Orders or
pursuant to such procedures as may be specified from time to
time by a Company Order or Orders, all as contemplated by
and in accordance with the instrument or instruments
delivered pursuant to clause (a) above, such terms will have
been duly authorized by the Company and will have been
established in conformity with the provisions of this
Indenture; and
(y) when such Securities shall have been authenticated
and delivered by the Trustee in accordance with this
Indenture and the Company Order or Orders or the specified
procedures referred to in paragraph (x) above and issued and
delivered by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, such
Securities will constitute valid obligations of the Company,
entitled to the benefits provided by this Indenture.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the forms and terms thereof, the validity
thereof and the compliance of the authentication and delivery thereof with the
terms and conditions of this Indenture, upon the Opinion or Opinions of Counsel
and the certificates and other documents delivered pursuant to this Article at
or prior to the time of the first authentication and delivery of Securities of
such series until any of such opinions, certificates or other documents have
been superseded or revoked or expire by their terms. In connection with the
authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities do not violate any
applicable law or any applicable rule, regulation or order of any Governmental
Authority having jurisdiction over the Company.
If the form of terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an Officer's Certificate as
permitted by Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, each Security shall
be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, no Security shall
be entitled to any benefit under
<PAGE>
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SECTION 304
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee or an Authenticating Agent by manual
signature of an authorized officer thereof, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if (a) any Security
shall have been authenticated and delivered hereunder to the Company, or any
Person acting on its behalf, but shall never have been issued and sold by the
Company, (b) the Company shall deliver such Security to the Security Registrar
for cancellation or shall cancel such Security and deliver evidence of such
cancellation to the Trustee, in each case as provided in Section 309, and (c)
the Company, at its election, shall deliver to the Trustee a written statement
(which need not comply with Section 102 and need not be accompanied by an
Officer's Certificate or an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, then, for all purposes of this
Indenture, such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon Company Order
the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed, photocopied or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities; provided, however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or exchange provisions.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof, after the
preparation of definitive Securities of such series or Tranche, the temporary
Securities of such series or Tranche shall be exchangeable, without charge to
the Holder thereof, for definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or agency of the Company
maintained pursuant to Section 502 in a Place of Payment for such Securities.
Upon such surrender of temporary Securities, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and deliver in exchange
therefor definitive Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and Tranche and of like
tenor authenticated and delivered hereunder.
<PAGE>
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SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept in one of the offices
designated pursuant to Section 502, with respect to the Securities of each
series, or any Tranche thereof, a register (the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities of such series or Tranche and the
registration of transfer thereof. The Company shall designate one Person to
maintain the Security Register for the Securities of each series and such Person
is referred to herein, with respect to such series, as the "Security Registrar".
Anything herein to the contrary notwithstanding, the Company may designate one
or more of its offices as an office in which a register with respect to the
Securities of one or more series, or any Tranche or Tranches thereof, shall be
maintained, and the Company may designate itself the Security Registrar with
respect to one or more of such series. The Security Register shall be open for
inspection by the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof, upon
surrender for registration of transfer of any Security of such series or Tranche
at the office or agency of the Company maintained pursuant to Section 502 in a
Place of Payment for such series or Tranche, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof, any
Security of such series or Tranche may be exchanged at the option of the Holder,
for one or more new Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities delivered upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security surrendered for registration of transfer or for
exchange shall (if so required by the Company, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee or the Security
Registrar, as the case may be, duly executed by the Holder thereof or his
attorney duly authorized in writing.
<PAGE>
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SECTION 306
Unless otherwise specified as contemplated by Section 301 with
respect to Securities of any series, or any Tranche thereof, no service charge
shall be made for any registration of transfer or exchange of Securities, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
304, 406 or 1106 not involving any transfer.
The Company shall not be required to execute or to provide for
the registration of transfer of or the exchange of (a) Securities of any series,
or any Tranche thereof, during a period of fifteen (15) days immediately
preceding the date notice is to be given identifying the serial numbers of the
Securities of such series or Tranche called for redemption or (b) any Security
so selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and Tranche, and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the ownership of and the destruction, loss or
theft of any Security and (b) such security or indemnity as may be reasonably
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
is held by a Person purporting to be the owner of such Security, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and
Tranche, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, but subject to compliance with the
foregoing conditions, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone other than
the Holder of such new Security, and any such new Security shall be
<PAGE>
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entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, interest on any
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date,
including without limitation interest the payment period for which has been
extended as specified with respect to such series as contemplated by Section 301
(herein called "Unpaid Interest"), shall forthwith cease to be payable to the
Holder on the related Regular Record Date by virtue of having been such Holder,
and such Unpaid Interest may be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Unpaid
Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are
registered at the close of business on a date (herein called a
"Special Record Date") for the payment of such Unpaid Interest,
which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Unpaid Interest
proposed to be paid on each Security of such series and the date
of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Unpaid
Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
Persons entitled to such Unpaid Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Unpaid Interest which shall be not more
than thirty (30) days and not less than ten (10) days prior to
the date of the proposed payment and not less than twenty-five
(25) days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense
of the Company, shall, not less than fifteen (15) days prior to
such Special Record Date, cause notice of the proposed payment of
such Unpaid Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to
<PAGE>
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SECTION 308
each Holder of Securities of such series at the address of such
Holder as it appears in the Security Register. Notice of the
proposed payment of such Unpaid Interest and the Special Record
Date therefor having been so mailed, such Unpaid Interest shall
be paid to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date.
(b) The Company may make payment of any Unpaid Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. Persons Deemed Owners.
Prior to the due surrender of any Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Security is registered as the absolute
owner of such Security for the purpose of receiving payment of principal of and
premium, if any, and (subject to Section 307) interest, if any, on such Security
and for all other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person other
than the Security Registrar, be delivered to the Security Registrar and, if not
theretofore canceled, shall be promptly canceled by the Security Registrar. The
Company may at any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be promptly canceled by
the Security Registrar. Unless by a Company Order the Company shall direct that
canceled Securities be returned to it, all canceled Securities held by the
Security Registrar shall be disposed of in accordance with the Security
Registrar's customary procedures, and the Security Registrar shall promptly
deliver a certificate of disposition to the Trustee and the Company. The
Security Registrar shall promptly deliver evidence of any cancellation of a
Security in accordance with this Section 309 to the Trustee and the Company.
<PAGE>
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SECTION 310
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, or any Tranche thereof, interest on the Securities
of each series shall be computed on the basis of a three hundred sixty (360) day
year consisting of twelve (12) thirty (30) day months and, with respect to any
period less than a full calendar month, on the basis of the actual number of
days elapsed during such period.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series, or any Tranche
thereof, denominated in any currency other than Dollars or in a composite
currency (the "Required Currency"), except as otherwise specified with respect
to such Securities as contemplated by Section 301, the obligation of the Company
to make any payment of the principal thereof, or the premium, if any, or
interest, if any, thereon, shall not be discharged or satisfied by any tender by
the Company, or recovery by the Trustee, in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
Trustee timely holding the full amount of the Required Currency then due and
payable. If any such tender or recovery is in a currency other than the Required
Currency, the Trustee may take such actions as it considers appropriate to
exchange such currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, the Company shall remain fully
liable for any shortfall or delinquency in the full amount of Required Currency
then due and payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful misconduct.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche thereof, which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 301
for Securities of such series or Tranche) in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate. The Company shall,
at least forty-five (45) days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal
<PAGE>
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SECTION 403
amount of such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture or (b)
pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction or condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series, or any Tranche
thereof, are to be redeemed, the particular Securities to be redeemed shall be
selected by the Security Registrar from the Outstanding Securities of such
series or Tranche not previously called for redemption, by such method as shall
be provided for any particular series or Tranche, or, in the absence of any such
provision, by such method of random selection as the Security Registrar shall
deem fair and appropriate and which may, in any case, provide for the selection
for redemption of portions (in any authorized denomination for Securities of
such series or Tranche) of the principal amount of Securities of such series or
Tranche having a denomination larger than the minimum authorized denomination
for Securities of such series or Tranche; provided, however, that if, as
indicated in an Officer's Certificate, the Company shall have offered to
purchase all or any principal amount of the Securities then Outstanding of any
series, or any Tranche thereof, and less than all of such Securities as to which
such offer was made shall have been tendered to the Company for such purchase,
the Security Registrar, if so directed by Company Order, shall select for
redemption all or any principal amount of such Securities which have not been so
tendered.
The Security Registrar shall promptly notify the Company and
the Trustee in writing of the Securities selected for redemption and, in the
case of any Securities selected to be redeemed in part, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of the Securities to be redeemed not less than thirty
(30) nor more than sixty (60) days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
<PAGE>
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SECTION 404
(c) if less than all the Securities of any series or Tranche
are to be redeemed, the identification of the particular
Securities to be redeemed and the portion of the principal amount
of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption Date,
will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued
interest, if any, unless it shall have been specified as
contemplated by Section 301 with respect to such Securities that
such surrender shall not be required,
(f) that the redemption is for a sinking or other fund, if
such is the case, and
(g) such other matters as the Company shall deem desirable
or appropriate.
With respect to any notice of redemption of Securities at the
election of the Company, unless, upon the giving of such notice, such Securities
shall be deemed to have been paid in accordance with Section 601, such notice
may state that such redemption shall be conditional upon the receipt by the
Paying Agent or Agents for such Securities, on or prior to the date fixed for
such redemption, of money sufficient to pay the principal of and premium, if
any, and interest, if any, on such Securities and that if such money shall not
have been so received such notice shall be of no force or effect and the Company
shall not be required to redeem such Securities. In the event that such notice
of redemption contains such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of redemption was given, that
such money was not so received and such redemption was not required to be made,
and the Paying Agent or Agents for the Securities otherwise to have been
redeemed shall promptly return to the Holders thereof any of such Securities
which had been surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a condition for
redemption as aforesaid, shall be given by the Company or, upon Company Request,
by the Security Registrar in the name and at the expense of the Company. Notice
of mandatory redemption of Securities shall be given by the Security Registrar
in the name and at the expense of the Company.
<PAGE>
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SECTION 405
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities or portions thereof, if interest-bearing,
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with such notice, such Security or portion thereof shall be paid
by the Company at the Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such surrender shall be a
condition to such payment if so specified as contemplated by Section 301 with
respect to such Security; and provided, further, that, except as otherwise
specified as contemplated by Section 301 with respect to such Security, any
installment of interest on any Security the Stated Maturity of which installment
is on or prior to the Redemption Date shall be payable to the Holder of such
Security, or one or more Predecessor Securities, registered as such at the close
of business on the related Regular Record Date according to the terms of such
Security and subject to the provisions of Section 307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to be redeemed
only in part at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company or the Trustee, as the case may be, duly executed
by, the Holder thereof or his attorney duly authorized in writing), the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, a new Security or Securities of the same
series and Tranche, of any authorized denomination requested by such Holder and
of like tenor and in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE FIVE
Covenants
SECTION 501. Payment of Securities.
The Company shall pay the principal of and premium, if any,
and interest, if any, on the Securities of each series in accordance with the
terms of such Securities and this Indenture.
<PAGE>
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SECTION 502
SECTION 502. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for the
Securities of each series, or any Tranche thereof, an office or agency where
payment of such Securities shall be made, where the registration of transfer or
exchange of such Securities may be effected and where notices and demands to or
upon the Company in respect of such Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of each such office or agency and prompt notice to
the Holders of any such change in the manner specified in Section 106. If at any
time the Company shall fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof, or shall fail to
furnish the Trustee with the address thereof, payment of such Securities shall
be made, registration of transfer or exchange thereof may be effected and
notices and demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
for all such purposes in any such event.
The Company may also from time to time designate one or more
other offices or agencies with respect to the Securities of one or more series,
or any Tranche thereof, for any or all of the foregoing purposes and may from
time to time rescind such designations; provided, however, that, unless
otherwise specified as contemplated by Section 301 with respect to the
Securities of such series or Tranche, no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
for such purposes in each Place of Payment for such Securities in accordance
with the requirements set forth above. The Company shall give prompt written
notice to the Trustee, and prompt notice to the Holders in the manner specified
in Section 106, of any such designation or rescission and of any change in the
location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office or
agency required by this Section may be maintained at an office of the Company,
in which event the Company shall perform all functions to be performed at such
office or agency.
SECTION 503. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to the Securities of any series, or any Tranche thereof, it shall,
on or before each due date of the principal of and premium, if any, and
interest, if any, on any of such Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
and premium or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided. The Company shall promptly
notify the Trustee of any failure by the Company (or any other obligor on such
Securities) to make any payment of principal of or premium, if any, or interest,
if any, on such Securities.
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Whenever the Company shall have one or more Paying Agents for
the Securities of any series, or any Tranche thereof, it shall, on or before
each due date of the principal of and premium, if any, and interest, if any, on
such Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sums to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company shall promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities
of any series, or any Tranche thereof, other than the Company or the Trustee, to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on such
Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the Company
(or any other obligor upon such Securities) to make any payment
of principal of or premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any such failure,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent and
furnish to the Trustee such information as it possesses regarding
the names and addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent and, if
so stated in a Company Order delivered to the Trustee, in accordance with the
provisions of Article Six; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of and
premium, if any, or interest, if any, on any Security and remaining unclaimed
for two years after such principal and premium, if any, or interest, if any, has
become due and payable shall be paid to the Company on Company Request, or, if
then held by the Company, shall be discharged from such trust; and, upon such
payment or discharge, the Holder of such Security shall, as an unsecured general
creditor and not as the Holder of an Outstanding Security, look only to the
Company for payment of the amount so due and payable and remaining unpaid, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall
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thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such payment to the Company, may at the
expense of the Company cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after a date specified
therein, which shall not be less than thirty (30) days from the date of such
mailing, any unclaimed balance of such money then remaining will be paid to the
Company.
SECTION 504. Corporate Existence.
Subject to the rights of the Company under Article Ten, the
Company shall do or cause to be done all things necessary to preserve and keep
its corporate existence in full force and effect.
SECTION 505. Maintenance of Properties.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) all its properties used or
useful in the conduct of its businesses, considered as a whole, to be maintained
and kept in good condition, repair and working order and shall cause (or, with
respect to property owned in common with others, make reasonable effort to
cause) to be made such repairs, renewals, replacements, betterments and
improvements thereof, as, in the judgment of the Company, may be necessary in
order that the operation of such properties, considered as a whole, may be
conducted in accordance with common industry practice; provided, however, that
nothing in this Section shall prevent the Company from discontinuing, or causing
the discontinuance of, the operation and maintenance of any of its properties;
and provided, further, that nothing in this Section shall prevent the Company
from selling, transferring or otherwise disposing of, or causing the sale,
transfer or other disposition of, any of its properties.
SECTION 506. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in
(a) any covenant or restriction specified with respect to
the Securities of any one or more series, or any Tranche or
Tranches thereof, as contemplated by Section 301 if before the
time for such compliance the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series and
Tranches with respect to which compliance with such covenant or
restriction is to be omitted, considered as one class, shall, by
Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision
or condition; provided, however, that no such waiver shall be
effective as to any matters contemplated in clause (a), (b) or
(c) in Section 1102 without consent of the Holders specified in
such Section; and
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SECTION 507
(b) Section 504 or 505 or Article Ten if before the time for
such compliance the Holders of a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition;
but, in either case, no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
SECTION 507. Annual Officer's Certificate as to Compliance.
Not later than December 1 in each year, commencing December 1,
1998, the Company shall deliver to the Trustee an Officer's Certificate which
need not comply with Section 102, executed by the principal executive officer,
the principal financial officer or the principal accounting officer of the
Company, as to such officer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such compliance to be determined
without regard to any period of grace or requirement of notice under this
Indenture.
ARTICLE SIX
Satisfaction and Discharge
SECTION 601. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the principal
amount thereof, shall be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company in respect thereof shall
be satisfied and discharged, if there shall have been irrevocably deposited with
the Trustee or any Paying Agent (other than the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof, Eligible
Obligations, which shall not contain provisions permitting the
redemption or other prepayment thereof at the option of the
issuer thereof, the principal of and the interest on which
when due, without any regard to reinvestment thereof, will
provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent,
shall be sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
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to pay when due the principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof; provided, however,
that in the case of the provision for payment or redemption of less than all the
Securities of any series or Tranche, such Securities or portions thereof shall
have been selected by the Security Registrar as provided herein and, in the case
of a redemption, the notice requisite to the validity of such redemption shall
have been given or irrevocable authority shall have been given by the Company to
the Trustee to give such notice, under arrangements satisfactory to the Trustee;
and provided, further, that the Company shall have delivered to the Trustee and
such Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that
the money and Eligible Obligations deposited in accordance
with this Section shall be held in trust, as provided in
Section 603;
(y) if Eligible Obligations shall have been deposited,
an Opinion of Counsel to the effect that such obligations
constitute Eligible Obligations and do not contain
provisions permitting the redemption or other prepayment
thereof at the option of the issuer thereof, and an opinion
of an independent public accountant of nationally recognized
standing, selected by the Company, to the effect that the
other requirements set forth in clause (b) and, if
applicable, (c) above have been satisfied; and
(z) if such deposit shall have been made prior to the
Maturity of such Securities, an Officer's Certificate
stating the Company's intention that, upon delivery of such
Officer's Certificate, its indebtedness in respect of such
Securities or portions thereof will have been satisfied and
discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by clauses
(x), (y) and (z) above, the Trustee shall, upon Company Request, acknowledge in
writing that such Securities or portions thereof are deemed to have been paid
for all purposes of this Indenture and that the entire indebtedness of the
Company in respect thereof has been satisfied and discharged as contemplated in
this Section. In the event that all of the conditions set forth in the preceding
paragraph shall have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate specified in
clause (z) (if otherwise required) shall not have been delivered, such
Securities or portions thereof shall nevertheless be deemed to have been paid
for all purposes of this Indenture, and the Holders of such Securities or
portions thereof shall nevertheless be no longer entitled to the benefits
provided by this Indenture or of any of the covenants of the Company under
Article Five (except the covenants contained in Sections 502 and 503) or any
other covenants made in respect of such Securities or portions thereof as
contemplated by Section 301, but the indebtedness of the Company in respect of
such Securities or portions thereof shall not be deemed to have been satisfied
and discharged prior to Maturity
<PAGE>
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for any other purpose; and, upon Company Request, the Trustee shall acknowledge
in writing that such Securities or portions thereof are deemed to have been paid
for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be provided for in the
manner and with the effect provided in this Section, the Security Registrar
shall select such Securities, or portions of principal amount thereof, in the
manner specified by Section 403 for selection for redemption of less than all
the Securities of a series or Tranche.
In the event that Securities which shall be deemed to have
been paid for purposes of this Indenture, and, if such is the case, in respect
of which the Company's indebtedness shall have been satisfied and discharged,
all as provided in this Section, do not mature and are not to be redeemed within
the sixty (60) day period commencing with the date of the deposit of moneys or
Eligible Obligations, as aforesaid, the Company shall, as promptly as
practicable, give a notice, in the same manner as a notice of redemption with
respect to such Securities, to the Holders of such Securities to the effect that
such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have
been paid for purposes of this Indenture, as aforesaid, the obligations of the
Company and the Trustee in respect of such Securities under Sections 304, 305,
306, 404, 502, 503, 807 and 814 and this Article shall survive.
The Company shall pay, and shall indemnify the Trustee or any
Paying Agent with which Eligible Obligations shall have been deposited as
provided in this Section against, any tax, fee or other charge imposed on or
assessed against such Eligible Obligations or the principal or interest received
in respect of such Eligible Obligations, including, but not limited to, any such
tax payable by any entity deemed, for tax purposes, to have been created as a
result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at
any time after a Security would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's indebtedness in respect
thereof would be deemed to have been satisfied and discharged, pursuant to this
Section (without regard to the provisions of this paragraph), the Trustee or any
Paying Agent, as the case may be, (i) shall be required to return the money or
Eligible Obligations, or combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable Federal or State
bankruptcy, insolvency or other similar law or (ii) are unable to apply any
money held by the Trustee as provided in this Section and Section 603 with
respect to such Security by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, such Security shall thereupon be deemed retroactively not to have
been paid and any satisfaction and discharge of the Company's indebtedness in
respect thereof shall retroactively be deemed not to have been effected, and
such Security shall be deemed to remain Outstanding and (b) any
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satisfaction and discharge of the Company's indebtedness in respect of any
Security shall be subject to the provisions of the last paragraph of Section
503.
SECTION 602. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as hereinafter expressly provided), and the Trustee, at
the expense of the Company, shall execute such instruments as the Company shall
reasonably request to evidence and acknowledge the satisfaction and discharge of
this Indenture, when:
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of Section
601, any Security, previously deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the Trustee under
Sections 304, 305, 306, 404, 502, 503, 807 and 814 and this Article shall
survive.
Upon satisfaction and discharge of this Indenture as provided
in this Section, the Trustee shall turn over to the Company any and all money,
securities and other property then held by the Trustee for the benefit of the
Holders of the Securities (other than money and Eligible Obligations held by the
Trustee pursuant to Section 603) and shall execute and deliver to the Company
such instruments as, in the judgment of the Company, shall be necessary,
desirable or appropriate to effect or evidence the satisfaction and discharge of
this Indenture.
SECTION 603. Application of Trust Money.
Neither the Eligible Obligations nor the money deposited
pursuant to Section 601, nor the principal or interest payments on any such
Eligible Obligations, shall be withdrawn or used for any purpose other than, and
shall be held in trust for, the payment of the principal of and premium, if any,
and interest, if any, on the Securities or portions of principal amount thereof
in respect of which such deposit was made, all subject, however, to the
provisions of Section 503; provided, however, that any cash received from such
principal or interest payments on such Eligible Obligations, if not then needed
for such purpose, shall, to the extent practicable and upon Company Request and
delivery to the Trustee of the documents referred to in clause (y) in the first
paragraph of Section 601, be invested in Eligible Obligations of the type
described
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SECTION 701
in clause (b) in the first paragraph of Section 601 maturing at such times and
in such amounts as shall be sufficient, together with any other moneys and the
proceeds of any other Eligible Obligations then held by the Trustee, to pay when
due the principal of and premium, if any, and interest, if any, due and to
become due on such Securities or portions thereof on and prior to the Maturity
thereof, and interest earned from such reinvestment shall be paid over to the
Company as received, free and clear of any trust, lien or pledge under this
Indenture; and provided, further, that any moneys held in accordance with this
Section on the Maturity of all such Securities in excess of the amount required
to pay the principal of and premium, if any, and interest, if any, then due on
such Securities shall be paid over to the Company free and clear of any trust,
lien or pledge under this Indenture; and provided, further, that if an Event of
Default shall have occurred and be continuing, moneys to be paid over to the
Company pursuant to this Section shall be held until such Event of Default shall
have been waived or cured.
ARTICLE SEVEN
Events of Default; Remedies
SECTION 701. Events of Default.
"Event of Default", wherever used herein with respect to the
Securities of any series, means any of the following events which shall have
occurred and be continuing:
(a) failure to pay interest, if any, on any Security of such
series within sixty (60) days after the same becomes due and payable;
provided, however, that no such failure shall constitute an "Event of
Default" if the Company shall have made a valid extension of the
interest payment period with respect to the Securities of such series
if so provided with respect to such series as contemplated by Section
301; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series within three (3) Business Days after its
Maturity; provided, however, that no such failure shall constitute an
"Event of Default" if the Company shall have made a valid extension of
the Maturity of the Securities of such series if so provided with
respect to such series as contemplated by Section 301; or
(c) failure to perform or breach of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a
default in the performance of which or breach of which is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more
series of Securities other than such series) for a period of ninety
(90) days after there has been given, by registered or certified mail,
to the Company by the Trustee, or to the Company and the Trustee by
the Holders of at least twenty-five per centum (25%) in principal
amount of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice
<PAGE>
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of Default" hereunder, unless the Trustee, or the Trustee and the
Holders of a principal amount of Securities of such series not less
than the principal amount of Securities the Holders of which gave 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 Holders of such principal amount of
Securities of such series, as the case may be, shall be deemed to have
agreed to an extension of such period if corrective action is
initiated by the Company within such period and is being diligently
pursued; or
(d) a default under any bond, debenture, note or other evidence
of indebtedness for money borrowed by the Company (including a default
with respect to Securities of any series other than such series) or
under any mortgage, indenture or other instrument under which there
may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (including this
Indenture), whether such indebtedness now exists or shall hereafter be
created, which default (1) shall constitute a failure to make any
payment in excess of $5,000,000 of the principal of or interest on
such indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto or (2) shall have
resulted in such indebtedness in an amount in excess of $10,000,000
becoming or being declared due and payable prior to the date on which
it would otherwise have become due and payable, without such payment
having been made, such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, as the case may be,
within a period of ninety (90) days after there shall have been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least twenty-five per
centum (25%) in principal amount of the Outstanding Securities of such
series a written notice specifying such default and requiring the
Company to cause such payment to be made, such indebtedness to be
discharged or such acceleration to be rescinded or annulled, as the
case may be, and stating that such notice is a Notice of Default
hereunder; or
(e) the entry by a court having jurisdiction in the premises of
(i) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official for the
Company or for any substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and any such decree or order
for relief or any such other decree or order shall have remained
unstayed and in effect for a period of ninety (90) consecutive days;
or
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent,
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SECTION 702
or the consent by it to the entry of a decree or order for relief in
respect of the Company in a case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the authorization of such
action by the Board of Directors.
SECTION 702. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred and be continuing
with respect to Securities of any series at the time Outstanding, then in every
such case the Trustee or the Holders of not less than thirty-three per centum
(33%) in principal amount of the Outstanding Securities of such series may
declare the principal amount (or, if any of the Securities of such series are
Discount Securities, such portion of the principal amount of such Securities as
may be specified in the terms thereof as contemplated by Section 301) of all of
the Outstanding Securities of such series to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by Holders), and
upon such declaration such principal amount (or specified amount), together with
premium, if any, and accrued interest, if any, thereon, shall become immediately
due and payable; provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one series of Securities,
the Trustee or the Holders of not less than thirty-three per centum (33%) in
aggregate principal amount of the Outstanding Securities of all such series,
considered as one class, may make such declaration of acceleration, and not the
Holders of the Securities of any one of such series.
At any time after such a declaration of acceleration with
respect to Securities of any series shall have been made, but before a judgment
or decree for payment of the money due shall have been obtained by the Trustee
as provided in this Article, such declaration and its consequences shall,
without further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a
sum sufficient to pay
(i) all overdue interest, if any, on all Securities of
such series then Outstanding;
(ii) the principal of and premium, if any, on any
Securities of such series then Outstanding which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in
such Securities;
<PAGE>
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(iii) interest upon overdue interest at the rate or
rates prescribed therefor in such Securities, to the extent
that payment of such interest is lawful; and
(iv) all amounts due to the Trustee under Section 807;
and
(b) all Events of Default with respect to Securities of such
series, other than the non-payment of the principal of Securities
of such series which shall have become due solely by such
declaration of acceleration, shall have been cured or waived as
provided in Section 713.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 703. Collection of Indebtedness and Suits for Enforcement by Trustee.
If an Event of Default described in clause (a) or (b) of
Section 701 shall have occurred and be continuing, the Company shall, upon
demand of the Trustee, pay to it, for the benefit of the Holders of the
Securities of the series with respect to which such Event of Default shall have
occurred, the whole amount then due and payable on such Securities for principal
and premium, if any, and interest, if any, and, in addition thereto, such
further amount as shall be sufficient to cover any amounts due to the Trustee
under Section 807.
If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 704. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, to the extent permitted by law, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or premium, if any, or interest,
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SECTION 705
if any, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 807;
Second: To the payment of the whole amount then due and unpaid
upon the Outstanding Securities for principal and premium, if any, and
interest, if any, in respect of which or for the benefit of which such
money has been collected; and in case such proceeds shall be
insufficient to pay in full the whole amount so due and unpaid upon
such Securities, then to the payment of such principal and interest,
if any, thereon without any preference or priority, ratably according
to the aggregate amount so due and unpaid, with any balance then
remaining to the payment of premium, if any, and, if so specified as
contemplated by Section 301 with respect to the Securities of any
series, or any Tranche thereof, interest, if any, on overdue premium,
if any, and overdue interest, if any, ratably as aforesaid, all to the
extent permitted by applicable law;
Third: To the payment of the remainder, if any, to the Company or
to whomsoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct.
SECTION 705. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for amounts due to the Trustee under Section 807)
and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to
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the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amounts due
it under Section 807.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 706. Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture or on the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders in respect of which such judgment has been
recovered.
SECTION 707. Limitation on Suits.
No Holder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of such series;
(b) the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series in respect of which an Event
of Default shall have occurred and be continuing, considered as one
class, shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for sixty (60) days after its receipt of such
notice, request and offer of indemnity shall have failed to institute
any such proceeding; and
(e) no direction inconsistent with such written request shall
have been given to the Trustee during such sixty (60) day period by
the Holders of a majority in
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aggregate principal amount of the Outstanding Securities of all series
in respect of which an Event of Default shall have occurred and be
continuing, considered as one class.
it being understood and intended that no one or more of the Holders of
Securities of any series shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of the Holders of Securities of such series or
to obtain or to seek to obtain priority or preference over any other Holders of
Securities of such series or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all
Holders of Securities of such series.
SECTION 708. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if any, and
(subject to Section 307) interest, if any, on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 709. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding shall have
been discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, the Trustee and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and such Holder
shall continue as though no such proceeding had been instituted.
SECTION 710. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 711. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 712. Control by Holders of Securities.
If an Event of Default shall have occurred and be continuing
in respect of a series of Securities, the Holders of a majority in principal
amount of the Outstanding Securities of such series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series; provided, however, that
if an Event of Default shall have occurred and be continuing with respect to
more than one series of Securities, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all such series, considered as
one class, shall have the right to make such direction, and not the Holders of
the Securities of any one of such series; and provided, further, that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture, and could not involve the Trustee in personal
liability in circumstances where indemnity would not, in the Trustee's
sole discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 713. Waiver of Past Defaults.
The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default with respect to such series
hereunder and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Section 1102 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any and all Events of Default arising therefrom shall be deemed to have been
cured, for every purpose of this
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Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 714. Undertaking for Costs.
The Company and the Trustee agree, and each Holder by its
acceptance of a Security shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, all in the
manner, to the extent and except as provided in the Trust Indenture Act; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than ten per centum
(10%) in aggregate principal amount of the Outstanding Securities of all series
in respect of which such suit may be brought, considered as one class, or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of or premium, if any, or interest, if any, on any Security on or
after the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
SECTION 715. Waiver of Stay or Extension Laws.
To the full extent that it may lawfully so agree, the Company
shall not at any time set up, claim or otherwise seek to take the benefit or
advantage of any stay or extension law, now or hereafter in effect, in order to
prevent or hinder the enforcement of this Indenture; and the Company, for itself
and all who may claim under it, so far as it or they now or hereafter may
lawfully do so, hereby waives the benefit of all such laws.
ARTICLE EIGHT
The Trustee
SECTION 801. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to Securities of any series,
(i) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as
are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
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(ii) in the absence of bad faith on its part, the Trustee
may, with respect to Securities of such series, conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee shall exercise,
with respect to Securities of such series, such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) 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 Holders of a majority in
principal amount of the Outstanding Securities of any one or more
series, as provided herein, relating to the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of
such series; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
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SECTION 802
SECTION 802. Notice of Defaults.
The Trustee shall give notice of any default hereunder with
respect to the Securities of any series to the Holders of Securities of such
series in the manner and to the extent required to do so by the Trust Indenture
Act, unless such default shall have been cured or waived; provided, however,
that in the case of any default of the character specified in Section 701(c), no
such notice to Holders shall be given until at least seventy-five (75) days
after the occurrence thereof; and provided, further, that, subject to the
provisions of Section 801, the Trustee shall not be deemed to have knowledge of
such default unless either (i) a Responsible Officer of the Trustee shall have
actual knowledge of such default or (ii) the Trustee shall have received written
notice thereof from the Company or any Holder or, in the case of a default
described in Section 701(d), from the holder of any indebtedness or from the
trustee under any mortgage, indenture or other instrument referred to in such
Section. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time, or both, would become, an Event of
Default with respect to the Securities of such series.
SECTION 803. Certain Rights of Trustee.
Subject to the provisions of Section 801 and to the applicable
provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties;
(b) any request, direction or act of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
or as otherwise expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) 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 omitting any action hereunder, the Trustee
(unless other evidence is specifically prescribed herein) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
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(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture, unless such Holder
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it complying with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may 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 further
inquiry or investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal business hours,
the books, records and premises of the Company, personally or by agent
or attorney;
(g) 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; and
(h) the Trustee shall not be charged with knowledge of any Event
of Default with respect to the Securities of any series for which it
is acting as Trustee unless either (i) a Responsible Officer of the
Trustee shall have actual knowledge of the Event of Default or (ii)
written notice of such Event of Default shall have been given to the
Trustee by the Company, any other obligor on such Securities or by any
Holder of such Securities or, in the case of a default described in
Section 701(d), from the holder of any indebtedness or from the
trustee under any mortgage, indenture or other instrument referred to
in such Section.
SECTION 804. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except
the Trustee's certificates of authentication) shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 805. May Hold Securities.
Each of the Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company or the Trustee,
in its individual or any other
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capacity, may become the owner or pledgee of Securities and, subject to Sections
808 and 813, may otherwise deal with the Company with the same rights it would
have if it were not such Trustee, Authenticating Agent, Paying Agent, Security
Registrar or other agent.
SECTION 806. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law. The Trustee
shall be under no liability for interest on or investment of any money received
by it hereunder except as expressly provided herein or otherwise agreed with,
and for the sole benefit of, the Company.
SECTION 807. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse the
Trustee upon its request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except to the extent that any such expense, disbursement or
advance may be attributable to its negligence, wilful misconduct or
bad faith; and
(c) indemnify the Trustee and hold it harmless from and against
any loss, liability or expense reasonably incurred by it arising out
of or in connection with the acceptance or administration of the trust
or trusts hereunder or the performance of its duties hereunder,
including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the
extent any such loss, liability or expense may be attributable to its
negligence, wilful misconduct or bad faith.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such
other than property and funds held in trust under Section 603 (except moneys
payable to the Company as provided in Section 603). "Trustee" for purposes of
this Section shall include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.
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SECTION 808. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any conflicting interest
within the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with the effect,
and subject to the conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its capacity as trustee in respect
of the Securities of any series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect of the Securities of
any other series. For purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act, the Indenture, dated as of July 1,
1988, between the Company and The Chase Manhattan Bank (formerly known as
Chemical Bank), trustee, shall be deemed to be specifically described herein.
SECTION 809. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of
the United States, any State or Territory thereof or the District of
Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least Fifty
Million Dollars ($50,000,000) and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least Fifty Million Dollars
($50,000,000) or the Dollar equivalent of the applicable foreign
currency and subject to supervision or examination by authority of
such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to
United States institutional trustees,
and, in either case, qualified and eligible under this Article and the Trust
Indenture Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section or the Trust Indenture Act, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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SECTION 810. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 811.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 811 shall not have been delivered to the Trustee within thirty (30) days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 808 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder for at least six months, or
(ii) the Trustee shall cease to be eligible under Section
809 or Section 310(a) of the Trust Indenture Act and shall fail
to resign after written request therefor by the Company or by any
such Holder, or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove the
Trustee with respect to all Securities or (y) subject to Section 714, any Holder
who has been a bona fide Holder for at least six (6) months may, on behalf of
itself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause (other than as contemplated in clause (y) in subsection (d) of this
Section), with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall take prompt steps to appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such
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series and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 811. If, within one (1) year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 811, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 811, any Holder who has been a bona fide Holder of a
Security of such series for at least six (6) months may, on behalf of itself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after notice or lapse of
time, or both, would become, an Event of Default shall have occurred and be
continuing, if the Company shall have delivered to the Trustee with respect to
the Securities of one or more series (i) a Board Resolution appointing a
successor Trustee or Trustees with respect to that or those series, effective as
of a date specified therein, and (ii) an instrument of acceptance of such
appointment, effective as of such date, by such successor Trustee or Trustees in
accordance with Section 811, the Trustee or Trustees with respect to that or
those series shall be deemed to have resigned as contemplated in subsection (b)
of this Section, the successor Trustee or Trustees shall be deemed to have been
appointed pursuant to subsection (e) of this Section and such appointment shall
be deemed to have been accepted as contemplated in Section 811, all as of such
date, and all other provisions of this Section and Section 811 shall be
applicable to such resignation, appointment and acceptance except to the extent
inconsistent with this subsection (f).
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and the
address of its corporate trust office.
SECTION 811. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of all series, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, shall become vested with all
the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of all sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts
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SECTION 812
of the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of such series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee, upon
payment of all sums owed to it, shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon reasonable request of any such successor Trustee, the
Company shall execute instruments to more fully and certainly vest in and
confirm to such successor Trustee all rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 812. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or
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substantially all the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 813. Preferential Collection of Claims against Company.
If the Trustee shall be or become a creditor of the Company or
any other obligor upon the Securities (other than by reason of a relationship
described in Section 311(b) of the Trust Indenture Act), the Trustee shall be
subject to any and all applicable provisions of the Trust Indenture Act
regarding the collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand; and
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company or such obligor for the purpose of financing
the purchase, processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company or such
obligor arising from the making, drawing, negotiating or incurring of
the draft, bill of exchange, acceptance or obligation.
SECTION 814. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Securities of one or more series, or any Tranche thereof, which
shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series or Tranche issued upon original issuance, exchange, registration
of transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each
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SECTION 814
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States, any State or Territory thereof or the District of Columbia or the
Commonwealth of Puerto Rico, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than Fifty Million
Dollars ($50,000,000) and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
The provisions of Sections 308, 804 and 805 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one or
more series, or any Tranche thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche
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may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
------------------------
As Trustee
By______________________
As Authenticating Agent
By______________________
Authorized Officer
If all of the Securities of a series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel), shall appoint, in accordance with this Section and in
accordance with such procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment designated by the
Company with respect to such series of Securities.
ARTICLE NINE
Lists of Holders; Reports by Trustee and Company
SECTION 901. Lists of Holders.
Semiannually, not later than June 30 and December 31 in each
year, commencing December 31, 1998, and within 30 days of such other times as
the Trustee may request in writing, the Company shall furnish or cause to be
furnished to the Trustee information as to the names and addresses of the
Holders, as of a date no more than fifteen (15) days prior to the date such
information is so furnished, and the Trustee shall preserve such information and
similar information received by it in any other capacity and afford to the
Holders access to information so preserved by it, all to such extent, if any,
and in such manner as shall be required by the Trust Indenture Act; provided,
however, that no such list need be furnished so long as the Trustee shall be the
Security Registrar.
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SECTION 902
SECTION 902. Reports by Trustee and Company.
Not later than November 15 in each year, commencing November
15, 1998, the Trustee shall transmit to the Holders, the Commission and each
securities exchange upon which any Securities are listed, a report, dated as of
the next preceding September 15, with respect to any events and other matters
described in Section 313(a) of the Trust Indenture Act, in such manner and to
the extent required by the Trust Indenture Act. The Trustee shall transmit to
the Holders, the Commission and each securities exchange upon which any
Securities are listed, and the Company shall file with the Trustee (within
thirty (30) days after filing with the Commission in the case of reports which
pursuant to the Trust Indenture Act must be filed with the Commission and
furnished to the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such manner, as shall
be required by the Trust Indenture Act. The Company shall notify the Trustee of
the listing of any Securities on any securities exchange.
ARTICLE TEN
Consolidation, Merger, Conveyance
or Other Transfer
SECTION 1001. Company may Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person, or convey or otherwise transfer, or lease, all of its properties, as or
substantially as an entirety, to any Person, unless:
(a) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or other
transfer, or which leases (for a term extending beyond the last Stated
Maturity of the Securities then Outstanding), all of the properties of
the Company, as or substantially as an entirety, shall be a Person
organized and existing under the laws of the United States, any State
or Territory thereof or the District of Columbia or under the laws of
Canada or any Province thereof (such corporation being hereinafter
sometimes called the "Successor") and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of and premium, if any, and interest, if any,
on all the Securities then Outstanding and the performance and
observance of every covenant and condition of this Indenture to be
performed or observed by the Company; and
(b) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each of which shall state that
such consolidation, merger, conveyance or other transfer or lease, and
such supplemental indenture, comply with this
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Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
Anything in this Indenture to the contrary notwithstanding,
the conveyance or other transfer, or lease, by the Company of all of its
facilities (a) for the generation of electric energy, (b) for the transmission
of electric energy or (c) for the distribution of electric energy and/or natural
gas, in each case considered alone, or all of its facilities described in
clauses (a) and (b), considered together, or all of its facilities described in
clauses (b) and (c), considered together, shall in no event be deemed to
constitute a conveyance or other transfer, or lease, of all the properties of
the Company, as or substantially as an entirety, unless, immediately following
such conveyance, transfer or lease, the Company shall own no unleased properties
in the other such categories of property not so conveyed or otherwise
transferred or leased. The character of particular facilities shall be
determined by reference to the Uniform System of Accounts prescribed for public
utilities and licensees subject to the Federal Power Act, as amended, to the
extent applicable.
SECTION 1002. Successor Substituted.
Upon any consolidation or merger or any conveyance or other
transfer of all the properties of the Company, as or substantially as an
entirety, in accordance with Section 1001, the Successor shall succeed to, and
be substituted for, and may exercise every power and right of, the Company under
this Indenture with the same effect as if such Successor had been named as the
"Company" herein. Without limiting the generality of the foregoing, the
Successor may execute and deliver to the Trustee, and thereupon the Trustee
shall, subject to the provisions of Article Three, authenticate and deliver,
Securities. All Securities so executed by the Successor, and authenticated and
delivered by the Trustee, shall in all respects be entitled to the benefits
provided by this Indenture equally and ratably with all Securities executed,
authenticated and delivered prior to the time such consolidation, merger,
conveyance or other transfer became effective.
SECTION 1003. Release of Company upon Conveyance or Other Transfer.
In the case of a conveyance or other transfer to any Person or
Persons as contemplated in Section 1001, upon the satisfaction of all the
conditions specified in Section 1001 the Company (such term being used in this
Section without giving effect to such transaction) shall be released and
discharged from all obligations and covenants under this Indenture and on and
under all Securities then Outstanding (unless the Company shall have delivered
to the Trustee an instrument in which it shall waive such release and discharge)
and the Trustee shall acknowledge in writing that the Company has been so
released and discharged.
SECTION 1004. Merger into Company.
Nothing in this Indenture shall be deemed to prevent or
restrict any consolidation or merger after the consummation of which the Company
would be the surviving or resulting
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SECTION 1005
entity or any conveyance or other transfer, or lease of any part of the
properties of the Company which does not constitute the entirety, or
substantially the entirety, thereof.
SECTION 1005. Transfer of Less than the Entirety.
(a) If the Company shall have conveyed or otherwise transferred
any part of its properties which does not constitute the entirety, or
substantially the entirety, thereof to another Person meeting the
requirements set forth in clause (a) of the first paragraph of Section
1001 and if:
(i) the transferee of such part of the properties of the
Company shall have executed and delivered to the Trustee an
indenture supplemental hereto, in form reasonably satisfactory to
the Trustee, which contains an assumption by such transferee of
the due and punctual payment of the principal of and premium, if
any, and interest, if any, on all the Securities then Outstanding
and the performance and observance of every covenant and
condition of this Indenture to be performed or observed by the
Company;
(ii) there shall have been delivered to the Trustee an
Independent Expert's Certificate
(A) describing the property so conveyed or otherwise
transferred (such description of property to be made by
reference either to specific items, units and/or elements of
property or portions thereof, on a percentage or Dollar
basis, or to properties reflected in specified accounts in
the Company's books of account or portions thereof, on a
Dollar basis); provided, however, that such property shall
be identified in such certificate as facilities for the
generation, transmission or distribution of electric energy
or for the storage, transportation or distribution of
natural gas;
(B) stating, in the judgment of the signers, the Fair
Value to the transferee of the property so conveyed or
otherwise transferred; provided, however, that there shall
be excluded from the property so evaluated any property
subject to any mortgage, deed of trust, security interest or
other lien which secures indebtedness for borrowed money or
for the deferred purchase price of property;
(C) stating an amount equal to seventy percent (70%) of
the amount stated pursuant to clause (B) above;
(D) stating an amount equal to the aggregate principal
amount of the Securities then Outstanding; and
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(E) stating that the amount stated pursuant to clause
(D) above does not exceed the amount stated pursuant to
clause (C) above; and
(iii) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel each of which
shall state that such conveyance or other transfer and such
supplemental indenture comply with this Section and that all
conditions precedent relating to such transactions provided for
in this Section and otherwise in this Indenture have been
complied with;
then, upon the satisfaction of all such conditions,
(x) the Company shall be released and discharged from all
obligations and covenants under this Indenture and on and under
all Securities then Outstanding (unless the Company shall have
delivered to the Trustee an instrument in which it shall waive
such release and discharge), and the Trustee shall acknowledge in
writing that the Company has been so released and discharged; and
(y) if the Company shall have been released and discharged
as contemplated in clause (x) above, such transferee shall
succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same
effect as if such transferee had been named the "Company" herein;
and without limiting the generality of the foregoing, such
transferee shall be deemed a "Successor" for purposes of Section
1002 and for all other purposes of this Indenture.
(b) For purposes of this Section:
"Fair Value" means the fair value of such property so
conveyed or otherwise transferred as may be determined by
reference to (a) the amount which would be likely to be obtained
in an arm's-length transaction with respect to such property
between an informed and willing buyer and an informed and willing
seller, under no compulsion, respectively, to buy or sell, (b)
the amount of investment with respect to such property which,
together with a reasonable return thereon, would be likely to be
recovered through ordinary business operations or otherwise, (c)
the cost, accumulated depreciation and replacement cost with
respect to such property and/or (d) any other relevant factors;
provided, however, that (x) the Fair Value of property shall be
determined without deduction for any mortgage, deed of trust,
pledge, security interest, encumbrance, lease, reservation,
restriction, servitude, charge or similar right or any other lien
of any kind on such property and (y) the Fair Value to the
transferee of any property shall not reflect any reduction
relating to the fact that such property may be of less value to a
Person which is not the owner or operator of the property or any
portion thereof than to a Person which is such owner or operator.
Fair Value may be determined, without physical inspection, by the
use of accounting and
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SECTION 1101
engineering records and other data maintained by the Company or
the transferee or otherwise available to the Expert certifying
the same.
"Independent Expert's Certificate" means a certificate
signed by an authorized officer of the transferee and by an
Independent Expert (which Independent Expert shall be selected
either by the board of directors or by an authorized officer of
the transferee, the execution of such certificate by such
authorized officer to be conclusive evidence of such selection)
and delivered to the Trustee. For purposes of this definition,
(a) "Expert" means a Person which is an engineer, appraiser or
other expert and which, with respect to any certificate to be
signed by such Person and delivered to the Trustee, is qualified
to pass upon the matter set forth in such certificate; (b)
"engineer" means a Person engaged in the engineering profession
or otherwise qualified to pass upon engineering matters
(including, but not limited to, a Person licensed as a
professional engineer, whether or not then engaged in the
engineering profession) and (c) "appraiser" means a Person
engaged in the business of appraising property or otherwise
qualified to pass upon the Fair Value or fair market value of
property. "Independent", when applied to any Expert, means such a
Person who (a) is in fact independent, (b) does not have any
direct material financial interest in the transferee or in any
obligor upon the Securities or in any Affiliate of the
transferee, (c) is not connected with the transferee or such
other obligor as an officer, employee, promoter, underwriter,
trustee, partner, director or any person performing similar
functions and (d) is approved by the Trustee in the exercise of
reasonable care.
ARTICLE ELEVEN
Supplemental Indentures
SECTION 1101. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities, all as provided in
Article Ten; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit of
the Holders of, or to remain in effect only so long as there
shall be Outstanding, Securities of one or more
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specified series, or one or more specified Tranches thereof, or
to surrender any right or power herein conferred upon the
Company; or
(c) to change or eliminate any provision of this Indenture
or to add any new provision to this Indenture; provided, however,
that if such change, elimination or addition shall adversely
affect the interests of the Holders of Securities of any series
or Tranche in any material respect, such change, elimination or
addition shall become effective with respect to such series or
Tranche only when no Security of such series or Tranche remains
Outstanding; or
(d) to provide collateral security for the Securities or any
series thereof; or
(e) to establish the form or terms of Securities of any
series or Tranche as contemplated by Sections 201 and 301; or
(f) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing
interest, if any, thereon and for the procedures for the
registration, exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or consent of, the
holders thereof, and for any and all other matters incidental
thereto; or
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
811(b); or
(h) to provide for the procedures required to permit the
Company to utilize, at its option, a non-certificated system of
registration for all, or any series or Tranche of, the
Securities; or
(i) to change any place or places where (1) the principal of
and premium, if any, and interest, if any, on all or any series
of Securities, or any Tranche thereof, shall be payable, (2) all
or any series of Securities, or any Tranche thereof, may be
surrendered for registration of transfer, (3) all or any series
of Securities, or any Tranche thereof, may be surrendered for
exchange and (4) notices and demands to or upon the Company in
respect of all or any series of Securities, or any Tranche
thereof, and this Indenture may be served; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein; or to make any other changes to the
provisions hereof or to add other provisions with respect to
matters or questions arising under this Indenture, provided that
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SECTION 1102
such other changes or additions shall not adversely affect the
interests of the Holders of Securities of any series or Tranche
in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of this
Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes
to any provisions hereof or the inclusion herein of any
additional provisions, or shall by operation of law be deemed to
effect such changes or incorporate such provisions by reference
or otherwise, this Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust Indenture Act,
and the Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to evidence
such amendment hereof; or
(y) if any such amendment shall permit one or more changes
to, or the elimination of, any provisions hereof which, at the
date of the execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture Act to be
contained herein or are contained herein to reflect any
provisions of the Trust Indenture Act as in effect at such date,
this Indenture shall be deemed to have been amended to effect
such changes or elimination, and the Company and the Trustee may,
without the consent of any Holders, enter into an indenture
supplemental hereto to amend this Indenture to effect such
changes or elimination.
SECTION 1102. Supplemental Indentures with Consent of Holders.
Subject to the provisions of Section 1101, with the consent of
the Holders of a majority in aggregate principal amount of the Securities of all
series then Outstanding under this Indenture, considered as one class, by Act of
said Holders delivered to the Company and the Trustee, the Company and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture; provided, however, that if there shall
be Securities of more than one series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if the proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities
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of all Tranches so directly affected, considered as one class, shall be
required; and provided, further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security other
than pursuant to the terms thereof, or reduce the principal
amount thereof or the rate of interest thereon (or the amount of
any installment of interest thereon) or change the method of
calculating such rate or reduce any premium payable thereon, or
reduce the amount of the principal of any Discount Security that
would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 702, or change the coin
or currency (or other property), in which any Security or
premium, if any, or interest, if any, thereon is payable, or
impair the right to institute suit for the enforcement of any
such payment on or after the Maturity of any Security, without,
in any such case, the consent of the Holder of such Security; or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, or any Tranche thereof, the
consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with any provision of this
Indenture or of any default hereunder and its consequences, or
reduce the requirements of Section 1204 for quorum or voting,
without, in any such case, the consent of the Holder of each
Outstanding Security of such series or Tranche; or
(c) modify any of the provisions of this Section, Section
506 or Section 713 with respect to the Securities of any series
or any Tranche thereof (except to increase the percentages in
principal amount referred to in this Section or such other
Sections or to provide that other provisions of this Indenture
cannot be modified or waived without the consent of the Holders
of all Securities of such series or Tranche) without, in any such
case, the consent of the Holder of each Outstanding Security of
such series or Tranche; provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect
to changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 811(b) and 1101(g).
A supplemental indenture which (x) changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of the Holders of, or which is to remain in effect only
so long as there shall be Outstanding, Securities of one or more specified
series, or one or more Tranches thereof, or (y) modifies the rights of the
Holders of Securities of such series or Tranches with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or Tranche.
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SECTION 1103
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Anything in this Indenture to the contrary notwithstanding, if
the Officer's Certificate, supplemental indenture or Board Resolution, as the
case may be, establishing the Securities of any series or Tranche shall so
provide, (a) the Holders of such Securities shall be deemed to have consented to
a supplemental indenture containing the additions, changes or eliminations to or
from the Indenture which shall be specified in such Officer's Certificate,
supplemental indenture or Board Resolution establishing such series or Tranche,
(b) no Act of such Holders shall be required to evidence such consent and (c)
such consent may be counted in the determination of whether or not the Holders
of the requisite principal amount of Securities shall have consented to such
supplemental indenture.
SECTION 1103. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 801) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1104. Effect of Supplemental Indentures.
Upon the execution and delivery of any supplemental indenture
under this Article this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby. Any supplemental indenture
permitted by this Article may restate this Indenture in its entirety, and, upon
the execution and delivery thereof, any such restatement shall supersede this
Indenture as theretofore in effect for all purposes.
SECTION 1105. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 1106. Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for
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in such supplemental indenture. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series or Tranche.
SECTION 1107. Modification without Supplemental Indenture.
To the extent, if any, that the terms of any particular series
of Securities shall have been established in or pursuant to a Board Resolution
or an Officer's Certificate pursuant to a supplemental indenture or a Board
Resolution as contemplated by Section 301, and not in a supplemental indenture,
additions to, changes in or the elimination of any of such terms may be effected
by means of a supplemental Board Resolution or a supplemental Officer's
Certificate, as the case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or supplemental
Officer's Certificate shall not be accepted by the Trustee or otherwise be
effective unless all conditions set forth in this Indenture which would be
required to be satisfied if such additions, changes or elimination were
contained in a supplemental indenture shall have been appropriately satisfied.
Upon the acceptance thereof by the Trustee, any such supplemental Board
Resolution or supplemental Officer's Certificate shall be deemed to be a
"supplemental indenture" for purposes of Section 1104 and 1106.
ARTICLE TWELVE
Meetings of Holders; Action without Meeting
SECTION 1201. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, may be called at any time and from
time to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.
SECTION 1202. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches thereof,
for any purpose specified in Section 1201, to be held at such time and (except
as provided in subsection (b) of this Section) at such place in the Borough of
Manhattan, The City of New York, as the Trustee shall determine, or, with the
approval of the Company, at any other place. Notice of every such meeting,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than twenty-one (21) nor more than one hundred
eighty (180) days prior to the date fixed for the meeting.
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SECTION 1203
(b) The Trustee may be asked to call a meeting of the Holders
of Securities of one or more, or all, series, or any Tranche or Tranches
thereof, by the Company or by the Holders of thirty-three per centum (33%) in
aggregate principal amount of all of such series and Tranches, considered as one
class, for any purpose specified in Section 1201, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting. If
the Trustee shall have been asked by the Company to call such a meeting, the
Company shall determine the time and place for such meeting and may call such
meeting by giving notice thereof in the manner provided in subsection (a) of
this Section, or shall direct the Trustee, in the name and at the expense of the
Company, to give such notice. If the Trustee shall have been asked to call such
a meeting by Holders in accordance with this subsection (b), and the Trustee
shall not have given the notice of such meeting within twenty-one (21) days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Holders of Securities of such
series and Tranches, in the principal amount above specified, may determine the
time and the place in the Borough of Manhattan, The City of New York, or in such
other place as shall be determined or approved by the Company, for such meeting
and may call such meeting for such purposes by giving notice thereof as provided
in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, shall be valid without notice
if the Holders of all Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of the Company and the
Trustee are present, or if notice is waived in writing before or after the
meeting by the Holders of all Outstanding Securities of such series, or any
Tranche or Tranches thereof, or by such of them as are not present at the
meeting in person or by proxy, and by the Company and the Trustee.
SECTION 1203. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of one or more, or all, series, or any Tranche or Tranches thereof, a Person
shall be (a) a Holder of one or more Outstanding Securities of such series or
Tranches, or (b) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series or
Tranches by such Holder or Holders. The only Persons who shall be entitled to
attend any meeting of Holders of Securities of any series or Tranche shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1204. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of the series and Tranches with respect to
which a meeting shall have been called as hereinbefore provided, considered as
one class, shall constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any action is to be taken
at such meeting which this Indenture expressly provides may be taken by
<PAGE>
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the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and Tranches,
considered as one class, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series and Tranches,
considered as one class, shall constitute a quorum. In the absence of a quorum
within one hour of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series and Tranches,
be dissolved. In any other case the meeting may be adjourned for such period as
may be determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment of such adjourned
meeting. Except as provided by Section 1205(e), notice of the reconvening of any
meeting adjourned for more than thirty (30) days shall be given as provided in
Section 106 not less than ten (10) days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series and Tranches which shall constitute
a quorum.
Except as limited by Section 1102, any resolution presented to
a meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of such series and Tranches, considered as one
class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section shall be binding
on all the Holders of Securities of the series and Tranches with respect to
which such meeting shall have been held, whether or not present or represented
at the meeting.
SECTION 1205. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities may be in
person or by proxy; and, to the extent permitted by law, any such proxy shall
remain in effect and be binding upon any future Holder of the Securities with
respect to which it was given unless and until specifically revoked by the
Holder or future Holder (except as provided in Section 104(g)) of such
Securities before being voted.
<PAGE>
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SECTION 1206
(b) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities in regard to proof of the holding of such
Securities and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations and approved by the
Company, the holding of Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders as provided in Section 1202(b), in which case the
Company or the Holders of Securities of the series and Tranches calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of all series and Tranches represented at the
meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to
one vote for each One Thousand Dollars ($1,000) principal amount of Outstanding
Securities held or represented by such Holder; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to Section 1202 at which
a quorum is present may be adjourned from time to time by Persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities of
all series and Tranches represented at the meeting, considered as one class; and
the meeting may be held as so adjourned without further notice.
SECTION 1206. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed the signatures
of the Holders or of their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the series and Tranches
with respect to which the meeting shall have been called, held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports of all votes cast at the meeting. A record in duplicate
of the proceedings of each meeting of Holders shall be
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prepared by the secretary of the meeting and there shall be attached to such
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that such
notice was given as provided in Section 1202 and, if applicable, Section 1204.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 1207. Action without Meeting.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization, direction,
notice, consent, waiver or other action may be made, given or taken by Holders
by written instruments as provided in Section 104.
ARTICLE THIRTEEN
Immunity of Incorporators, Stockholders, Officers
and Directors
SECTION 1301. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Securities, or any part thereof,
or for any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
under this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any predecessor
or successor corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Securities are solely corporate obligations and that no
personal liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or future, of the
Company or of any predecessor or successor corporation, either directly or
indirectly through the Company or any predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or to be implied herefrom or therefrom; and such personal
liability, if any, is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution and delivery of this
Indenture and the issuance of the Securities.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
THE WASHINGTON WATER POWER
COMPANY
By:/s/ J.E. Eliassen
------------------------------
Name: J.E. Eliassen
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
THE CHASE MANHATTAN BANK, Trustee
By:/s/ R. Lorenzen
----------------------------------
Name: R. Lorenzen
Title: Senior Trust Officer
Exhibit 4(c)
===============================================================================
AVISTA CORPORATION
------------------
OFFICER'S CERTIFICATE
(Under Section 301 of the Indenture,
dated as of April 1, 1998)
Establishing Series of Securities Designated
Medium-Term Notes, Series D
-------------------------
________ ___, 1999
===============================================================================
<PAGE>
AVISTA CORPORATION
OFFICER'S CERTIFICATE
(Under Section 301 of the Indenture,
dated as of April 1, 1998)
I, Diane C. Thoren, a Assistant Treasurer of AVISTA CORPORATION (the
"Company"), in accordance with Section 301 of the Indenture, dated as of April
1, 1998 (the "Indenture", capitalized terms used herein and not defined herein
having the meanings specified in the Indenture), of the Company to The Chase
Manhattan Bank, trustee (the "Trustee"), do hereby establish a series of
Securities having the terms and characteristics set forth in this Officer's
Certificate.
PART I
Set forth below in this Part I are the terms and characteristics of the
series of Securities established hereby referred to in clauses (a) through (t)
in the second paragraph of Section 301 of the Indenture (the lettered clauses
set forth herein corresponding to such clauses in said Section 301).
(a) the title of the Securities of such series, being Series No. 2 under
the Indenture, shall be "Medium-Term Notes, Series D" (the Securities of such
series, for purposes of this Officer's Certificate, being sometimes hereinafter
called the "Notes");
(b) the aggregate principal amount of Notes which may be authenticated and
delivered under the Indenture shall not be limited;
(c) interest on the Notes shall be payable to the Person or Persons in
whose names the Notes are registered at the close of business on the Regular
Record Date for such interest, except as otherwise expressly provided in the
forms of Note attached hereto and hereby authorized and approved;
(d) the date or dates on which the principal of the Notes shall be payable
shall be determined at the time of sale of the Notes, or any Tranche thereof, by
the proper officers of the Company and communicated to the Trustee by Company
Order, or by the proper officers of the Company pursuant to the Administrative
Procedure (the "Administrative Procedure") attached as Annex II to the
Distribution Agreement dated _________ ____, 1999 among the Company, Morgan
Stanley & Co. Incorporated, Merrill Lynch & Co. and Salomon Brothers Inc;
provided, however, that in no event shall any Note have a term less than nine
months or more than 40 years;
(e) the Notes, or any Tranche thereof, may bear interest at a fixed rate
(any such Note being hereinafter called a "Fixed Rate Note") or at a floating
rate (any such Note being hereinafter called a "Floating Rate Note"), or they
may bear no interest. There shall be determined by the proper officers of the
Company and communicated to the Trustee by Company Order, or by the proper
officers of the Company pursuant to the Administrative Procedure, at the time of
sale of the Notes or any Tranche thereof,
(i) in the case of Fixed Rate Notes, the interest rate or
rates (including the interest rate, if any, on overdue principal,
premium or interest, if any) applicable to such Fixed Rate Notes, or
Tranche thereof and
(ii) in the case of Floating Rate Notes, the Initial Interest
Rate, the Base Rate (which shall be the CD Rate, the CMT Rate,
Commercial Paper Rate, the Federal Funds Rate, LIBOR, the Prime Rate,
the Treasury Rate or any other Base Rate determined at the time of sale
of the Notes or Tranche thereof), the Maximum Interest Rate, if any,
the Minimum Interest Rate, if any, the Interest Payment Period, the
Interest Reset Period, the Interest Reset Dates, the Rate Determination
Dates, the Index Maturity, the Spread, if any, the Spread Multiplier,
if any (each of such terms being referred to in the form of Floating
Rate Note attached hereto), any other terms relating to the
determination of the interest rates on Floating Rate Notes and the
interest rate, if any, on overdue principal, premium or interest, if
any, applicable to such Floating Rate Notes or Tranche thereof;
interest shall accrue on any Note from the Original Interest Accrual Date
specified in such Note or the most recent date to which interest has been paid
or duly provided for; the Interest Payment Dates on the Notes shall be
determined at the time of sale of the Notes of each Tranche by the proper
officers of the Company and communicated to the Trustee by Company Order, or
determined by the proper officers of the Company pursuant to the Administrative
Procedure, and the Regular Record Date with respect to each such Interest
Payment Date shall be the date 15 calendar days immediately preceding such
Interest Payment Date (whether or not a Business Day); and interest on Floating
Rate Notes which employ the Treasury Rate as the Base Rate shall be computed on
the basis of the actual number of days in the year;
(f) the corporate trust office of The Chase Manhattan Bank in New York, New
York shall be the place at which (i) the principal of, premium, if any, and
interest, if any, on the Notes at Maturity shall be payable upon presentment,
interest prior to Maturity to be paid as specified in the forms of Note attached
hereto, (ii) registration of transfer of the Notes may be effected, (iii)
exchanges of Notes may be effected and (iv) notices and demands to or upon the
Company in respect of the Notes and the Indenture may be served; and The Chase
Manhattan Bank shall be the Security Registrar and a Paying Agent for the Notes;
provided, however, that the Company reserves the right to change, by one or more
Officer's Certificates supplemental to this Officer's Certificate, any such
place or the Security Registrar or such Paying Agent; and provided, further,
that the Company reserves the right to designate, by one or more Officer's
Certificates supplemental to this Officer's Certificate, its principal corporate
office in Spokane, Washington as any such place or itself as the Security
Registrar;
(g) the Notes, or any Tranche thereof, shall be redeemable in whole or in
part, at the option of the Company as and to the extent determined at the time
of sale of the Notes or any Tranche thereof by the proper officers of the
Company and communicated to the Trustee by Company Order, or determined by the
proper officers of the Company pursuant to the Administrative Procedures;
(h) the obligation, if any, of the Company to redeem or purchase the Notes
or any Tranche thereof pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which, and the terms and conditions upon which, such Notes or
Tranche thereof shall be redeemed or purchased, in whole or in part, pursuant to
such obligation shall be determined at the time of sale of the Notes or Tranche
thereof by the proper officers of the Company and communicated to the Trustee by
Company Order, or determined by the proper officers of the Company pursuant to
the Administrative Procedures;
(i) the Notes shall be issued in denominations of $1,000
and any integral multiple thereof;
(j) inapplicable;
(k) inapplicable;
(l) inapplicable;
(m) inapplicable;
(n) inapplicable;
(o) inapplicable;
(p) inapplicable;
(q) the Notes are initially to be issued in global form,
registered in the name of Cede & Co., as nominee for The Depository Trust
Company (the "Depositary"). Such Notes shall not be transferable or
exchangeable, nor shall any purported transfer be registered, except as follows:
(i) such Notes may be transferred in whole, and appropriate
registration of transfer effected, if such transfer is by such nominee
to the Depositary, or by the Depositary to another nominee thereof, or
by any nominee of the Depositary to any other nominee thereof, or by
the Depositary or any nominee thereof to any successor securities
depositary or any nominee thereof; and
(ii) such Notes may be exchanged for definitive Notes
registered in the respective names of the beneficial holders thereof,
and thereafter shall be transferable without restriction, if:
(A) The Depositary, or any successor securities depositary,
shall have notified the Company and the Trustee that it is
unwilling or unable to continue to act as securities
depositary with respect to such Notes and the Trustee shall
not have been notified by the Company within ninety (90) days
of the identity of a successor securities depositary with
respect to such Notes;
(B) the Company shall have delivered to the Trustee a Company
Order to the effect that such Notes shall be so exchangeable
on and after a date specified therein; or
(C) (I) an Event of Default shall have occurred and be
continuing, (II) the Trustee shall have given notice of such
Event of Default pursuant to Section 802 of the Indenture and
(III) there shall have been delivered to the Company and the
Trustee an Opinion of Counsel to the effect that the interests
of the beneficial owners of such Notes in respect thereof will
be materially impaired unless such owners become Holders of
definitive Notes;
it being understood that any such registration of transfer or exchange shall be
effected in accordance with Section 305 of the Indenture;
(r) inapplicable;
(s) no service charge shall be made for the registration of
transfer or exchange of the Notes, or any Tranche thereof; provided, however,
that the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection with such transfer or exchange;
and
(t) Section 113 of the Indenture shall apply to the Notes,
except to the extent that the provisions of the Floating Rate Notes hereinafter
authorized and approved which are inconsistent with Section 113, and, to the
extent of such inconsistency, the provisions of the Floating Rate Notes shall
apply in lieu of the provisions of Section 113.
PART II
Set forth below in this Part II are additional terms of the
Medium-Term Notes, Series D, as contemplated by clause (u) in the second
paragraph of Section 301 of the Indenture.
(a) the Notes shall have such further terms as are set forth
in the forms of Fixed Rate Note and Floating Rate Note attached hereto as
Exhibits A and B, respectively;
(b) if the Company shall make any deposit of money and/or
Government Obligations with respect to any Notes, or any portion of the
principal amount thereof, as contemplated by Section 601 of the Indenture, the
Company shall not deliver an Officer's Certificate described in clause (z) in
the first paragraph of said Section 601 unless the Company shall also deliver to
the Trustee, together with such Officer's Certificate, either:
(i) an instrument wherein the Company, notwithstanding the
satisfaction and discharge of its indebtedness in respect of the Notes,
shall assume the obligation (which shall be absolute and unconditional)
to irrevocably deposit with the Trustee or Paying Agent such additional
sums of money, if any, or additional Government Obligations (meeting
the requirements of Section 601), if any, or any combination thereof,
at such time or times, as shall be necessary, together with the money
and/or Government Obligations theretofore so deposited, to pay when due
the principal of and premium, if any, and interest due and to become
due on such Notes or portions thereof, all in accordance with and
subject to the provisions of said Section 601; provided, however, that
such instrument may state that the obligation of the Company to make
additional deposits as aforesaid shall be subject to the delivery to
the Company by the Trustee of a notice asserting the deficiency
accompanied by an opinion of an independent public accountant of
nationally recognized standing showing the calculation thereof (which
opinion shall be obtained at the expense of the Company); or
(ii) an Opinion of Counsel to the effect that the Holders of
such Notes, or portions of the principal amount thereof, will not
recognize income, gain or loss for United States federal income tax
purposes as a result of the satisfaction and discharge of the Company's
indebtedness in respect thereof and will be subject to United States
federal income tax on the same amounts, at the same times and in the
same manner as if such satisfaction and discharge had not been
effected; and
(c)(i) So long as any of the Notes shall remain Outstanding, the
Company shall not create, issue, incur or assume any Secured Debt other than
Permitted Secured Debt without the consent of the Holders of a majority in
principal amount of the Outstanding Securities of all series (including the
Notes) and Tranches with respect to which this covenant is specified as
contemplated by Section 301, considered as one class (all such Securities being
hereinafter called the "Benefitted Securities").
(ii) The provisions of clause (c)(i) above shall not prohibit the
creation, issuance, incurrence or assumption of any Secured Debt if either
(A) the Company shall make effective provision whereby all
Benefitted Securities then Outstanding shall be secured equally and
ratably with such Secured Debt; or
(B) the Company shall deliver to the Trustee bonds, notes or
other evidences of indebtedness secured by the Lien which secures such
Secured Debt (hereinafter called "Secured Obligations") (I) in an
aggregate principal amount equal to the aggregate principal amount of
the Benefitted Securities then Outstanding, (II) maturing (or being
subject to mandatory redemption) on such dates and in such principal
amounts that, at each Stated Maturity of the Outstanding Benefitted
Securities, there shall mature (or be redeemed) Secured Obligations
equal in principal amount to the Securities then to mature and (III)
containing, in addition to any mandatory redemption provisions
applicable to all Secured Obligations outstanding under such Lien and
any mandatory redemption provisions contained therein pursuant to
clause (II) above, mandatory redemption provisions correlative to the
provisions, if any, for the mandatory redemption (pursuant to a sinking
fund or otherwise) of the Benefitted Securities or for the redemption
thereof at the option of the Holder, as well as a provision for
mandatory redemption upon an acceleration of the maturity of all
Outstanding Benefitted Securities following an Event of Default (such
mandatory redemption to be rescinded upon the rescission of such
acceleration); it being expressly understood that such Secured
Obligations (X) may, but need not, bear interest, (Y) may, but need
not, contain provisions for the redemption thereof at the option of the
issuer, any such redemption to be made at a redemption price or prices
not less than the principal amount thereof and (Z) shall be held by the
Trustee for the benefit of the Holders of all Benefitted Securities
from time to time Outstanding subject to such terms and conditions
relating to surrender to the Company, transfer restrictions, voting,
application of payments of principal and interest and other matters as
shall be set forth in an indenture supplemental hereto specifically
providing for the delivery to the Trustee of such Secured Obligations.
(iii) If the Company shall elect either of the alternatives described
in clause (c)(ii) above, the Company shall deliver to the Trustee:
(A) an indenture supplemental to the Indenture (I) together
with appropriate inter-creditor arrangements, whereby all Securities
then Outstanding shall be secured by the Lien referred to in clause
(c)(ii) above equally and ratably with all other indebtedness secured
by such Lien or (II) providing for the delivery to the Trustee
of Secured Obligations;
(B) an Officer's Certificate (I) stating that, to the
knowledge of the signer, (1) no Event of Default has occurred and is
continuing and (2) no event has occurred and is continuing which
entitles the secured party under such Lien to accelerate the maturity
of the indebtedness outstanding thereunder and (II) stating the
aggregate principal amount of indebtedness issuable, and then proposed
to be issued, under and secured by such Lien;
(C) an Opinion of Counsel (I) if the Benefitted Securities
then Outstanding are to be secured by such Lien, to the effect that all
such Securities then Outstanding are entitled to the benefit of such
Lien equally and ratably with all other indebtedness outstanding under
such Lien or (II) if Secured Obligations are to be delivered to the
Trustee, to the effect that such Secured Obligations have been duly
issued under such Lien and constitute valid obligations, entitled to
the benefit of such Lien equally and ratably with all other
indebtedness then outstanding under such Lien.
(iv) For all purposes of this clause (c), except as otherwise expressly
provided or unless the context otherwise requires:
"DEBT", with respect to any Person, means (A) indebtedness of
such Person for borrowed money evidenced by a bond, debenture, note or
other written instrument or agreement by which such Person is obligated
to repay such borrowed money and (B) any guaranty by such Person of any
such indebtedness of another Person. "Debt" does not include, among
other things, (X) indebtedness of such Person under any installment
sale or conditional sale agreement or any other agreement relating to
indebtedness for the deferred purchase price of property or services,
(Y) obligations of such Person under any lease agreement (including any
lease intended as security), whether or not such obligations are
required to be capitalized on the balance sheet of such Person under
generally accepted accounting principles, or (Z) liabilities secured by
any Lien on any property owned by such Person if and to the extent that
such Person has not assumed or otherwise become liable for the payment
thereof.
"EXCEPTED PROPERTY" means
(A) all cash on hand or in banks or other financial
institutions, deposit accounts, shares of stock, interests in general
or limited partnerships, bonds, notes, other evidences of indebtedness
and other securities, of whatsoever kind and nature, not hereafter paid
or delivered to, deposited with or held by the Trustee hereunder or
required so to be;
(B) all contracts, leases, operating agreements and other
agreements of whatsoever kind and nature; all contract rights, bills,
notes and other instruments and chattel paper (except to the extent
that any of the same constitute securities, in which case they are
separately excepted from the operation of this clause (w) under clause
(A) above); all revenues, income and earnings, all accounts, accounts
receivable and unbilled revenues, and all rents, tolls, issues,
products and profits, claims, credits, demands and judgments; all
governmental and other licenses, permits, franchises, consents and
allowances; and all patents, patent licenses and other patent rights,
patent applications, trade names, trademarks, copyrights, claims,
credits, choses in action and other intangible property and general
intangibles including, but not limited to, computer software;
(C) all automobiles, buses, trucks, truck cranes, tractors,
trailers and similar vehicles and movable equipment; all rolling stock,
rail cars and other railroad equipment; all vessels, boats, barges and
other marine equipment; all airplanes, helicopters, aircraft engines
and other flight equipment; all parts, accessories and supplies used in
connection with any of the foregoing; and all personal property of such
character that the perfection of a security interest therein or other
Lien thereon is not governed by the Uniform Commercial Code as in
effect in the jurisdiction in which such property is located;
(D) all goods, stock in trade, wares, merchandise and
inventory held for the purpose of sale or lease in the ordinary course
of business; all materials, supplies, inventory and other items of
personal property which are consumable (otherwise than by ordinary wear
and tear) in their use in the operation of any property of the Company;
all fuel, including nuclear fuel, whether or not any such fuel is in a
form consumable in the operation of any property of the Company,
including separate components of any fuel in the forms in which such
components exist at any time before, during or after the period of the
use thereof as fuel; all hand and other portable tools and equipment;
all furniture and furnishings; and computers and data processing, data
storage, data transmission, telecommunications and other facilities,
equipment and apparatus, which, in any case, are used primarily for
administrative or clerical purposes or are otherwise not necessary for
the operation or maintenance of the facilities, machinery, equipment or
fixtures of the Company for (I) the generation, transmission or
distribution of electric energy, (II) the transmission, storage or
distribution of gas or (III) the appropriation, storage, transmission
or distribution of water;
(E) all coal, ore, gas, oil and other minerals and all timber,
and all rights and interests in any of the foregoing, whether or not
such minerals or timber shall have been mined or extracted or otherwise
separated from the land; and all electric energy, gas (natural or
artificial), steam, water and other products generated, produced,
manufactured, purchased or otherwise acquired by the Company;
(F) all real property, leaseholds, gas rights, wells,
gathering, tap or other pipe lines, or facilities, equipment or
apparatus, in any case used or to be used primarily for the production
or gathering of natural gas; and
(G) all property which is the subject of a lease agreement
designating the Company as lessee and all right, title and interest of
the Company in and to such property and in, to and under such lease
agreement, whether or not such lease agreement is intended as security.
"LIEN" means any mortgage, deed of trust, pledge, security
interest, conditional sale or other title retention agreement or any
lease in the nature thereof.
"PERMITTED SECURED DEBT" means, as of any particular time, any
of the following:
(A) Secured Debt which matures less than one year from the
date of the issuance or incurrence thereof and is not extendible at the
option of the issuer; and any refundings, refinancings and/or
replacements of any such Secured Debt by or with similar Secured Debt;
(B) Secured Debt secured by Purchase Money Liens or any other
Liens existing or placed upon property at the time of, or within one
hundred eighty (180) days after, the acquisition thereof by the
Company, and any refundings, refinancings and/or replacements of any
such Secured Debt; provided, however, that no such Purchase Money Lien
or other Lien shall extend to or cover any property of the Company
other than (I) the property so acquired and improvements, extensions
and additions to such property and renewals, replacements and
substitutions of or for such property or any part or parts thereof and
(II) with respect to Purchase Money Liens, other property subsequently
acquired by the Company;
(C) Secured Debt relating to governmental obligations the
interest on which is not included in gross income for purposes of
federal income taxation pursuant to Section 103 of the Internal Revenue
Code of 1986, as amended (or any successor provision of law), for the
purpose of financing or refinancing, in whole or in part, costs of
acquisition or construction of property to be used by the Company, to
the extent that the Lien which secures such Secured Debt is required
either by applicable law or by the issuer of such governmental
obligations or is otherwise necessary in order to establish or maintain
such exclusion from gross income; and any refundings, refinancings
and/or replacements of any such Secured Debt by or with similar Secured
Debt;
(D) Secured Debt (I) which is related to the construction or
acquisition of property not previously owned by the Company or (II)
which is related to the financing of a project involving the
development or expansion of property of the Company and (III) in either
case, the obligee in respect of which has no recourse to the Company or
any property of the Company other than the property constructed or
acquired with the proceeds of such transaction or the project financed
with the proceeds of such transaction (or the proceeds of such property
or such project); and any refundings, refinancings and/or replacements
of any such Secured Debt by or with Secured Debt described in clause
(III) above;
(E) Secured Debt permitted under clause (c)(ii) above; and
(F) in addition to the Permitted Secured Debt described in
clauses (A) through (E) above, Secured Debt not otherwise permitted in
this clause (c) in an aggregate principal amount not exceeding 10% of
the total assets of the Company and its consolidated subsidiaries, as
shown on the latest balance sheet of the Company and its consolidated
subsidiaries, audited by independent certified public accountants,
dated prior to the date of the creation, issuance, incurrence or
assumption of such Secured Debt.
"PURCHASE MONEY LIEN" means, with respect to any property
being acquired by the Company, a Lien on such property which
(A) is taken or retained by the transferor of such property to
secure all or part of the purchase price thereof;
(B) is granted to one or more Persons other than the
transferor which, by making advances or incurring an obligation, give
value to enable the grantor of such Lien to acquire rights in or the
use of such property;
(C) is held by a trustee or agent for the benefit of one or
more Persons described in clause (A) or (B) above, provided that such
Lien may be held, in addition, for the benefit of one or more other
Persons which shall have theretofore given, or may thereafter give,
value to or for the benefit or account of the grantor of such Lien for
one or more other purposes; or
(D) otherwise constitutes a purchase money mortgage or a
purchase money security interest under applicable law;
and, without limiting the generality of the foregoing, for purposes of
this Indenture, the term Purchase Money Lien shall be deemed to include
any Lien described above whether or not such Lien (X) shall permit the
issuance or other incurrence of additional indebtedness secured by such
Lien on such property, (Y) shall permit the subjection to such Lien of
additional property and the issuance or other incurrence of additional
indebtedness on the basis thereof and/or (Z) shall have been granted
prior to the acquisition of such property, shall attach to or otherwise
cover property other than the property being acquired and/or shall
secure obligations issued prior and/or subsequent to the issuance of
the obligations delivered in connection with such acquisition.
"SECURED DEBT", with respect to any Person, means Debt
created, issued, incurred or assumed by such Person which is secured by
a Lien upon any property (other than Excepted Property) of the Company,
real, personal or mixed, of whatever kind or nature and wherever
located, whether owned at the date of the initial authentication and
delivery of the Notes, or thereafter acquired.
------------
<PAGE>
IN WITNESS WHEREOF, I have executed this Officer's Certificate this ___ day
of ____, 1999.
_________________________
Name:
Title:
<PAGE>
FORM OF FIXED RATE NOTE
(See legend at the end of this Security for
restrictions on transfer and change of form)
AVISTA CORPORATION
Medium-Term Notes, Series D
Original Interest Accrual Date: Redeemable: Yes__ No__
Stated Maturity: Initial Redemption Date:
Interest Rate: Initial Redemption Price:
Interest Payment Dates: Reduction Percentage:
Regular Record Dates: Redemption Limitation Date:
Other Provisions:
OID: Yes__ No__
Total Amount of OID (%):
Yield to Maturity (%):
Initial Accrual
Period OID (%):
(Constant - Yield Method)
This Security is not a Discount Security
within the meaning of the within-mentioned Indenture.
----------------------------------------------------
Principal Amount Registered No.
$ CUSIP
AVISTA CORPORATION, a corporation organized and existing under the laws of
the State of Washington (herein called the "Company," which term includes any
successor corporation under the Indenture referred to below), for value
received, hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Stated Maturity specified above, and to pay interest thereon from the
Original Interest Accrual Date specified above or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on the Interest Payment Dates specified above in each year,
commencing with the Interest Payment Date next succeeding the Original Interest
Accrual Date specified above, and at Maturity, at the Interest Rate per annum
specified above, until the principal hereof is paid or duly provided for. The
interest so payable, and paid or duly provided for, on any Interest Payment Date
shall, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date specified above (whether or not a Business
Day) next preceding such Interest Payment Date. Notwithstanding the foregoing,
(a) if the Original Interest Accrual Date of this Security is after a Regular
Record Date and before the corresponding Interest Payment Date, interest so
payable for the period from and including the Original Interest Accrual Date to
but excluding such Interest Payment Date shall be paid on the next succeeding
Interest Payment Date to the Holder hereof on the related Regular Record Date;
and (b) interest payable at Maturity shall be paid to the Person to whom
principal shall be paid. Except as otherwise provided in said Indenture, any
such interest not so paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Unpaid Interest to be fixed by the Trustee, notice of which shall be given
to Holders of Securities of this series not less than 15 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and premium, if any, on this Security and
interest hereon at Maturity shall be made upon presentation of this Security at
the Corporate Trust Office of The Chase Manhattan Bank in New York, New York, or
at such other office or agency as may be designated for such purpose by the
Company from time to time. Payment of interest on this Security (other than
interest at Maturity) shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register, except
that (a) if such Person shall be a securities depositary, such payment may be
made by such other means in lieu of check, as shall be agreed upon by the
Company, the Trustee and such Person and (b) upon the written request of a
Holder of not less than $10 million in aggregate principal amount of Securities
(as hereinafter defined) of the same series and Tranche delivered to the Company
and the Paying Agent at least ten days prior to any Interest Payment Date,
payment of interest on such Securities to such Holder on such Interest Payment
Date shall be made by wire transfer of immediately available funds to an account
maintained within the continental United States specified by such Holder or, if
such Holder maintains an account with the entity acting as Paying Agent, by
deposit into such account. Payment of the principal of and premium, if any, and
interest on this Security, as aforesaid, shall be made in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and issuable in one or more
series under and equally secured by an Indenture, dated as of April 1, 1998
(such Indenture as originally executed and delivered and as supplemented or
amended from time to time thereafter, together with any constituent instruments
establishing the terms of particular Securities, being herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the respective rights, limitations of
rights, duties and immunities of the Company, the Trustee and the Holders of the
Securities thereunder and of the terms and conditions upon which the Securities
are, and are to be, authenticated and delivered and secured. The acceptance of
this Security shall be deemed to constitute the consent and agreement by the
Holder hereof to all of the terms and provisions of the Indenture. This Security
is one of the series designated above.
If any Interest Payment Date, any Redemption Date or the Stated Maturity
shall not be a Business Day (as hereinafter defined), payment of the amounts due
on this Security on such date may be made on the next succeeding Business Day;
and, if such payment is made or duly provided for on such Business Day, no
interest shall accrue on such amounts for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be,
to such Business Day.
If, as specified above, this Security is redeemable, this Security is
subject to redemption at any time on or after the Initial Redemption Date
specified above, as a whole or in part, at the election of the Company, at the
applicable redemption price (as described below) plus accrued interest to the
date fixed for redemption. Such redemption price shall be the Initial Redemption
Price specified above for the twelve-month period commencing on the Initial
Redemption Date and shall decline for the twelve-month period commencing on each
anniversary of the Initial Redemption Date by a percentage of principal amount
equal to the Reduction Percentage specified above until such redemption price is
100% of the principal amount of this Security to be redeemed.
Notwithstanding the foregoing, the Company may not, prior to the Redemption
Limitation Date, if any, specified above, redeem this Security as contemplated
above as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an effective
interest cost to the Company (calculated in accordance with generally accepted
financial practice) less than the effective interest cost to the Company
(similarly calculated) of this Security.
[Insert provisions, if any, for redemption pursuant to a sinking fund or
analogous provision or at the option of the Holder.]
Notice of redemption [(other than at the election of the Holder)] shall be
given by mail to Holders of Securities, not less than 30 days nor more than 60
days prior to the date fixed for redemption, all as provided in the Indenture.
As provided in the Indenture, notice of redemption at the election of the
Company as aforesaid may state that such redemption shall be conditional upon
the receipt by the Trustee of money sufficient to pay the principal of and
premium, if any, and interest, if any, on this Security on or prior to the date
fixed for such redemption; a notice of redemption so conditioned shall be of no
force or effect if such money is not so received and, in such event, the Company
shall not be required to redeem this Security.
In the event of redemption of this Security in part only, a new Security or
Securities of this series, of like tenor, for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of this
Security may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Trustee to enter into one or more supplemental indentures for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all series then
Outstanding under the Indenture, considered as one class; provided, however,
that if there shall be Securities of more than one series Outstanding under the
Indenture and if a proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series so directly
affected, considered as one class, shall be required; and provided, further,
that if the Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
Tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so directly
affected, considered as one class, shall be required; and provided, further,
that the Indenture permits the Trustee to enter into one or more supplemental
indentures for limited purposes without the consent of any Holders of
Securities. The Indenture also contains provisions permitting the Holders of a
majority in principal amount of the Securities then Outstanding, on behalf of
the Holders of all Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange therefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
As provided in the Indenture and subject to certain limitations therein set
forth, this Security or any portion of the principal amount hereof will be
deemed to have been paid for all purposes of the Indenture and to be no longer
Outstanding thereunder, and, at the election of the Company, the Company's
entire indebtedness in respect thereof will be satisfied and discharged, if
there has been irrevocably deposited with the Trustee or any Paying Agent (other
than the Company), in trust, money in an amount which will be sufficient and/or
Eligible Obligations, the principal of and interest on which when due, without
regard to any reinvestment thereof, will provide moneys which, together with
moneys so deposited, will be sufficient to pay when due the principal of and
interest on this Security when due.
The Indenture contains terms, provisions and conditions relating to the
consolidation or merger of the Company with or into, and the conveyance or other
transfer, or lease, of assets to, another Person, to the assumption by such
other Person, in certain circumstances, of all of the obligations of the Company
under the Indenture and on the Securities and to the release and discharge of
the Company, in certain circumstances, from such obligation.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the corporate
trust office of The Chase Manhattan Bank in New York, New York or such other
office or agency as may be designated by the Company from time to time, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series of authorized denominations and of like tenor
and aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only as registered Securities,
without coupons, and in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of the same series and Tranche, of any authorized
denominations, as requested by the Holder surrendering the same, and of like
tenor upon surrender of the Security or Securities to be exchanged at the
corporate trust office of The Chase Manhattan Bank in New York, New York or such
other office or agency as may be designated by the Company from time to time.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due surrender of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the absolute owner hereof
for all purposes (subject to Section 307 of the Indenture), whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, except to the extent that the
Trust Indenture Act shall be applicable .
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, which is not a day on which banking institutions or trust companies in
The City of New York, New York or other city in which is located any office or
agency maintained for the payment of principal, premium, if any, or interest on
this Security, are authorized or required by law, regulation or executive order
to remain closed. All other terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
As provided in the Indenture, no recourse shall be had for the payment of
the principal of or premium, if any, or interest on any Securities, or any part
thereof, or for any claim based thereon or otherwise in respect thereof, or of
the indebtedness represented thereby, or upon any obligation, covenant or
agreement under the Indenture, against, and no personal liability whatsoever
shall attach to, or be incurred by, any incorporator, shareholder, officer or
director, as such, past, present or future of the Company or of any predecessor
or successor corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that the
Indenture and all the Securities are solely corporate obligations and that any
such personal liability is hereby expressly waived and released as a condition
of, and as part of the consideration for, the execution of the Indenture and the
issuance of the Securities.
Unless the certificate of authentication hereon has been executed by the
Trustee or an Authenticating Agent by manual signature, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
AVISTA CORPORATION
By:________________________
[Title]
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:___________________________
___________________________ OR ___________________________
___________________________, ___________________________
AS TRUSTEE AS TRUSTEE
By: ___________________________ BY:[ ],
Authorized Officer AS AUTHENTICATING AGENT
By:___________________________
Authorized Officer
This Security may not be transferred or exchanged, nor may any purported
transfer be registered, except (i) this Security may be transferred in whole,
and appropriate registration of transfer effected, if such transfer is by Cede &
Co., as nominee for The Depository Trust Company (the "Depositary"), to the
Depositary, or by the Depositary to another nominee thereof, or by any nominee
of the Depositary to any other nominee thereof, or by the Depositary or any
nominee thereof to any successor securities depositary or any nominee thereof;
and (ii) this Security may be exchanged for definitive Securities registered in
the respective names of the beneficial holders hereof, and thereafter shall be
transferable without restrictions if: (A) the Depositary, or any successor
securities depositary, shall have notified the Company and the Trustee that it
is unwilling or unable to continue to act as securities depositary with respect
to the Securities and the Trustee shall not have been notified by the Company
within ninety (90) days of the identity of a successor securities depositary
with respect to the Securities; (B) the Company shall have delivered to the
Trustee a Company Order to the effect that the Securities shall be so
exchangeable on and after a date specified therein; or (C)(1) an Event of
Default shall have occurred and be continuing, (2) the Trustee shall have given
notice of such Event of Default pursuant to Section 802 of the Indenture and (3)
there shall have been delivered to the Company and the Trustee an Opinion of
Counsel to the effect that the interests of the beneficial owners of the
Securities in respect thereof will be materially impaired unless such owners
become Holders of definitive Securities.
___________________________
<PAGE>
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
[please insert social security or other identifying number of assignee]
________________________________________________________________________________
[please print or typewrite name and address of assignee]
the within Security of AVISTA CORPORATION and does hereby irrevocably constitute
and appoint , Attorney, to transfer said Security on the books of the
within-mentioned Company, with full power of substitution in the premises.
Dated:__________________
_____________________________
Notice: The signature to this assignment must correspond with the name as
written upon the face of the Security in every particular without alteration or
enlargement or any change whatsoever.
<PAGE>
FORM OF FLOATING RATE NOTE
(See legend at the end of this Security for
restrictions on transfer and change of form)
AVISTA CORPORATION
Medium-Term Notes, Series D
ORIGINAL INTEREST ACCRUAL DATE: MAXIMUM INTEREST RATE:
STATED MATURITY: MINIMUM INTEREST RATE:
INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
BASE RATE: INTEREST PAYMENT DATES:
-- CD RATE REGULAR RECORD DATES:
-- CMT RATE INTEREST RESET PERIOD:
DESIGNATED CMT MATURITY INDEX: INTEREST RESET DATES:
DESIGNATED CMT TELERATE PAGE: RATE DETERMINATION DATES:
-- COMMERCIAL PAPER RATE INDEX MATURITY:
-- FEDERAL FUNDS RATE SPREAD: (+ BASIS PTS.)
-- LIBOR
REPORTING SERVICE: REDEEMABLE: YES __ NO __
-- LIBOR REUTERS INITIAL REDEMPTION DATE:
-- LIBOR TELERATE INITIAL REDEMPTION PRICE:
INDEX CURRENCY: REDUCTION PERCENTAGE:
-- PRIME RATE REDEMPTION LIMITATION DATE:
-- TREASURY RATE OTHER PROVISIONS:
OID: YES__ NO__
TOTAL AMOUNT OF OID (%):
YIELD TO MATURITY (%):
INITIAL ACCRUAL
PERIOD OID (%):
(CONSTANT - YIELD METHOD)
----------------------------------------------------
This Security is not a Discount Security
within the meaning of the within-mentioned Indenture.
----------------------------------------------------
Principal Amount Registered No.
$ CUSIP
AVISTA CORPORATION, a corporation organized and existing under the laws of
the State of Washington (herein called the "Company," which term includes any
successor corporation under the Indenture referred to below), for value
received, hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Stated Maturity specified above, and to pay interest thereon from the
Original Interest Accrual Date specified above or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, quarterly,
semi-annually or annually, as specified above for the Interest Payment Period,
in arrears on the Interest Payment Dates specified above in each year,
<PAGE>
commencing with the Interest Payment Date next succeeding the Original Interest
Accrual Date specified above, and at Maturity, until the principal hereof is
paid or duly provided for. Except as otherwise provided herein, the rate of
interest to be so paid shall be the Initial Interest Rate specified above until
the first Interest Reset Date specified above following the Original Interest
Accrual Date and thereafter a rate determined, in accordance with the provisions
hereinafter set forth, by reference to the Base Rate specified above plus or
minus the Spread, if any, specified above or multiplied by the Spread
Multiplier, if any, specified above. The interest so payable, and paid or duly
provided for, on any Interest Payment Date shall, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
specified above (whether or not a Business Day) next preceding such Interest
Payment Date. Notwithstanding the foregoing, (a) if the Original Interest
Accrual Date of this Security is after a Regular Record Date and before the
corresponding Interest Payment Date, interest so payable for the period from and
including the Original Interest Accrual Date to but excluding such Interest
Payment Date shall be paid on the next succeeding Interest Payment Date to the
Holder hereof on the related Regular Record Date; and (b) interest payable at
Maturity shall be paid to the Person to whom principal shall be paid. Except as
otherwise provided in said Indenture, any such interest not so paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Unpaid Interest to be fixed by the
Trustee, notice of which shall be given to Holders of Securities of this series
not less than 15 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payment of the principal of and premium, if any, on this Security and
interest hereon at Maturity shall be made upon presentation of this Security at
the Corporate Trust Office of The Chase Manhattan Bank in New York, New York or
at such other office or agency as may be designated for such purpose by the
Company from time to time. Payment of interest on this Security (other than
interest at Maturity) shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register, except
that (a) if such Person shall be a securities depositary, such payment may be
made by such other means in lieu of check, as shall be agreed upon by the
Company, the Trustee and such Person and (b) upon the written request of a
Holder of not less than $10 million in aggregate principal amount of Securities
(as hereinafter defined) of the same series and Tranche delivered to the Company
and the Paying Agent at least ten days prior to any Interest Payment Date,
payment of interest on such Securities to such Holder on such Interest Payment
Date shall be made by wire transfer of immediately available funds to an account
maintained within the continental United States specified by such Holder or, if
such Holder maintains an account with the entity acting as Paying Agent, by
deposit into such account. Payment of the principal of and premium, if any, and
interest on this Security, as aforesaid, shall be made in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and issuable in one or more
series under and equally secured by an Indenture, dated as of April 1, 1998
(such Indenture as originally executed and delivered and as supplemented or
amended from time to time thereafter, together with any constituent instruments
establishing the terms of particular Securities, being herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the respective rights, limitations of
rights, duties and immunities of the Company, the Trustee and the Holders of the
Securities thereunder and of the terms and conditions upon which the Securities
<PAGE>
are, and are to be, authenticated and delivered and secured. The acceptance of
this Security shall be deemed to constitute the consent and agreement by the
Holder hereof to all terms and provisions of the Indenture. This Security is one
of the series designated above.
Interest payments on this Security shall be the amount of interest accrued
from and including the last date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided for, from and
including the Original Interest Accrual Date, to but excluding the next
succeeding Interest Payment Date; provided, however, that if the interest rate
on this Security is reset daily or weekly as specified on the face hereof for
the Interest Reset Period, interest payments shall be the amount of interest
accrued from and including the most recent date to which interest has been paid
or duly provided for, or, if no interest has been paid, from the Original
Interest Accrual Date, to, but excluding, the Regular Record Date next preceding
such Interest Payment Date, except that at Maturity the interest payable shall
include interest accrued to but excluding the date of Maturity.
Accrued interest on this Security shall be calculated by multiplying the
principal amount of this Security by an accrued interest factor. Such accrued
interest factor shall be computed by adding the interest factors calculated for
each day in the Interest Payment Period for which accrued interest is being
calculated. The interest factor (expressed as a decimal calculated to seven
decimal places without rounding) for each such day shall be computed by dividing
the interest rate applicable to such day by 360 if the Base Rate is the CD Rate,
the Commercial Paper Rate, the Federal Funds Rate, LIBOR or the Prime Rate, as
indicated above, or by the actual number of days in the year if the Base Rate is
the CMT Rate or the Treasury Rate, as indicated above. For purposes of making
the foregoing calculation, the interest rate in effect on any Interest Reset
Date shall be the applicable rate as reset on such date. Unless otherwise
specified above, all percentages resulting from any calculation of the rate of
interest hereon shall be rounded, if necessary, to the nearest 1/100,000 of 1%
(.0000001), with five one-millionths of a percentage point rounded upward, and
all dollar amounts used in or resulting from such calculation shall be rounded
to the nearest one-hundredth cent (with .005 of a cent being rounded upward).
Except as otherwise provided herein, commencing with the first Interest
Reset Date specified above following the Original Interest Accrual Date and
thereafter upon each succeeding Interest Reset Date specified above, the rate at
which interest on this Security is payable shall be reset daily, weekly,
monthly, quarterly, semi-annually or annually as specified above for the
Interest Reset Period, and such rate, as so reset, shall be effective as of and
for the related Interest Reset Date and for the balance of the related Interest
Reset Period to but excluding the next succeeding Interest Reset Date. Unless
otherwise specified above, the Interest Reset Dates shall be, if the interest
rate on this Security resets daily, each Business Day; if the interest rate on
this Security (unless the Base Rate is the Treasury Rate) resets weekly,
Wednesday of each week; if the Base Rate specified above is the Treasury Rate
and resets weekly, Tuesday of each week (except as provided below under
"Determination of Treasury Rate"); if the interest rate on this Security resets
monthly, the third Wednesday of each month; if the interest rate on this
Security resets quarterly, the third Wednesday of March, June, September and
December of each year; if the interest rate on this Security resets
semi-annually, the third Wednesday of the two months of each year specified
above; and if the interest rate on this Security resets annually, the third
Wednesday of the month of each year specified above; provided, however, that the
interest rate in effect for the ten days immediately prior to Maturity will be
that in effect on the tenth day preceding Maturity. If an Interest Reset Date
for this Security would otherwise be a day that is not a Business Day (as
hereinafter defined), such Interest Reset Date shall be postponed to the next
succeeding Business Day, except that, if the Base Rate specified on the face
hereof is LIBOR and such Business Day is in the next succeeding calendar month,
such Interest Reset Date shall be the immediately preceding Business Day.
<PAGE>
Anything herein to the contrary notwithstanding, the interest rate hereon
shall not be greater than the Maximum Interest Rate, if any, or less than the
Minimum Interest Rate, if any, specified above. In addition, the interest rate
hereon shall in no event be higher than the maximum rate permitted by New York
law as the same may be modified by United States law of general application.
Unless otherwise specified above, interest will be payable, if the interest
rate on this Security resets daily, weekly or monthly, on the third Wednesday of
each month or on the third Wednesday of March, June, September and December of
each year, as specified above; if the interest rate on this Security resets
quarterly, on the third Wednesday of March, June, September and December of each
year; if the interest rate on this Security resets semi-annually, on the third
Wednesday of the two months of each year specified above; and if the interest
rate on this Security resets annually, on the third Wednesday of the month of
each year specified above (each such day being an "Interest Payment Date").
If any Interest Payment Date other than a Redemption Date or the Stated
Maturity would otherwise be a day that is not a Business Day, such Interest
Payment Date shall be postponed to the next succeeding Business Day, except
that, if the Base Rate specified above is LIBOR and such next succeeding
Business Day is in the next succeeding calendar month, such Interest Payment
Date shall be the next preceding Business Day. If a Redemption Date or the
Stated Maturity shall not be a Business Day, payment of the amounts due on this
Security on such date in respect of principal, premium, if any, and/or interest
may be made on the next succeeding Business Day; and if payment is made or duly
provided for on such Business Day, no interest shall accrue on such amounts for
the period from and after such Redemption Date or Stated Maturity, as the case
may be, to such Business Day.
The Company will appoint, and enter into an agreement with, an agent (the
"Calculation Agent") to calculate the interest rates on floating rate Securities
(including this Security). Unless otherwise specified above, The Chase Manhattan
Bank shall be the Calculation Agent. All determinations of interest rates by the
Calculation Agent shall, in the absence of manifest error, be conclusive for all
purposes and binding on the Holder hereof.
Subject to applicable provisions of law and except as otherwise specified
herein, on each Interest Reset Date the rate of interest shall be determined in
accordance with the provisions of the applicable heading below.
Determination of CD Rate If the Base Rate specified above is the CD Rate,
this Security shall bear interest for each Interest Reset Period at an interest
rate calculated with reference to the CD Rate, determined as set forth below,
and the Spread or Spread Multiplier, if any, and subject to the Maximum Interest
Rate, if any, and the Minimum Interest Rate, if any, specified above.
The "CD Rate" for each Interest Reset Period shall be determined by the
Calculation Agent on the Calculation Date (as hereinafter defined) and shall be
(a) the rate (expressed as a percentage per annum) as of the second Business Day
prior to the related Interest Reset Date (a "CD Rate Determination Date") for
negotiable certificates of deposit having the Index Maturity specified above as
published in H.15(519) under the heading "CDs (Secondary Market)", or (b) if
such rate is not so published by 9:00 A.M., New York City time, on the
Calculation Date, the rate as of such CD Rate Determination Date for negotiable
certificates of deposit of the Index Maturity specified above as published in
Composite Quotations (as hereinafter defined), or (c) if neither of such rates
is published by 3:00 P.M., New York City time, on the Calculation Date, the
arithmetic mean of the secondary market offered rates as of 10:00 A.M., New York
City time, on such CD Rate Determination Date for certificates of deposit in an
amount that is representative of a single transaction at that time with a
remaining maturity closest to the Index Maturity specified above of three
<PAGE>
leading nonbank dealers in negotiable U.S. dollar certificates of deposit in The
City of New York selected by the Calculation Agent, in its discretion (after
consultation with the Company); provided, however, that if the dealers selected
as aforesaid by the Calculation Agent are not quoting as described in clause (c)
above, the CD Rate for such Interest Reset Period shall be the same as the CD
Rate for the immediately preceding Interest Reset Period (or, if there was no
such previous Interest Reset Period, the rate of interest hereon for such
Interest Reset Period shall be the Initial Interest Rate).
Determination of CMT Rate If the Base Rate specified above is the CMT Rate,
this Security shall bear interest for each Interest Reset Period at a rate
calculated with reference to the CMT Rate, determined as set forth below, and
the Spread or Spread Multiplier, if any, and subject to the Maximum Interest
Rate, if any, and the Minimum Interest Rate, if any, specified above.
The "CMT Rate" for each Interest Reset Period shall be determined by the
Calculation Agent on the Calculation Date and shall be the rate (expressed as a
percentage per annum) displayed on the Designated CMT Telerate Page (as defined
below) under the caption "...Treasury Constant Maturities... Federal Reserve
Board Release H.15...Mondays Approximately 3:45 p.m." under the column for the
Designated CMT Maturity Index (as defined below) for (a)(i) if the Designated
CMT Telerate Page is 7055, the second Business Day prior to the related Interest
Reset Date (a "CMT Rate Determination Date") or (ii) if the Designated CMT
Telerate Page is 7052, the week or the month, as applicable, ended immediately
preceding the week in which such CMT Rate Determination Date occurs, or (b) if
such rate is no longer displayed on the relevant page, or if not displayed by
3:00 p.m., New York City time on the Calculation Date, the Treasury Constant
Maturity rate for the Designated CMT Maturity Index as published in H.15(519),
or (c) if such rate is no longer published or, if not published by 3:00 p.m.,
New York City time, on the Calculation Date, the Treasury Constant Maturity rate
for the Designated CMT Maturity Index (or other United States Treasury rate for
the Designated CMT Maturity Index) for such CMT Rate Determination Date as may
then be published by either the Board of Governors of the Federal Reserve System
or the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the Designated CMT
Telerate Page and published in H.15(519), or (d) if such information is not
provided by 3:00 p.m., New York City time, on the Calculation Date, then the CMT
Rate for the CMT Rate Determination Date shall be a yield to maturity, based on
the arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 p.m., New York City time, on the CMT Rate Determination Date
reported, according to their written records, by three leading primary United
States government securities dealers (each, a "Reference Dealer") in The City of
New York selected by the Calculation Agent (from five such Reference Dealers
selected by the Calculation Agent, in its discretion (after consultation with
the Company), and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued direct noncallable
fixed rate obligations of the United States ("Treasury notes") with an original
maturity of approximately the Designated CMT Maturity Index and a remaining term
to maturity of not less than such Designated CMT Maturity Index minus one year,
or (e) if the Calculation Agent cannot obtain three such Treasury notes
quotations, a yield to maturity based on the arithmetic mean of the secondary
market offer side prices as of approximately 3:30 p.m., New York City time, on
the CMT Rate Determination Date of three Reference Dealers in The City of New
York (from five such Reference Dealers selected by the Calculation Agent, in its
discretion (after consultation with the Company), and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for Treasury notes
with an original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least $100 million, or (f)
if three or four (and not five) of such Reference dealers are quoting as
described above, the arithmetic mean of the offer prices obtained without the
<PAGE>
elimination of either the highest or the lowest of such quotes; provided,
however, that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as described above, the CMT Rate for such Interest Reset
Period will be the same as the CMT Rate for the immediately preceding Interest
Reset Period (or, if there was no such previous Interest Reset Period, the rate
of interest hereon for such Interest Reset Period shall be the Initial Interest
Rate). For purposes of clause (e) in the first sentence of this paragraph, if
two Treasury notes have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the quotes for the Treasury note with the shorter
remaining term to maturity shall be used.
"Designated CMT Maturity Index" shall be the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified above with respect to which the CMT Rate will be calculated. If no
such maturity is specified above, the Designated CMT Maturity Index shall be 2
years.
"Designated CMT Telerate Page" means the display on the Dow Jones Market
service (formerly known as the Dow Jones Telerate Service) on the page specified
above (or any other page as may replace such page on that service, or any
successor service, for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519)), for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519). If no such page is specified above, the
page shall be 7052, for the most recent week.
Determination of Commercial Paper Rate If the Base Rate specified above is
the Commercial Paper Rate, this Security shall bear interest for each Interest
Reset Period at a rate calculated with reference to the Commercial Paper Rate,
determined as set forth below, and the Spread or Spread Multiplier, if any, and
subject to the Maximum Interest Rate, if any, and the Minimum Interest Rate, if
any, specified above.
The "Commercial Paper Rate" for each Interest Reset Period shall be
determined by the Calculation Agent on the Calculation Date and shall be (a) the
Money Market Yield (as hereinafter defined) as of the second Business Day prior
to the related Interest Reset Date (a "Commercial Paper Rate Determination
Date") of the rate (expressed as a percentage per annum) for commercial paper
having the Index Maturity specified above, as such rate shall be published in
H.15(519) (as hereinafter defined) under the heading "Commercial Paper -
Nonfinancial", or (b) if such rate is not so published prior to 9:00 a.m., New
York City time, on the Calculation Date, the Money Market Yield as of such
Commercial Paper Rate Determination Date of the rate for commercial paper of the
Index Maturity as published in Composite Quotations (as hereinafter defined)
under the heading "Commercial Paper", or (c) if none of such rates is published
by 3:00 p.m., New York City time, on the Calculation Date, the Money Market
Yield of the arithmetic mean of the offered rates, as of 11:00 a.m., New York
City time, on such Commercial Paper Rate Determination Date, of three leading
dealers in commercial paper in The City of New York selected by the Calculation
Agent, in its discretion (after consultation with the Company), for commercial
paper of the Index Maturity placed for a nonfinancial issuer whose bond rating
is "AA," or the equivalent, from a nationally recognized statistical rating
organization; provided, however, that if the dealers selected as aforesaid are
not quoting offered rates as described in clause (c) above, the Commercial Paper
Rate for such Interest Reset Period shall be deemed to be the same as the
Commercial Paper Rate for the preceding Interest Reset Period (or, if there was
no such previous Interest Reset Period, the rate of interest hereon for such
Interest Reset Period shall be the Initial Interest Rate).
<PAGE>
"Money Market Yield" shall be a yield calculated in accordance with the
following formula:
Money Market Yield = D x 360 x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the Index Maturity specified above.
Determination of Federal Funds Rate If the Base Rate specified above is the
Federal Funds Rate, this Security shall bear interest for each Interest Reset
Period at a rate calculated with reference to the Federal Funds Rate, determined
as set forth below, and the Spread or Spread Multiplier, if any, and subject to
the Maximum Interest Rate, if any, and the Minimum Interest Rate, if any,
specified above.
The "Federal Funds Rate" for each Interest Reset Period shall be determined
by the Calculation Agent on the Calculation Date and shall be (a) the rate
(expressed as a percentage per annum) as of the second Business Day prior to the
related Interest Reset Date (a "Federal Funds Rate Determination Date") for
Federal funds as published in H.15(519) under the heading "Federal Funds
(Effective)", or (b) if such rate is not so published by 9:00 A.M., New York
City time, on the Calculation Date, the rate on such Federal Funds Rate
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate", or (c) if neither of such rates is published by
3:00 P.M., New York City time, on the Calculation Date, the arithmetic mean of
the rates for the last transaction in overnight Federal funds as of 11:00 A.M.,
New York City time, on such Federal Funds Rate Determination Date arranged by
three leading brokers in Federal Funds transactions in The City of New York
selected by the Calculation Agent, in its discretion (after consultation with
the Company); provided, however, that if the brokers selected as aforesaid by
the Calculation Agent are not quoting as described in clause (c) above, the
Federal Funds Rate for such Interest Reset Period shall be the same as the
Federal Funds Rate for the immediately preceding Interest Reset Period (or, if
there was no such previous Interest Reset Period, the rate of interest hereon
for such Interest Reset Period shall be the Initial Interest Rate).
Determination of LIBOR If the Base Rate specified above is LIBOR, this
Security shall bear interest for each Interest Reset Period at a rate calculated
with reference to LIBOR, determined as set forth below, and the Spread or Spread
Multiplier, if any, and subject to the Maximum Interest Rate, if any, and the
Minimum Interest Rate, if any, specified above.
"LIBOR" for each Interest Reset Period shall be determined by the
Calculation Agent and shall be:
(a)(i) if "LIBOR Reuters" is specified above as the Reporting
Service, the arithmetic mean of the offered rates (unless the specified
Designated LIBOR Page (as hereinafter defined) by its terms provides
only for a single rate, in which case such single rate shall be used)
for deposits in the Index Currency specified above in the London
interbank market, for the period of the Index Maturity specified above
commencing on the related Interest Reset Date for such Interest Reset
Period, which appear or appears on the Designated LIBOR Page at
approximately 11:00 a.m., London time, on the second London Banking Day
(as hereinafter defined) prior to such Interest Reset Date (a "LIBOR
Determination Date"), or (ii) if "LIBOR Telerate" is specified above as
the Reporting Service, the rate for deposits in the Index Currency, for
the period of the Index Maturity commencing on such Interest Reset Date
(or, if the pound sterling is the Index Currency, commencing on the
LIBOR Determination Date) that appears on the Designated LIBOR Page at
approximately 11:00 a.m., London time, on such LIBOR Determination
Date;
<PAGE>
(b) with respect to a LIBOR Determination Date on which fewer
than two offered rates appear (if "LIBOR Reuters" is specified above as
the Reporting Service and calculation of LIBOR is based on the
arithmetic mean of the offered rates) or on which no rate appears (if
the Reporting Service specified above is either (x) "LIBOR Reuters" and
the Designated LIBOR Page by its terms provides only for a single rate
or (y) "LIBOR Telerate"), the Calculation Agent shall request the
principal London office of each of four major reference banks in the
London interbank market selected by the Calculation Agent, in its
discretion (after consultation with the Company), to provide the
Calculation Agent with its offered quotations for deposits in the Index
Currency, for the period of the Index Maturity commencing on the
Interest Reset Date (or, if the pound sterling is the Index Currency,
commencing on the LIBOR Determination Date) for such Interest Reset
Period and in a principal amount equal to an amount of not less than
U.S.$1 million (or the equivalent amount in the Index Currency) that is
representative of a single transaction in the Index Currency in such
market at such time, to prime banks in the London interbank market at
approximately 11:00 a.m., London time, on such LIBOR Determination
Date; if at least two such quotations are provided, LIBOR, in respect
of such LIBOR Determination Date, shall be the arithmetic mean of such
quotations;
(c) if fewer than two such quotations are so provided, LIBOR
in respect of such LIBOR Determination Date shall be the arithmetic
mean of the rates quoted by three major banks in the applicable
Principal Financial Center for the country of the Index Currency on
such LIBOR Determination Date selected by the Calculation Agent, in its
discretion (after consultation with the Company), at approximately
11:00 a.m. on such LIBOR Determination Date, for loans in the Index
Currency to leading European banks, for the period of the Index
Maturity commencing on the Interest Reset Date (or, if the pound
sterling is the Index Currency, commencing on the LIBOR Determination
Date) for such Interest Reset Period and in a principal amount of not
less than U.S.$1 million (or the equivalent amount in the Index
Currency) that is representative of a single transaction in the Index
Currency in such market at such time; provided, however, that if fewer
than three banks selected as aforesaid by the Calculation Agent are
quoting rates described in this clause (c), LIBOR for such Interest
Reset Period shall be the same as LIBOR for the immediately preceding
Interest Reset Period (or, if there was no such previous Interest Reset
Period, the rate of interest hereon for such Interest Reset Period
shall be the Initial Interest Rate).
"Designated LIBOR Page" means (x) if "LIBOR Reuters" is specified above
as the Reporting Service, the display on the Reuters monitor money rates service
(or any successor service) for the purpose of displaying the London interbank
rates of major banks for the applicable Index Currency, or (y) if "LIBOR
Telerate" is specified above as the Reporting Service, the display on the Dow
Jones Market service (formerly known as the Dow Jones Telerate Service), or any
successor service, for the purpose of displaying the London interbank rates of
major banks for the Index Currency. If neither LIBOR Reuters nor LIBOR Telerate
is specified above as the Reporting Service, LIBOR shall be determined as if
LIBOR Telerate Page 3750 had been specified.
"Index Currency" means the currency (including any composite currency) so
specified above. If no such currency is so specified above, "Index Currency"
means U.S. dollars.
"LIBOR Telerate Page 3750" means the display designated as "Page 3750" on
the Dow Jones Market service (formerly known as the Dow Jones Telerate Service),
or such other page as may replace Page 3750 on such service or such other
successor service or services as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying London
interbank offered rates for U.S. dollar deposits.
<PAGE>
"Principal Financial Center" will be, for purposes of clause (c) above, the
principal financial center of the country of the specified Index Currency, which
generally will be the capital city of such country, except that with respect to
U.S. Dollars, Deutsche Marks and Euros, the Principal Financial Center shall be
the City of New York, Frankfurt or Brussels, as the case may be.
Determination of Prime Rate If the Base Rate specified above is the Prime
Rate, this Security shall bear interest for each Interest Rest Period at a rate
calculated with reference to the Prime Rate, determined as set forth below, and
the Spread or Spread Multiplier, if any, and subject to the Maximum Interest
Rate, if any, and the Minimum Interest Rate, if any, specified above.
The "Prime Rate" for each Interest Reset Period shall be determined by the
Calculation Agent on the Calculation Date and shall be (a) the rate (expressed
as a percentage per annum) as of the second Business Day prior to the related
Interest Reset Date (a "Prime Rate Determination Date") set forth in H.15(519)
opposite the caption "Bank Prime Loan", or (b) if such rate is not so published
prior to 3:00 p.m., New York City time, on the Calculation Date, the arithmetic
mean of the rates publicly announced by each bank named on the Reuters Screen
USPRIME1 Page (as defined below) as such bank's prime rate or base lending rate
as in effect on such Prime Rate Determination Date as quoted on the Reuters
Screen USPRIME1 Page on such Prime Rate Determination Date or (c) if fewer than
four such rates appear on the Reuters Screen USPRIME1 Page for such Prime Rate
Determination Date, the arithmetic mean of the prime rates quoted on the basis
of the actual number of days in the year divided by 360 as of the close of
business on such Prime Rate Determination Date by at least two of three major
money center banks in The City of New York selected by the Calculation Agent, in
its discretion (after consultation with the Company), from which quotations are
requested; provided, however, that if fewer than two such prime rates are so
quoted by major money center banks as aforesaid, there shall be included in the
group of rates whose arithmetic mean is to be so determined the prime rates or
base lending rates, as of such Prime Rate Determination Date, of that number of
substitute banks or trust companies organized and doing business under the laws
of the United States, or any State thereof, in each case having total equity
capital of at least U.S. $500 million and being subject to supervision or
examination by Federal or State authority, selected by the Calculation Agent, in
its discretion (after consultation with the Company), which, when added to the
number of rates provided by major money center banks as aforesaid, shall equal
two.
If in any calendar month the Prime Rate is not published in H.15(519) and
the banks or trust companies selected as aforesaid are not quoting as described
in the preceding paragraph, the "Prime Rate" for the applicable Interest Reset
Period shall be Prime Rate for the immediately preceding Interest Reset Period
(or, if there was no such previous Interest Reset Period, the rate of interest
hereon for such Interest Reset Period shall be the Initial Interest Rate).
"Reuters Screen USPRIME1 Page" means the display designated as Page
"USPRIME1" on the Reuters monitor money rates service (or such other page as may
replace the USPRIME1 Page on that service for the purpose of displaying prime
rates or base lending rates of major United States banks).
Determination of Treasury Rate If the Base Rate specified above is the
Treasury Rate, this Security shall bear interest for each Interest Reset Period
at a rate calculated with reference to the Treasury Rate, determined as set
forth below, and the Spread or Spread Multiplier, if any, and subject to the
Maximum Interest Rate, if any, and the Minimum Interest Rate, if any, specified
above.
The "Treasury Rate" for each Interest Reset Period shall be determined by
the Calculation Agent on the Calculation Date and shall be (a) the rate
(expressed as a percentage per annum) for the auction held on the Treasury Rate
Determination Date (as hereinafter defined) for such Interest Reset Period of
<PAGE>
direct obligations of the United States ("Treasury bills") having the Index
Maturity specified above, as such rate shall be published in H.15(519) under the
heading "U.S. Government Securities - Treasury bills - auction average
(investment)", or (b) if such rate is not published prior to 9:00 a.m., New York
City time, on the Calculation Date, the auction average rate (expressed as a
bond equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) on such Treasury Rate Determination Date as otherwise
announced by the United States Department of Treasury, or (c) if the results of
the auction of Treasury bills having such Index Maturity are not published or
reported as provided above by 3:00 p.m., New York City time, on the Calculation
Date, or if no such auction is held on such Treasury Rate Determination Date, a
yield to maturity (expressed as a bond equivalent on the basis of a year of 365
or 366 days, as applicable, and applied on a daily basis) of the arithmetic mean
of the secondary market bid rates, as of approximately 3:30 p.m., New York City
time, on such Treasury Rate Determination Date, of three leading primary United
States government securities dealers selected by the Calculation Agent, in its
discretion (after consultations with the Company), for the issue of Treasury
bills with a remaining maturity closest to such Index Maturity; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting bid rates as described in clause (c) above, then the "Treasury Rate"
for such Interest Reset Period shall be deemed to be the same as the Treasury
Rate for the immediately preceding Interest Reset Period (or, if there was no
such previous Interest Reset Period, the rate of interest hereon for such
Interest Reset Period shall be the Initial Interest Rate).
The "Treasury Rate Determination Date" for each Interest Reset Period shall
be the day of the week in which the Interest Reset Date for such Interest Reset
Period falls on which Treasury bills would normally be auctioned. (As of the
Original Interest Accrual Date, Treasury bills are normally sold at auction on
Monday of each week, unless that day is a legal holiday, in which case the
auction is normally held on the following Tuesday, except that such auction may
be held on the preceding Friday.) If, as the result of a legal holiday, an
auction is so held on the preceding Friday, such Friday shall be the Treasury
Rate Determination Date pertaining to the Interest Reset Period commencing in
the next succeeding week. If an auction date shall fall on any day that would
otherwise be an Interest Reset Date for a Treasury Rate Note, then such Interest
Reset Date shall instead be the Business Day immediately following such auction
date.
If, as specified above, this Security is redeemable, this Security is
subject to redemption at any time on or after the Initial Redemption Date
specified above, as a whole or in part, at the election of the Company, at the
applicable redemption price (as described below) plus accrued interest to the
date fixed for redemption. Such redemption price shall be the Initial Redemption
Price specified above for the twelve-month period commencing on the Initial
Redemption Date and shall decline for the twelve-month period commencing on each
anniversary of the Initial Redemption Date by a percentage of principal amount
equal to the Reduction Percentage specified above until such redemption price is
100% of the principal amount of this Security to be redeemed.
Notwithstanding the foregoing, the Company may not, prior to the Redemption
Limitation Date, if any, specified above, redeem this Security as contemplated
above as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an effective
interest cost to the Company (calculated in accordance with generally accepted
financial practice) less than the effective interest cost to the Company
(similarly calculated) of this Security.
[Insert provisions, if any, for redemption pursuant to a sinking fund or
analogous provision or at the option of the Holder.]
<PAGE>
Notice of redemption [(other than at the election of the Holder)] shall be
given by mail to Holders of Securities, not less than 30 days nor more than 60
days prior to the date fixed for redemption, all as provided in the Indenture.
As provided in the Indenture, notice of redemption at the election of the
Company as aforesaid may state that such redemption shall be conditional upon
the receipt by the Trustee of money sufficient to pay the principal of and
premium, if any, and interest, if any, on this Security on or prior to the date
fixed for such redemption; a notice of redemption so conditioned shall be of no
force or effect if such money is not so received and, in such event, the Company
shall not be required to redeem this Security.
In the event of redemption of this Security in part only, a new Security or
Securities of this series, of like tenor, for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of this
Security may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Trustee to enter into one or more supplemental indentures for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all series then
Outstanding under the Indenture, considered as one class; provided, however,
that if there shall be Securities of more than one series Outstanding under the
Indenture and if a proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series so directly
affected, considered as one class, shall be required; and provided, further,
that if the Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
Tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so directly
affected, considered as one class, shall be required; and provided, further,
that the Indenture permits the Trustee to enter into one or more supplemental
indentures for limited purposes without the consent of any Holders of
Securities. The Indenture also contains provisions permitting the Holders of a
majority in principal amount of the Securities then Outstanding, on behalf of
the Holders of all Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange therefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
As provided in the Indenture and subject to certain limitations therein set
forth, this Security or any portion of the principal amount hereof will be
deemed to have been paid for all purposes of the Indenture and to be no longer
Outstanding thereunder, and, at the election of the Company, the Company's
entire indebtedness in respect thereof will be satisfied and discharged, if
there has been irrevocably deposited with the Trustee or any Paying Agent (other
than the Company), in trust, money in an amount which will be sufficient and/or
Eligible Obligations, the principal of and interest on which when due, without
regard to any reinvestment thereof, will provide moneys which, together with
moneys so deposited, will be sufficient to pay when due the principal of and
interest on this Security when due.
The Indenture contains terms, provisions and conditions relating to the
consolidation or merger of the Company with or into, and the conveyance or other
<PAGE>
transfer, or lease, of assets to, another Person, to the assumption by such
other Person, in certain circumstances, of all of the obligations of the Company
under the Indenture and on the Securities and to the release and discharge of
the Company, in certain circumstances, from such obligation.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the corporate
trust office of The Chase Manhattan Bank in New York, New York or such other
office or agency as may be designated by the Company from time to time, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series of authorized denominations and of like tenor
and aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only as registered Securities,
without coupons, and in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of the same series and Tranche, of any authorized
denominations, as requested by the Holder surrendering the same, and of like
tenor upon surrender of the Security or Securities to be exchanged at the
corporate trust office of The Chase Manhattan Bank in New York, New York or such
other office or agency as may be designated by the Company from time to time.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due surrender of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the absolute owner hereof
for all purposes (subject to Section 307 of the Indenture), whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, except to the extent that the
Trust Indenture Act shall be applicable.
As used herein,
(1) "Business Day" means any day, other than a Saturday or Sunday,
which is (a) not a day on which banking institutions or trust
companies in The City of New York, New York or other city in
which is located any office or agency maintained for the payment
of principal of or premium, if any, or interest on this Security,
are authorized or required by law, regulation or executive order
to remain closed and (b) if the Base Rate specified above is
LIBOR, a London Banking Day. "London Banking Day" means any day
on which dealings in deposits in the Index Currency, if any,
specified above are transacted in the London Interbank market;
(2) "Calculation Date", with respect to a Rate Determination Date,
means the earlier of (a) the tenth calendar day after such Rate
Determination Date, or, if such day is not a Business Day, the
next succeeding Business Day, and (b) the Business Day next
preceding the related Interest Payment Date or the Maturity Date,
as the case may be;
<PAGE>
(3) "Composite Quotations" means the daily statistical release
entitled "Composite 3:30 p.m. Quotations for U.S. Government
Securities," or any successor release, published by the Federal
Reserve Bank of New York;
(4) "H.15(519)" means the publication entitled "Statistical Release
H.15(519)," Selected Interest Rates, or any successor
publication, published by the Board of Governors of the Federal
Reserve System; and
(5) "Rate Determination Date" means, as applicable, a "CD Rate
Determination Date", a "CMT Rate Determination Date", a
"Commercial Paper Rate Determination Date", a "Federal Funds Rate
Determination Date", a "LIBOR Determination Date", a "Prime Rate
Determination Date" or a "Treasury Rate Determination Date".
All other terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
As provided in the Indenture, no recourse shall be had for the payment of
the principal of or premium, if any, or interest on any Securities, or any part
thereof, or for any claim based thereon or otherwise in respect thereof, or of
the indebtedness represented thereby, or upon any obligation, covenant or
agreement under the Indenture, against, and no personal liability whatsoever
shall attach to, or be incurred by, any incorporator, shareholder, officer or
director, as such, past, present or future of the Company or of any predecessor
or successor corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that the
Indenture and all the Securities are solely corporate obligations and that any
such personal liability is hereby expressly waived and released as a condition
of, and as part of the consideration for, the execution of the Indenture and the
issuance of the Securities.
Unless the certificate of authentication hereon has been executed by the
Trustee or an Authenticating Agent by manual signature, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
AVISTA CORPORATION
By:_________________________________________
[Title]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:___________________________
___________________________ OR __________________________
___________________________, ________________________,
AS TRUSTEE AS TRUSTEE
By: ___________________________ BY:[ ],
Authorized Officer AS AUTHENTICATING AGENT
By:_________________________
Authorized Officer
<PAGE>
This Security may not be transferred or exchanged, nor may any purported
transfer be registered, except (i) this Security may be transferred in whole,
and appropriate registration of transfer effected, if such transfer is by Cede &
Co., as nominee for The Depository Trust Company (the "Depositary"), to the
Depositary, or by the Depositary to another nominee thereof, or by any nominee
of the Depositary to any other nominee thereof, or by the Depositary or any
nominee thereof to any successor securities depositary or any nominee thereof;
and (ii) this Security may be exchanged for definitive Securities registered in
the respective names of the beneficial holders hereof, and thereafter shall be
transferable without restrictions if: (A) the Depositary, or any successor
securities depositary, shall have notified the Company and the Trustee that it
is unwilling or unable to continue to act as securities depositary with respect
to the Securities and the Trustee shall not have been notified by the Company
within ninety (90) days of the identity of a successor securities depositary
with respect to the Securities; (B) the Company shall have delivered to the
Trustee a Company Order to the effect that the Securities shall be so
exchangeable on and after a date specified therein; or (C)(1) an Event of
Default shall have occurred and be continuing, (2) the Trustee shall have given
notice of such Event of Default pursuant to Section 802 of the Indenture and (3)
there shall have been delivered to the Company and the Trustee an Opinion of
Counsel to the effect that the interests of the beneficial owners of the
Securities in respect thereof will be materially impaired unless such owners
become Holders of definitive Securities.
___________________________
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
[please insert social security or other identifying number of assignee]
________________________________________________________________________________
[please print or typewrite name and address of assignee]
the within Security of AVISTA CORPORATION and does hereby irrevocably constitute
and appoint , Attorney, to transfer said Security on the books of the
within-mentioned Company, with full power of substitution in the premises.
Dated:___________________________
___________________________
Notice: The signature to this assignment must correspond with the name as
written upon the face of the Security in every particular without alteration or
enlargement or any change whatsoever.
Exhibit 5(a)
[Letterhead of PAINE, HAMBLEN, COFFIN, BROOKE & MILLER LLP]
July 2, 1999
Please Respond to: SPOKANE
Exhibit 5(a)
Avista Corporation
1411 East Mission Avenue
Spokane, Washington 99202
Dear Ladies and Gentlemen:
We are acting as counsel to Avista Corporation (the
"Company") in connection with the proposed issuance by the
Company of unsecured debt securities (the "Debt Securities")
under the Indenture, dated as of April 1, 1998 (the "Indenture"),
from the Company to The Chase Manhattan Bank, as trustee, to be
issued and sold from time to time by the Company in one or more
public offerings. The Debt Securities are to be issued in an
aggregate principal amount of up to $400,000,000, as contemplated
in the registration statement on Form S-3 proposed to be filed by
the Company with the Securities and Exchange Commission on or
about the date hereof for the registration of the Debt Securities
under the Securities Act of 1933, as amended (the "Act"), said
registration statement, as it may be amended, and including the
exhibits thereto, being hereinafter called the "Registration
Statement."
We have examined and are familiar with originals or copies,
certified or otherwise identified to our satisfaction, of (i) the
Registration Statement, (ii) the Indenture, (iii) the resolutions
of the Company's Board of Directors authorizing the issuance and
sale of the Debt Securities, and (iv) a Certificate of
Existence/Authorization issued by the Secretary of State of the
State of Washington. We have also examined such other documents
and satisfied ourselves as to such other matters as we have
deemed necessary in order to render this opinion. As to various
facts material to the opinions expressed below, we have relied on
< PAGE >
Avista Corporation
July 2, 1999
Page -2
certificates of public officials, certificates of officers or
employees of the Company, representations contained in documents,
and other oral or written assurances by officers or employees of
the Company.
Based upon the foregoing and subject to the qualifications
herein expressed, we are of the opinion that:
(a) the Company is a corporation duly incorporated and
validly existing under the laws of the State of Washington;
and
(b) the issuance and sale by the Company of the Debt
Securities as contemplated in the Registration Statement
have been duly authorized by the Company's Board of
Directors, subject to the terms and limitations set forth in
the resolutions of the Board of Directors; and no further
corporate action on the part of the Company is necessary to
authorize such issuance and sale of the Debt Securities or
in order for the Debt Securities, when so issued and sold,
to constitute valid and binding obligations of the Company,
provided that such issuance and sale is within the terms and
limitations set forth in such resolutions.
We are also of the opinion that when:
(i) the Registration Statement shall have become
effective under the Act (and assuming that no stop order
shall have been issued), and
(ii) the Washington Utilities and Transportation
Commission, the California Public Utilities Commission, the
Idaho Public Utilities Commission and the Public Utility
Commission of Oregon shall have issued, pursuant to
applications filed by the Company with said regulatory
authorities, appropriate orders authorizing the issuance and
sale by the Company of the Debt Securities,
then no further approval, authorization, consent or other order
of, or filing with, any governmental agency of the States of
Washington, California, Idaho, Montana, and Oregon will be
legally required for the authorization of the issuance and sale
by the Company of the Debt Securities or in order for the Debt
Securities, when issued and sold as anticipated in the aforesaid
orders, to be legally issued and to constitute binding
obligations of the Company.
< PAGE >
Avista Corporation
July 2, 1999
Page -3
The opinions expressed herein are limited to the laws of the
States of Washington, California, Idaho, Montana and Oregon
(excluding therefrom principles of conflicts of laws, state
securities or blue sky laws and laws of political subdivisions of
such States).
This opinion is given as of the date hereof, without any
obligation upon us to update this opinion or to advise the
addressee hereof or any other party of any changes in
circumstances or laws that may hereafter be brought to our
attention or occur which may affect this opinion.
We hereby consent to the filing of this opinion as Exhibit
5(a) to the Registration Statement and to the references to our
firm, as counsel, under the heading "Legal Matters" in the
prospectus which forms a part of the Registration Statement. In
giving the foregoing consent, we do not admit that we are within
the category of persons whose consent is required under Section 7
of the Act or the rules and regulations promulgated thereunder.
Except as expressly permitted hereby, this opinion may not be
used, delivered, circulated, filed, quoted or otherwise referred
to.
Very truly yours,
PAINE, HAMBLEN, COFFIN,
BROOKE & MILLER LLP
/s/Lawrence R. Small
Exhibit 5(b)
[FORM OF THELEN REID & PRIEST OPINION]
New York, New York
July 2, 1999
Avista Corporation
1411 East Mission Avenue
Spokane, Washington 99202
Ladies and Gentlemen:
We are acting as counsel to Avista Corporation (the
"Company") in connection with the proposed issuance by the
Company of unsecured debt securities (the "Debt Securities")
under the Indenture, dated as of April 1, 1998 (the "Indenture"),
from the Company to The Chase Manhattan Bank, as trustee, to be
issued and sold from time to time by the Company in one or more
public offerings. The Debt Securities are to be issued in an
aggregate principal amount of up to $400,000,000, as contemplated
by the registration statement on Form S-3 proposed to be filed by
the Company with the Securities and Exchange Commission on or
about the date hereof for the registration of the Debt Securities
under the Securities Act of 1933, as amended (the "Act"), said
registration statement, as it may be amended, and including the
exhibits thereto, being hereinafter called the "Registration
Statement."
We have examined and are familiar with originals or copies,
certified or otherwise identified to our satisfaction, of (i) the
Registration Statement and (ii) the Indenture. We have also
examined such other documents and satisfied ourselves as to such
other matters as we have deemed necessary in order to render this
opinion.
Based upon the foregoing and subject to the qualifications
hereinafter expressed, we are of the opinion that when:
(a) the Registration Statement shall have become
effective under the Act; and
(b) the Washington Utilities and Transportation
Commission, the California Public Utilities Commission, the
Idaho Public Utilities Commission and the Public Utility
Commission of Oregon shall have issued, pursuant to
applications filed by the Company with said regulatory
authorities, appropriate orders authorizing the issuance and
sale by the Company of the Debt Securities (such matters
having been addressed in the opinion of Paine, Hamblen,
Coffin, Brooke & Miller LLP, which is being filed as Exhibit
5(a) to the Registration Statement); and
(c) the Debt Securities have been issued, sold and paid
for as contemplated in the aforesaid orders and in the
Registration Statement,
then the Debt Securities will be legally issued and will be
binding obligations of the Company.
The opinions expressed herein are limited to the laws of the
State of New York and the federal law of the United States
(excluding therefrom principles of conflicts of laws, state
securities or blue sky laws). To the extent that such opinions
relate to or are dependent upon matters governed by the laws of
other States, we have assumed the legal conclusions set forth in
the opinion of Paine, Hamblen, Coffin, Brooke & Miller LLP, which
is being filed as Exhibit 5(a) to the Registration Statement.
We hereby consent to the filing of this opinion as Exhibit
5(b) to the Registration Statement and to the references to our
firm, as counsel, in the Registration Statement and in the
prospectus contained therein. In giving the foregoing consent,
we do not admit that we are within the category of persons whose
consent is required under Section 7 of the Act or the rules and
regulations promulgated thereunder.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
AVISTA CORPORATION
(Exact name of obligor as specified in its charter)
WASHINGTON 91-0462470
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1411 EAST MISSION AVENUE
SPOKANE, WASHINGTON 99202
(Address of principal executive offices) (Zip Code)
MEDIUM TERM NOTES, SERIES D
(Title of the indenture securities)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2,33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 30th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ R. Lorenzen
-----------------------------
/s/ R. Lorenzen
Assistant Vice President
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
<S> <C>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ......................................................... $ 15,364
Interest-bearing balances ................................................. 3,811
Securities:
Held to maturity securities .................................................... 1,084
Available for sale securities .................................................. 49,894
Federal funds sold and securities purchased under
agreements to resell ...................................................... 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income $131,839
Less: Allowance for loan and lease losses 2,642
Less: Allocated transfer risk reserve ...... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve .................................................... 129,197
Trading Assets ................................................................. 45,483
Premises and fixed assets (including capitalized leases) ....................... 3,124
Other real estate owned ........................................................ 242
Investments in unconsolidated subsidiaries and
associated companies ...................................................... 171
Customers' liability to this bank on acceptances outstanding ................... 974
Intangible assets .............................................................. 2,017
Other assets ................................................................... 12,477
TOTAL ASSETS ................................................................... $291,476
=========
LIABILITIES
Deposits
In domestic offices ....................................................... $102,273
Noninterest-bearing ....................... $39,135
Interest-bearing .......................... 63,138
------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's .................................................... 74,586
Noninterest-bearing ............................ $ 4,221
Interest-bearing .......................... 70,365
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................................ 41,039
Demand notes issued to the U.S. Treasury ....................................... 1,000
Trading liabilities ............................................................ 32,929
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ............................. 4,353
With a remaining maturity of more than one year
through three years ................................................ 14
With a remaining maturity of more than three years ...................... 92
Bank's liability on acceptances executed and outstanding ....................... 974
Subordinated notes and debentures .............................................. 5,427
Other liabilities .............................................................. 9,684
TOTAL LIABILITIES .............................................................. 272,371
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus .................................. 0
Common stock ................................................................... 1,211
Surplus (exclude all surplus related to preferred stock) ...................... 11,016
Undivided profits and capital reserves ......................................... 7,040
Net unrealized holding gains (losses)
on available-for-sale securities ............................................... (179)
Accumulated net gains (losses) on cash flow hedges ............................. 0
Cumulative foreign currency translation adjustments ............................ 17
TOTAL EQUITY CAPITAL ........................................................... 19,105
--------
TOTAL LIABILITIES AND EQUITY CAPITAL $291,476
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
