Exhibit 4(b)
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AVISTA CORPORATION
TO
CITIBANK, N.A.
AS SUCCESSOR TRUSTEE UNDER
MORTGAGE AND DEED OF TRUST,
DATED AS OF JUNE 1, 1939
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_____________ SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR A SERIES OF BONDS DESIGNATED
"FIRST MORTGAGE BONDS, _____% SERIES DUE ____"
DUE ___________, ____
------------------------
Dated as of ___________, 200_
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_____________ SUPPLEMENTAL INDENTURE
THIS INDENTURE, dated as of the ___ day of _________ ____,
between AVISTA CORPORATION (formerly known as The Washington Water Power
Company), a corporation of the State of Washington, whose post office address is
0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (the "Company"), and
CITIBANK, N.A., formerly First National City Bank (successor by merger to First
National City Trust Company, formerly City Bank Farmers Trust Company), a
national banking association incorporated and existing under the laws of the
United States of America, whose post office address is 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Trustee"), as Trustee under the Mortgage and Deed of
Trust, dated as of June 1, 1939 (the "Original Mortgage"), executed and
delivered by the Company to secure the payment of bonds issued or to be issued
under and in accordance with the provisions thereof, this indenture (the
"________ Supplemental Indenture") being supplemental to the Original Mortgage,
as heretofore supplemented and amended.
WHEREAS pursuant to a written request of the Company made in
accordance with Section 103 of the Original Mortgage, Xxxxxxx X. Xxxx (then
Individual Trustee under the Mortgage, as supplemented) ceased to be a trustee
thereunder on July 23, 1969, and all of his powers as Individual Trustee have
devolved upon the Trustee and its successors alone; and
WHEREAS by the Original Mortgage the Company covenanted that
it would execute and deliver such further instruments and do such further acts
as might be necessary or proper to carry out more effectually the purposes of
the Original Mortgage and to make subject to the lien of the Original Mortgage
any property thereafter acquired intended to be subject to the lien thereof; and
WHEREAS the Company has heretofore executed and delivered, in
addition to the Original Mortgage, the indentures supplemental thereto, and has
issued the series of bonds, set forth in Exhibit A hereto (the Mortgage, as
supplemented and amended by the First through ________ Supplemental Indentures
being herein sometimes called collectively, the "Mortgage"); and
WHEREAS the Original Mortgage and the First through ________
Supplemental Indentures have been appropriately filed or recorded in various
official records in the States of Washington, California, Idaho, Montana and
Oregon, as set forth in the First through ________ Supplemental Indentures; and
WHEREAS the ____________ Supplemental Indenture, dated as of
______, ____ has been appropriately filed or recorded in the various official
records in the States of Washington, California, Idaho, Montana and Oregon set
forth in Exhibit B hereto; and
WHEREAS for the purpose of confirming or perfecting the lien
of the Mortgage on certain of its properties, the Company has heretofore
executed and delivered a Short Form Mortgage and Security Agreement, in multiple
counterparts dated as of various dates in 1992, and such instrument has been
appropriately filed or recorded in the various official records in the States of
California, Montana and Oregon; and
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WHEREAS for the purpose of confirming or perfecting the lien
of the Mortgage on certain of its properties, the Company has heretofore
executed and delivered an Instrument of Further Assurance dated as of December
15, 2001, and such instrument has been appropriately filed or recorded in the
various official records in the States of Washington, California, Idaho, Montana
and Oregon; and
WHEREAS in addition to the property described in the Mortgage
the Company has acquired certain other property, rights and interests in
property; and
WHEREAS Section 8 of the Original Mortgage provides that the
form of each series of bonds (other than the First Series) issued thereunder and
of the coupons to be attached to coupon bonds of such series shall be
established by Resolution of the Board of Directors of the Company; that the
form of such series, as established by said Board of Directors, shall specify
the descriptive title of the bonds and various other terms thereof; and that
such series may also contain such provisions not inconsistent with the
provisions of the Mortgage as the Board of Directors may, in its discretion,
cause to be inserted therein expressing or referring to the terms and conditions
upon which such bonds are to be issued and/or secured under the Mortgage; and
WHEREAS Section 120 of the Original Mortgage provides, among
other things, that any power, privilege or right expressly or impliedly reserved
to or in any way conferred upon the Company by any provision of the Mortgage,
whether such power, privilege or right is in any way restricted or is
unrestricted, may be in whole or in part waived or surrendered or subjected to
any restriction if at the time unrestricted or to additional restriction if
already restricted, and the Company may enter into any further covenants,
limitations or restrictions for the benefit of any one or more series of bonds
issued thereunder, or the Company may cure any ambiguity contained therein, or
in any supplemental indenture, by an instrument in writing executed and
acknowledged by the Company in such manner as would be necessary to entitle a
conveyance of real estate to record in all of the states in which any property
at the time subject to the lien of the Mortgage shall be situated; and
WHEREAS the Company now desires to create a new series of
bonds; and
WHEREAS the execution and delivery by the Company of this
_____________ Supplemental Indenture and the terms of the bonds of the _________
Series, hereinafter referred to, have been duly authorized by the Board of
Directors of the Company by appropriate Resolutions of said Board of Directors;
and all things necessary to make this _____________ Supplemental Indenture a
valid, binding and legal instrument have been performed;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That the Company,
in consideration of the premises and of other good and valuable consideration,
the receipt and sufficiency whereof are hereby acknowledged, hereby confirms the
estate, title and rights of the Trustee (including without limitation the lien
of the Mortgage on the property of the Company subjected thereto, whether now
owned or hereafter acquired) held as security for the payment of both the
principal of and interest and premium, if any, on the bonds from time to time
issued under the Mortgage according to their tenor and effect and the
performance of all the provisions of the Mortgage and of such bonds, and,
without limiting the generality of the foregoing, hereby
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confirms the grant, bargain, sale, release, conveyance, assignment, transfer,
mortgage, pledge, setting over and confirmation unto the Trustee, contained in
the Mortgage, of all the following described properties of the Company, whether
now owned or hereafter acquired, namely:
All of the property, real, personal and mixed, of every
character and wheresoever situated (except any hereinafter or
in the Mortgage expressly excepted) which the Company now owns
or, subject to the provisions of Section 87 of the Mortgage,
may hereafter acquire prior to the satisfaction and discharge
of the Mortgage, as fully and completely as if herein or in
the Mortgage specifically described, and including (without in
anywise limiting or impairing by the enumeration of the same
the scope and intent of the foregoing or of any general
description contained in Mortgage) all lands, real estate,
easements, servitudes, rights of way and leasehold and other
interests in real estate; all rights to the use or
appropriation of water, flowage rights, water storage rights,
flooding rights, and other rights in respect of or relating to
water; all plants for the generation of electricity, power
houses, dams, dam sites, reservoirs, flumes, raceways,
diversion works, head works, waterways, water works, water
systems, gas plants, steam heat plants, hot water plants, ice
or refrigeration plants, stations, substations, offices,
buildings and other works and structures and the equipment
thereof and all improvements, extensions and additions
thereto; all generators, machinery, engines, turbines,
boilers, dynamos, transformers, motors, electric machines,
switchboards, regulators, meters, electrical and mechanical
appliances, conduits, cables, pipes and mains; all lines and
systems for the transmission and distribution of electric
current, gas, steam heat or water for any purpose; all towers,
mains, pipes, poles, pole lines, conduits, cables, wires,
switch racks, insulators, compressors, pumps, fittings, valves
and connections; all motor vehicles and automobiles; all
tools, implements, apparatus, furniture, stores, supplies and
equipment; all franchises (except the Company's franchise to
be a corporation), licenses, permits, rights, powers and
privileges; and (except as hereinafter or in the Mortgage
expressly excepted) all the right, title and interest of the
Company in and to all other property of any kind or nature.
The property so conveyed or intended to be so conveyed under the Mortgage shall
include, but shall not be limited to, the property set forth in Exhibit C
hereto, the particular description of which is intended only to aid in the
identification thereof and shall not be construed as limiting the force, effect
and scope of the foregoing.
TOGETHER WITH all and singular the tenements, hereditaments
and appurtenances belonging or in anywise appertaining to the aforesaid property
or any part thereof, with the reversion and reversions, remainder and remainders
and (subject to the provisions of Section 57 of the Original Mortgage) the
tolls, rents, revenues, issues, earnings, income, product and profits thereof,
and all the estate, right, title and interest and claim whatsoever, at law as
well as in equity, which the Company now has or may hereafter acquire in and to
the aforesaid property and franchises and every part and parcel thereof.
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THE COMPANY HEREBY CONFIRMS that, subject to the provisions of
Section 87 of the Original Mortgage, all the property, rights, and franchises
acquired by the Company after the date thereof (except any hereinbefore or
hereinafter or in the Mortgage expressly excepted) are and shall be as fully
embraced within the lien of the Mortgage as if such property, rights and
franchises had been owned by the Company at the date of the Original Mortgage
and had been specifically described therein.
PROVIDED THAT the following were not and were not intended to
be then or now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, pledged, set over or confirmed under the
Mortgage and were, are and shall be expressly excepted from the lien and
operation namely: (l) cash, shares of stock and obligations (including bonds,
notes and other securities) not hereafter specifically pledged, paid, deposited
or delivered under the Mortgage or covenanted so to be; (2) merchandise,
equipment, materials or supplies held for the purpose of sale in the usual
course of business or for consumption in the operation of any properties of the
Company; (3) bills, notes and accounts receivable, and all contracts, leases and
operating agreements not specifically pledged under the Mortgage or covenanted
so to be; (4) electric energy and other materials or products generated,
manufactured, produced or purchased by the Company for sale, distribution or use
in the ordinary course of its business; and (5) any property heretofore released
pursuant to any provisions of the Mortgage and not heretofore disposed of by the
Company; provided, however, that the property and rights expressly excepted from
the lien and operation of the Mortgage in the above subdivisions (2) and (3)
shall (to the extent permitted by law) cease to be so excepted in the event that
the Trustee or a receiver or trustee shall enter upon and take possession of the
Mortgaged and Pledged Property in the manner provided in Article XII of the
Original Mortgage by reason of the occurrence of a Completed Default as defined
in said Article XII.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over or confirmed by the Company in the Mortgage as
aforesaid, or intended so to be, unto the Trustee, and its successors, heirs and
assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same
terms, trusts and conditions and subject to and with the same provisos and
covenants as set forth in the Mortgage, this _____________ Supplemental
Indenture being supplemental to the Mortgage.
AND IT IS HEREBY FURTHER CONFIRMED by the Company that all the
terms, conditions, provisos, covenants and provisions contained in the Mortgage
shall affect and apply to the property in the Mortgage described and conveyed,
and to the estates, rights, obligations and duties of the Company and the
Trustee and the beneficiaries of the trust with respect to said property, and to
the Trustee and its successors in the trust, in the same manner and with the
same effect as if the said property had been owned by the Company at the time of
the execution of the Original Mortgage, and had been specifically and at length
described in and conveyed to said Trustee by the Original Mortgage as a part of
the property therein stated to be conveyed.
The Company further covenants and agrees to and with the
Trustee and its successor or successors in such trust under the Mortgage, as
follows:
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ARTICLE I
_________ SERIES OF BONDS
SECTION 1. (I) There shall be a series of bonds designated
"First Mortgage Bonds, _____% Series due ____" (herein sometimes referred to as
the "bonds of the _________ Series" or the "Bonds"), and the form thereof, which
has been established by Resolution of the Board of Directors of the Company, is
set forth on Exhibit D hereto. The bonds of the ________ Series shall be issued
as fully registered bonds in denominations of One Thousand Dollars and, at the
option of the Company, any amount in excess thereof (the exercise of such option
to be evidenced by the execution and delivery thereof) and shall be dated as in
Section 10 of the Mortgage provided.
(II) The bonds of the _________ Series shall mature, shall
bear interest and shall be payable as set forth below:
(a) the principal of bonds of the _________ Series shall
(unless theretofor paid) be payable on the Stated Maturity Date (as
hereinafter defined);
(b) the bonds of the _________ Series shall bear interest
at the rate of _______________________ per centum (_____%) per
annum; interest on such bonds shall accrue from and including the
date of the initial authentication and delivery thereof, except as
otherwise provided in the form of bond attached hereto as Exhibit D;
interest on such bonds shall be payable on each Interest Payment
Date and at Maturity (as each of such terms is hereafter defined);
and interest on such bonds during any period for which payment is
made shall be computed on the basis of a 360-day year consisting of
twelve 30-days months;
(c) the principal of and premium, if any, and interest on
each bond of the ________ Series payable at Maturity shall be
payable upon presentation thereof at the office or agency of the
Company in the Borough of Manhattan, The City of New York, in such
coin or currency as at the time of payment is legal tender for
public and private debts. The interest on each bond of the _________
Series (other than interest payable at Maturity) shall be payable by
check, in similar coin or currency, mailed to the registered owner
thereof as of the close of business on the Record Date next
preceding each Interest Payment Date; provided, however, that if
such registered owner shall be a securities depositary, such payment
may be made by such other means in lieu of check as shall be agreed
upon by the Company, the Trustee and such registered owner.
(III) [Redemption provisions, if any]
(IV) (a) At the option of the registered owner, any bonds of
the ________ Series, upon surrender thereof for cancellation at the office or
agency of the Company in the Borough of Manhattan, The City of New York, shall
be exchangeable for a like aggregate principal amount of bonds of the same
series of other authorized denominations.
The bonds of the _________Series shall be transferable, upon
the surrender thereof for cancellation, together with a written instrument of
transfer in form approved by the
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registrar duly executed by the registered owner or by his duly authorized
attorney, at the office or agency of the Company in the Borough of Manhattan,
The City of New York.
Upon any exchange or transfer of bonds of the _________
Series, the Company may make a charge therefor sufficient to reimburse it for
any tax or taxes or other governmental charge, as provided in Section 12 of the
Mortgage, but the Company hereby waives any right to make a charge in addition
thereto or any exchange or transfer of bonds of the _________ Series; provided,
however, that the Company shall not be required to make any transfer or exchange
of any bonds of the _________ Series for a period of 10 days next preceding any
selection of such bonds for redemption, nor shall it be required to make
transfers or exchange of any bonds of the _________ Series which shall have been
selected for redemption in whole or in part or as to which the Company shall
have received a notice for the redemption thereof in whole or in part at the
option of the registered owner.
(b) The bonds of the _________ Series are initially to be
issued in global form, registered in the name of Cede & Co., as nominee for The
Depository Trust Company (the "Depositary"). Notwithstanding the provisions of
subdivision (a) above, such bonds shall not be transferable, nor shall any
purported transfer be registered, except as follows:
(i) such bonds may be transferred in whole, and
appropriate registration of transfer effected, 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;
(ii) such bonds may be transferred in whole, and
appropriate registration of transfer effected, to the
beneficial holders thereof, and thereafter shall be
transferable, if:
(A) The Depositary, or any successor securities
depositary, shall have notified the Company and the Trustee
that (I) it is unwilling or unable to continue to act as
securities depositary with respect to such bonds or (II) it
is no longer a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and, in either
case, the Trustee shall not have been notified by the
Company within one hundred twenty (120) days of the identity
of a successor securities depositary with respect to such
bonds; or
(B) the Company shall have delivered to the Trustee
a written order to the effect that such bonds shall be so
transferable on and after a date specified therein.
The bonds of the _________ Series, when in global form, shall
bear a legend as to such global form and the foregoing restrictions on transfer
substantially as set forth below:
This global bond is held by Cede & Co., as nominee for The
Depository Trust Company (the "Depositary") for the benefit of
the beneficial owners hereof. This bond may not be
transferred, nor may any purported transfer
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be registered, except that (i) this bond may be transferred in
whole, and appropriate registration of transfer effected, if
such transfer is by Cede & Co., as nominee for 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 bonds depositary or any nominee thereof; and
(ii) this bond may be transferred, and appropriate
registration of transfer effected, to the beneficial holders
hereof, and thereafter shall be transferable without
restrictions (except as provided in the preceding paragraph)
if: (A) the Depositary, or any successor securities
depositary, shall have notified the Company and the Trustee
that (I) it is unwilling or unable to continue to act as
securities depositary with respect to the bonds or (II) it is
no longer a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and, in either case, the
Trustee shall not have been notified by the Company within one
hundred twenty (120) days of the identity of a successor
securities depositary with respect to the bonds; or (B) the
Company shall have delivered to the Trustee a written order to
the effect that the bonds shall be so transferable on and
after a date specified therein.
(V) For all purposes of this _____________ Supplemental
Indenture, except as otherwise expressly provided or unless the context
otherwise requires, the terms and with respect to the bonds of the ________
Series listed below shall have the meanings specified:
"INTEREST PAYMENT DATE" means ________ and ________ in each
year, commencing _______, ____.
"MATURITY" means the date on which the principal of the bonds
of the _________ Series becomes due and payable, whether at the Stated Maturity
Date, upon redemption or acceleration, or otherwise.
"RECORD DATE", with respect to any Interest Payment Date,
means the __________ or _________, as the case may be, next preceding such
Interest Payment Date.
"STATED MATURITY DATE" means ____________, ____.
(VI) Notwithstanding the provisions of Section 106 of the
Original Mortgage, the Company shall not cause any bonds of the _________
Series, or any portion of the principal amount thereof, to be deemed to have
been paid as provided in such Section and its obligations in respect thereof to
be deemed to be satisfied and discharged prior to the Maturity thereof unless
the Company shall deliver to the Trustee either:
(a) an instrument wherein the Company, notwithstanding
the effect of Section 106 of the Original Mortgage in respect of
such bonds, shall assume the obligation (which shall be absolute and
unconditional) to irrevocably deposit with the Trustee such
additional sums of money, if any, or additional government
obligations (meeting the requirements of Section 106), if any, or
any combination thereof, at such
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time or times, as shall be necessary, together with the money and/or
government obligations theretofore so deposited, to pay when due the
principal of and premium, if any, and interest due and to become due
on such bonds or portions thereof, all in accordance with and
subject to the provisions of Section 106; provided, however, that
such instrument may state that the obligation of the Company to make
additional deposits as aforesaid shall be subject to the delivery to
the Company by the Trustee of a notice asserting the deficiency
accompanied by an opinion of an independent accountant showing the
calculation thereof (which opinion shall be obtained at the expense
of the Company); or
(b) an Opinion of Counsel to the effect that the holders
of such bonds, or portions of the principal amount thereof, will not
recognize income, gain or loss for United States federal income tax
purposes as a result of the satisfaction and discharge of the
Company's indebtedness in respect thereof and will be subject to
United States federal income tax on the same amounts, at the same
times and in the same manner as if such satisfaction and discharge
had not been effected.
(VII) The bonds of the _________ Series shall have such
further terms as are set forth in Exhibit D hereto. If there shall be a conflict
between the terms of the form of bond and the provisions of the Mortgage, the
provisions of the Mortgage shall control to the extent permitted by law.
(VIII) [Provisions as to title insurance, if any]
(IX) Upon the delivery of this _____________ Supplemental
Indenture, bonds of the _________ Series in an aggregate principal amount
initially not to exceed $__________ are to be issued and will be Outstanding, in
addition to $___________ aggregate principal amount of bonds of prior series
Outstanding at the date of delivery of this _____________ Supplemental
Indenture.
ARTICLE II
PROSPECTIVE AMENDMENT
SECTION 1. The owners of the bonds of the _________ Series
shall be deemed to have consented to the amendment of Section 28 of the Original
Mortgage to add at the end thereof a new paragraph reading as follows:
Notwithstanding the foregoing, any Opinion of Counsel
delivered pursuant to subdivision (7) of this Section 28, or pursuant to any
other provision of this Indenture by reference to this Section 28, may, at the
election of the Company, omit any or all of the statements contained in clause
(a) of subdivision (7) if there shall have been delivered to the Trustee a
policy of title insurance (or endorsement thereto) issued by a nationally
recognized title insurance company, in an amount not less than twenty-eight
percent (28%)(1) of the cost or fair
-----------------------
(1) The owners of the bonds of the _______ series shall be deemed to have
consented to the amendment contained in this Section 1 of Article II,
either with the percentage shown above or with any higher percentage.
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value to the Company (whichever is less) of the Property Additions made the
basis of such application, insuring, in customary terms, against risk of loss
sustained or incurred by the Trustee by reason of any circumstances or
conditions by virtue of which the statements omitted from clause (a) of such
Opinion of Counsel would not have been accurate if made.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 1. The terms defined in the Original Mortgage shall,
for all purposes of this ________ Supplemental Indenture, have the meanings
specified in the Original Mortgage.
SECTION 2. The Trustee hereby confirms its acceptance of the
trusts in the Original Mortgage declared, provided, created or supplemented and
agrees to perform the same upon the terms and conditions in the Original
Mortgage set forth, including the following:
The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this _____________
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made by the Company solely. Each and every term and
condition contained in Article XVI of the Original Mortgage, shall apply to and
form part of this _____________ Supplemental Indenture with the same force and
effect as if the same were herein set forth in full, with such omissions,
variations and insertions, if any, as may be appropriate to make the same
conform to the provisions of this _____________ Supplemental Indenture.
SECTION 3. Whenever in this _____________ Supplemental
Indenture either of the parties hereto is named or referred to, this shall,
subject to the provisions of Articles XV and XVI of the Original Mortgage be
deemed to include the successors and assigns of such party, and all the
covenants and agreements in this _____________ Supplemental Indenture contained
by or on behalf of the Company, or by or on behalf of the Trustee, or either of
them, shall, subject as aforesaid, bind and inure to the respective benefits of
the respective successors and assigns of such parties, whether so expressed or
not.
SECTION 4. Nothing in this ____________ Supplemental
Indenture, expressed or implied, is intended, or shall be construed, to confer
upon, or to give to, any person, firm or corporation, other than the parties
hereto and the holders of the bonds and coupons Outstanding under the Mortgage,
any right, remedy or claim under or by reason of this _____________ Supplemental
Indenture or any covenant, condition, stipulation, promise or agreement hereof,
and all the covenants, conditions, stipulations, promises and agreements in this
____________ Supplemental Indenture contained by or on behalf of the Company
shall be for the sole and exclusive benefit of the parties hereto, and of the
holders of the bonds and of the coupons Outstanding under the Mortgage.
SECTION 5. This _____________ Supplemental Indenture shall be
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
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SECTION 6. The titles of the several Articles of this
_____________ Supplemental Indenture shall not be deemed to be any part thereof.
------------------------
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IN WITNESS WHEREOF, on the ___ day of ________ ____, AVISTA
CORPORATION has caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its President or one of its Vice
Presidents, and its corporate seal to be attested by its Corporate Secretary or
one of its Assistant Corporate Secretaries for and in its behalf, all in The
City of Spokane, Washington, as of the day and year first above written; and on
the ____ day of _________ ____, CITIBANK, N.A., has caused its corporate name to
be hereunto affixed, and this instrument to be signed and sealed by its
President or one of its Vice Presidents or one of its Senior Trust Officers or
one of its Trust Officers and its corporate seal to be attested by one of its
Vice Presidents or one of its Trust Officers, all in The City of New York, New
York, as of the day and year first above written.
AVISTA CORPORATION
By
----------------------------------
Vice President
Attest:
-----------------------------------
Corporate Secretary
Executed, sealed and delivered
by AVISTA CORPORATION
in the presence of:
-----------------------------------
-----------------------------------
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CITIBANK, N.A., AS TRUSTEE
By
----------------------------------
Attest:
-----------------------------------
Executed, sealed and delivered
by CITIBANK, N.A.
as trustee, in the presence of:
-----------------------------------
-----------------------------------
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STATE OF WASHINGTON )
) ss.:
COUNTY OF SPOKANE )
On the ___ day of _________ ____, before me personally
appeared ______________, to me known to be a [Vice President] of AVISTA
CORPORATION, one of the corporations that executed the within and foregoing
instrument, and acknowledged said instrument to be the free and voluntary act
and deed of said Corporation for the uses and purposes therein mentioned and on
oath stated that he was authorized to execute said instrument and that the seal
affixed is the corporate seal of said Corporation.
On the ___ day of _________ ____, before me, a Notary Public
in and for the State and County aforesaid, personally appeared ______________,
known to me to be a [Vice President] of AVISTA CORPORATION, one of the
corporations that executed the within and foregoing instrument and acknowledged
to me that such Corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
------------------------------
Notary Public
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ______________, before me personally
appeared __________ to me known to be a [Vice President] of CITIBANK, N.A., one
of the corporations that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of said
Corporation for the uses and purposes therein mentioned and on oath stated that
he was authorized to execute said instrument and that the seal affixed is the
corporate seal of said Corporation.
On the _____ day of _______________, before me, a Notary
Public in and for the State and County aforesaid, personally appeared
__________, known to me to be a [Vice President] of CITIBANK, N.A., one of the
corporations that executed the within and foregoing instrument and acknowledged
to me that such Corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
------------------------------
Notary Public
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EXHIBIT A
MORTGAGE, SUPPLEMENTAL INDENTURES
AND SERIES OF BONDS
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MORTGAGE OR DATED AS OF SERIES PRINCIPAL PRINCIPAL
SUPPLEMENTAL ------------------------------ AMOUNT AMOUNT
INDENTURE NO. DESIGNATION ISSUED OUTSTANDING
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Original June 1, 1939 1 3-1/2% Series due 1964 $22,000,000 None
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First October 1, 1952 2 3-3/4% Series due 1982 30,000,000 None
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Second May 1, 1953 3 3-7/8% Series due 1983 10,000,000 None
--------------------------------------------------------------------------------------------------------------------
Third December 1, 1955 None
--------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx 00, 0000 Xxxx
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Fifth July 1, 1957 4 4-7/8% Series due 1987 30,000,000 None
--------------------------------------------------------------------------------------------------------------------
Sixth January 1, 1958 5 4-1/8% Series due 1988 20,000,000 None
--------------------------------------------------------------------------------------------------------------------
Seventh August 1, 1958 6 4-3/8% Series due 1988 15,000,000 None
--------------------------------------------------------------------------------------------------------------------
Eighth January 1, 1959 7 4-3/4% Series due 1989 15,000,000 None
--------------------------------------------------------------------------------------------------------------------
Ninth January 1, 1960 8 5-3/8% Series due 1990 10,000,000 None
--------------------------------------------------------------------------------------------------------------------
Tenth April 1, 1964 9 4-5/8% Series due 1994 30,000,000 None
--------------------------------------------------------------------------------------------------------------------
Eleventh March 1,1965 10 4-5/8% Series due 1995 10,000,000 None
--------------------------------------------------------------------------------------------------------------------
Twelfth May 1, 1966 None
--------------------------------------------------------------------------------------------------------------------
Thirteenth August 1, 1966 11 6 % Series due 1996 20,000,000 None
--------------------------------------------------------------------------------------------------------------------
Fourteenth April 1, 1970 12 9-1/4% Series due 2000 20,000,000 None
--------------------------------------------------------------------------------------------------------------------
Fifteenth May 1, 1973 13 7-7/8% Series due 2003 20,000,000 None
--------------------------------------------------------------------------------------------------------------------
Sixteenth February 1, 1975 14 9-3/8% Series due 2005 25,000,000 None
--------------------------------------------------------------------------------------------------------------------
Seventeenth November 1, 1976 15 8-3/4% Series due 2006 30,000,000 None
--------------------------------------------------------------------------------------------------------------------
Xxxxxxxxxx Xxxx 0, 0000 Xxxx
--------------------------------------------------------------------------------------------------------------------
Nineteenth January 1, 1981 16 14-1/8% Series due 1991 40,000,000 None
--------------------------------------------------------------------------------------------------------------------
Twentieth August 1, 1982 17 15-3/4% Series due 60,000,000 None
--------------------------------------------------------------------------------------------------------------------
Twenty-First September 1, 1983 18 13-1/2% Series due 2013 60,000,000 None
--------------------------------------------------------------------------------------------------------------------
Twenty-Second March 1, 1984 19 13-1/4% Series due 1994 60,000,000 None
--------------------------------------------------------------------------------------------------------------------
Twenty-Third December 1, 1986 20 9-1/4% Series due 2016 80,000,000 None
--------------------------------------------------------------------------------------------------------------------
Twenty-Fourth January 1, 1988 21 10-3/8% Series due 2018 50,000,000 None
--------------------------------------------------------------------------------------------------------------------
Twenty-Fifth October 1, 1989 22 7-1/8% Series due 2013 66,700,000 None
--------------------------------------------------------------------------------------------------------------------
23 7-2/5% Series due 2016 17,000,000 None
--------------------------------------------------------------------------------------------------------------------
Twenty-Sixth April 1, 1993 24 Secured Medium-Term 250,000,000 $104,500,000
Notes, Series A
($250,000,000
authorized)
--------------------------------------------------------------------------------------------------------------------
Twenty-Seventh January 1, 1994 25 Secured Medium-Term 161,000,000 59,000,000
Notes, Series B
($250,000,000
authorized)
--------------------------------------------------------------------------------------------------------------------
Twenty-Eighth September 1, 2001 26 Collateral Series due 220,000,000 None
2002
--------------------------------------------------------------------------------------------------------------------
Twenty-Ninth December 1, 2001 27 7.75% Series due 2007 150,000,000 150,000,000
--------------------------------------------------------------------------------------------------------------------
Thirtieth May 1, 2002 28 Collateral Series due 225,000,000 None
2003
--------------------------------------------------------------------------------------------------------------------
Thirty-First May 1, 2003 29 Collateral Series due 245,000,000 245,000,000
2004
--------------------------------------------------------------------------------------------------------------------
Thirty-Second September 1, 2003 30 6.125% Series due 2013 45,000,000 45,000,000
--------------------------------------------------------------------------------------------------------------------
A-1
EXHIBIT B
FILING AND RECORDING OF
SUPPLEMENTAL INDENTURE
FILING IN STATE OFFICES
--------------------------------------------------------------------------------------------------------------------
FINANCING STATEMENT
STATE OFFICE OF DATE DOCUMENT NUMBER
--------------------------------------------------------------------------------------------------------------------
Washington Secretary of State
--------------------------------------------------------------------------------------------------------------------
Idaho Secretary of State
--------------------------------------------------------------------------------------------------------------------
Montana Secretary of State
--------------------------------------------------------------------------------------------------------------------
Oregon Secretary of State
--------------------------------------------------------------------------------------------------------------------
California Secretary of State
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
RECORDING IN COUNTY OFFICES
--------------------------------------------------------------------------------------------------------------------
FINANCING
REAL ESTATE MORTGAGE RECORDS STATEMENT
DOCUMENT
COUNTY OFFICE OF NUMBER
--------------------------------------------------------------------------------------------------------------------
DATE DOCUMENT BOOK PAGE
NUMBER
--------------------------------------------------------------------------------------------------------------------
WASHINGTON N/A N/A N/A
Xxxxx Auditor
--------------------------------------------------------------------------------------------------------------------
Asotin Auditor N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Xxxxxx Auditor N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Xxxxxxx Auditor N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Ferry Auditor N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Franklin Auditor N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Garfield Auditor N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Grant Auditor N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Klickitat Auditor N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Xxxxx Auditor N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Lincoln Auditor N/A
--------------------------------------------------------------------------------------------------------------------
Pend Oreille Auditor N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Skamania Auditor N/A
--------------------------------------------------------------------------------------------------------------------
Spokane Auditor N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Xxxxxxx Auditor N/A
--------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Auditor N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Xxxxxxx Auditor N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
CALIFORNIA
El Dorado Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
IDAHO N/A N/A N/A
Benewah Recorder
--------------------------------------------------------------------------------------------------------------------
Xxxxxx Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Boundary Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Clearwater Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Idaho Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Kootenai Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Latah Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Xxxxx Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Nez Perce Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Shoshone Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
B-1
--------------------------------------------------------------------------------------------------------------------
RECORDING IN COUNTY OFFICES
--------------------------------------------------------------------------------------------------------------------
FINANCING
REAL ESTATE MORTGAGE RECORDS STATEMENT
DOCUMENT
COUNTY OFFICE OF NUMBER
--------------------------------------------------------------------------------------------------------------------
DATE DOCUMENT BOOK PAGE
NUMBER
--------------------------------------------------------------------------------------------------------------------
MONTANA
Big Horn Clerk & Recorder N/A
--------------------------------------------------------------------------------------------------------------------
Xxxxxxxxxx Clerk & Recorder N/A
--------------------------------------------------------------------------------------------------------------------
Golden Valley Clerk & Recorder N/A
--------------------------------------------------------------------------------------------------------------------
Xxxxxxx Clerk & Recorder N/A
--------------------------------------------------------------------------------------------------------------------
Mineral Clerk & Recorder N/A
--------------------------------------------------------------------------------------------------------------------
Rosebud Clerk & Recorder N/A
--------------------------------------------------------------------------------------------------------------------
Xxxxxxx Clerk & Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Stillwater Clerk & Recorder N/A N/A
--------------------------------------------------------------------------------------------------------------------
Treasure Clerk & Recorder N/A
--------------------------------------------------------------------------------------------------------------------
Wheatland Clerk & Recorder N/A
--------------------------------------------------------------------------------------------------------------------
Yellowstone Clerk & Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
OREGON
Xxxxxxx Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Xxxxxxx Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Xxxxxxxxx Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Klamath Recorder N/A
--------------------------------------------------------------------------------------------------------------------
Xxxxxx Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Union Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
Wallowa Recorder N/A N/A N/A
--------------------------------------------------------------------------------------------------------------------
B-2
EXHIBIT C
PROPERTY ADDITIONS
C-1
EXHIBIT D
(FORM OF BOND)
THIS BOND IS SUBJECT TO RESTRICTIONS ON TRANSFER,
AS HEREINAFTER SET FORTH
CUSIP ________________
AVISTA CORPORATION
First Mortgage Bond,
_____% Series due ______
REGISTERED REGISTERED
NO. _________________ $___________________
AVISTA CORPORATION, a corporation of the State of Washington
(hereinafter called the Company), for value received, hereby promises to pay to
, or registered assigns, on _______________________,
DOLLARS
and to pay the registered owner hereof interest thereon from ____________
semi-annually in arrears on ______________ and ________________ in each year
(each such date being hereinafter called an "Interest Payment Date"), commencing
___________________ and at Maturity (as hereinafter defined), at the rate of
________ per centum (__%) per annum computed on the basis of a 360-day year
consisting of twelve 30-day months, until the Company's obligation with respect
to the payment of such principal shall have been discharged. The principal of
and premium, if any, and interest on this bond payable at Maturity shall be
payable upon presentation hereof at the office or agency of the Company in the
Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for public
and private debts. The interest on this bond (other than interest payable at
Maturity) shall be paid by check, in the similar coin or currency, mailed to the
registered owner hereof as of the close of business on the _______________ or
_____________, as the case may be, next preceding each Interest Payment Date
(each such date being herein called a "Record Date"); provided, however, that if
such registered owner shall be a securities depositary, such payment shall be
made by such other means in lieu of check as shall be agreed upon by the
Company, the Trustee and such registered owner. Interest payable at Maturity
shall be paid to the person to whom principal shall be paid. As used herein, the
term "Maturity" shall mean the date on which the principal of this bond becomes
due and payable, whether at stated maturity, upon redemption or acceleration, or
otherwise.
This bond is one of an issue of bonds of the Company issuable
in series and is one of a series known as its First Mortgage Bonds, _____%
Series due ____, all bonds of all such series being issued and issuable under
and equally secured (except insofar as any sinking or other fund, established in
accordance with the provisions of the Mortgage hereinafter mentioned, may afford
additional security for the bonds of any particular series) by a Mortgage and
Deed of Trust, dated as of June 1, 1939, executed by the Company (formerly known
as The Washington Water Power Company) to City Bank Farmers Trust Company and
Xxxxx X. Xxxxxx, as Trustees (Citibank, N.A., successor Trustee to both said
Trustees). Such mortgage and deed of trust has been amended and supplemented by
various supplemental indentures, including the _____________ Supplemental
Indenture, dated as of ___________, ____ (the "_____________ Supplemental
Indenture") and, as so amended and supplemented, is herein called the
"Mortgage". Reference is made to the Mortgage for a description of the property
mortgaged and pledged, the nature and extent of the security, the rights of the
holders of the bonds and of the Trustee in respect thereof, the duties and
immunities of the Trustee and the terms and conditions upon which the bonds are
and are to be secured and the circumstances under which additional bonds may be
issued. If there shall be a conflict between the terms of this bond and the
provisions of the Mortgage, the provisions of the Mortgage shall control to the
extent permitted by law. The holder of this bond, by its acceptance hereof,
shall be deemed to have consented and agreed to all of the terms and provisions
of the Mortgage and, further, in the event that such holder shall not be the
sole beneficial owner of this bond, shall be deemed to have agreed to use all
commercially reasonable efforts to cause all direct and indirect beneficial
owners of this bond to have knowledge of the terms and provisions of the
Mortgage and of this bond and to comply therewith, including particularly, but
without limitation, any provisions or restrictions in the Mortgage regarding the
transfer or exchange of such beneficial interests and any legend set forth on
this bond.
The Mortgage may be modified or altered by affirmative vote of
the holders of at least 60% in principal amount of the bonds outstanding under
the Mortgage, considered as one class, or, if the rights of one or more, but
less than all, series of bonds then outstanding are to be affected, then such
modification or alteration may be effected with the affirmative vote only of 60%
in principal amount of the bonds outstanding of the series so to be affected,
considered as one class, and, furthermore, for limited purposes, the Mortgage
may be modified or altered without any consent or other action of holders of any
series of bonds. No modification or alteration shall, however, permit an
extension of the Maturity of the principal of, or interest on, this bond or a
reduction in such principal or the rate of interest hereon or any other
modification in the terms of payment of such principal or interest or the
creation of any lien equal or prior to the lien of the Mortgage or deprive the
holder of a lien on the mortgaged and pledged property without the consent of
the holder hereof.
The principal hereof may be declared or may become due prior
to the stated maturity date on the conditions, in the manner and at the time set
forth in the Mortgage, upon the occurrence of a completed default as in the
Mortgage provided.
D-2
As provided in the Mortgage and subject to certain limitations
therein set forth, this bond or any portion of the principal amount hereof will
be deemed to have been paid if there has been irrevocably deposited with the
Trustee moneys or direct obligations of or obligations guaranteed by the United
States of America, the principal of and interest on which when due, and without
regard to any reinvestment thereof, will provide moneys which, together with
moneys so deposited, will be sufficient to pay when due the principal of and
premium, if any, and interest on this bond when due.
The Mortgage contains terms, provisions and conditions
relating to the consolidation or merger of the Company with or into, and the
conveyance or other transfer, or lease, of assets to, another Corporation and to
the assumption by such other Corporation, in certain circumstances, of all of
the obligations of the Company under the Mortgage and on the bonds secured
thereby.
In the manner prescribed in the Mortgage, this bond is
transferable by the registered owner hereof in person, or by his duly authorized
attorney, at the office or agency of the Company in the Borough of Manhattan,
The City of New York, upon surrender and cancellation of this bond, together
with a written instrument of transfer whenever required by the Company duly
executed by the registered owner or by its duly authorized attorney, and,
thereupon, a new fully registered bond of the same series for a like principal
amount will be issued to the transferee in exchange herefor as provided in the
Mortgage. The Company and the Trustee may deem and treat the person in whose
name this bond is registered as the absolute owner hereof for the purpose of
receiving payment and for all other purposes.
In the manner prescribed in the Mortgage, any bonds of this
series, upon surrender thereof for cancellation at the office or agency of the
Company in the Borough of Manhattan, The City of New York, are exchangeable for
a like aggregate principal amount of bonds of the same series of other
authorized denominations.
[Redemption provisions, if any]
No recourse shall be had for the payment of the principal of
or interest on this bond against any incorporator or any past, present or future
subscriber to the capital stock, stockholder, officer or director of the Company
or of any predecessor or successor corporation, as such, either directly or
through the Company or any predecessor or successor corporation, under any rule
of law, statute or constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, subscribers, stockholders,
officers and directors being released by the holder or owner hereof by the
acceptance of this bond and being likewise waived and released by the terms of
the Mortgage.
This bond shall not become obligatory until Citibank, N.A.,
the Trustee under the Mortgage, or its successor thereunder, shall have signed
the form of certificate endorsed hereon.
D-3
IN WITNESS WHEREOF, AVISTA CORPORATION has caused this bond to
be signed in its corporate name by its President or one of its Vice Presidents
by his signature or a facsimile thereof, and its corporate seal to be impressed
or imprinted hereon and attested by its Corporate Secretary or one of its
Assistant Corporate Secretaries by his signature or a facsimile thereof.
Dated: AVISTA CORPORATION
By:
------------------------------
ATTEST:
-----------------------
D-4
TRUSTEE'S CERTIFICATE
This bond is one of the bonds, of the series herein
designated, described or provided for in the within-mentioned Mortgage.
CITIBANK, N.A.
Trustee
By
---------------------------------
Authorized Officer
D-5
THIS GLOBAL BOND IS HELD BY CEDE & CO., AS NOMINEE FOR THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF. THIS BOND MAY NOT BE TRANSFERRED, NOR MAY ANY PURPORTED TRANSFER
BE REGISTERED, EXCEPT THAT (I) THIS BOND MAY BE TRANSFERRED IN WHOLE, AND
APPROPRIATE REGISTRATION OF TRANSFER EFFECTED, IF SUCH TRANSFER IS BY CEDE &
CO., AS NOMINEE FOR 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
BONDS DEPOSITARY OR ANY NOMINEE THEREOF; AND (II) THIS BOND MAY BE TRANSFERRED,
AND APPROPRIATE REGISTRATION OF TRANSFER EFFECTED, TO THE BENEFICIAL HOLDERS
HEREOF, AND THEREAFTER SHALL BE TRANSFERABLE WITHOUT RESTRICTIONS (EXCEPT AS
PROVIDED IN THE PRECEDING PARAGRAPH) IF: (A) THE DEPOSITARY, OR ANY SUCCESSOR
SECURITIES DEPOSITARY, SHALL HAVE NOTIFIED THE COMPANY AND THE TRUSTEE THAT (I)
IT IS UNWILLING OR UNABLE TO CONTINUE TO ACT AS SECURITIES DEPOSITARY WITH
RESPECT TO THE BONDS OR (II) IT IS NO LONGER A CLEARING AGENCY REGISTERED UNDER
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, AND, IN EITHER CASE, THE
TRUSTEE SHALL NOT HAVE BEEN NOTIFIED BY THE COMPANY WITHIN ONE HUNDRED TWENTY
(120) DAYS OF THE IDENTITY OF A SUCCESSOR SECURITIES DEPOSITARY WITH RESPECT TO
THE BONDS; OR (B) THE COMPANY SHALL HAVE DELIVERED TO THE TRUSTEE A WRITTEN
ORDER TO THE EFFECT THAT THE BONDS SHALL BE SO TRANSFERABLE ON AND AFTER A DATE
SPECIFIED THEREIN.
D-6
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 bond of AVISTA CORPORATION and does hereby irrevocably constitute and
appoint , Attorney, to transfer said bond on the books of the within-mentioned
Company, will 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 bond in every
particular without alteration or
enlargement or any change whatsoever.
D-7
