EXHIBIT 4.1
CONFORMED COPY
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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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THIRTY-FOURTH SUPPLEMENTAL INDENTURE
Providing among other things for a Series of Bonds designated
"First Mortgage Bonds, 5.45% Series due 2019"
Due December 1, 2019
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Dated as of November 1, 2004
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THIRTY-FOURTH SUPPLEMENTAL INDENTURE
THIS INDENTURE, dated as of the 1st day of November, 2004, 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 Xxxxxxxxx Xxxxxx - 14th Floor, New
York, New York 10013 (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
"Thirty-fourth 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 Thirty-third Supplemental
Indentures being herein sometimes called the "Mortgage"); and
WHEREAS the Original Mortgage and the First through Thirty-second
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 Thirty-third Supplemental Indentures
and the Instrument of Further Assurance, dated December 15, 2001, hereinafter
referred to; and
WHEREAS the Thirty-third Supplemental Indenture, dated as of May 1,
2004 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
Thirty-fourth Supplemental Indenture and the terms of the Bonds of the
Thirty-second 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 Thirty-fourth 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 Original 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.
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
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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 Thirty-fourth 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
THIRTY-SECOND SERIES OF BONDS
SECTION 1. (I) (I) There shall be a Series of Bonds designated
"First Mortgage Bonds, 5.45% Series due 2019" (herein sometimes referred
to as the "Bonds of the Thirty-second Series"), each of which shall also
bear the descriptive title First Mortgage Bond 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 Thirty-second
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 Thirty-second Series shall mature, shall bear
interest and shall be payable as set forth below:
(a) the principal of Bonds of the Thirty-second Series shall
(unless theretofor paid) be payable on the Stated Maturity Date (as
hereinafter defined);
(b) the Bonds of the Thirty-second Series shall bear
interest at the rate of five and forty-five one hundredths percentum
(5.45%) 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 Thirty-second 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
Thirty-second 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.
(d) The Bonds of the Thirty-second Series shall be
redeemable in whole at any time, or in part from time to time, at
the option of the Company at a redemption price equal to the greater
of
(i) 100% of the principal amount of the Bonds being
redeemed and
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(ii) the sum of the present values of the remaining
scheduled payments of principal of and interest on the Bonds
being redeemed discounted to the date of redemption on a
semiannual basis (assuming a 360-day year consisting of twelve
30-day months) at a discount rate equal to the Treasury Yield
(as hereinafter defined) plus 20 basis points,
plus, in the case of either (i) or (ii) above, whichever is applicable, accrued
interest on such Bonds to the date of redemption.
(e) (i) "Treasury Yield" means, with respect to any
redemption of Bonds of the Thirty-second Series, the rate per annum
equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price. The Treasury Yield shall be
calculated as of the third business day preceding the redemption
date or, if the Bonds to be redeemed are to be caused to be deemed
to have been paid within the meaning of Section 106 of the Original
Mortgage prior to the redemption date, then as of the third business
day prior to the earlier of (x) the date notice of such redemption
is mailed to bondholders pursuant to Section 52 of the Original
Mortgage and (y) the date irrevocable arrangements with the Trustee
for the mailing of such notice shall have been made, as the case may
be (the "Calculation Date").
(ii) "Comparable Treasury Issue" means the United
States Treasury security selected by an Independent Investment
Banker as having a maturity comparable to the remaining term
of the Bonds of the Thirty-second Series that would be
utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the
remaining term of the Bonds.
(iii) "Comparable Treasury Price" means, (A) the average
of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal
amount) on the third business day preceding the Calculation
Date, as set forth in the H.15 Daily Update of the Federal
Reserve Bank of New York or (B) if such release (or any
successor release) is not published or does not contain such
prices on such business day, the Reference Treasury Dealer
Quotation for the Calculation Date.
(iv) "H.15(519)" means the weekly statistical release
entitled "Statistical Release H.15 (519)", or any successor
publication, published by the Board of Governors of the
Federal Reserve System.
(v) "H.15 Daily Update" means the daily update of
H.15(519) available through the worldwide website of the Board
of Governors of the Federal Reserve System or any successor
site or publication.
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(vi) "Independent Investment Banker" means Xxxxxxx,
Sachs & Co. or an independent investment banking institution
of national standing appointed by the Company and reasonably
acceptable to the Trustee.
(vii) "Reference Treasury Dealer Quotation" means, with
respect to the Reference Treasury Dealer, the average, as
determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount and quoted in writing to
the Trustee by such Reference Treasury Dealer at 5:00 p.m. on
the third business day preceding the Calculation Date).
(viii) "Reference Treasury Dealer" means a primary U.S.
Government securities dealer in New York City appointed by the
Company and reasonably acceptable to the Trustee.
(III) (a) At the option of the registered owner, any Bonds of the
Thirty-second 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 Thirty-second Series shall be transferable, upon
the surrender thereof for cancellation, together with a written instrument of
transfer in form approved by the 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 Thirty-second 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 Thirty-second Series; provided,
however, that the Company shall not be required to make any transfer or exchange
of any Bonds of the Thirty-second 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 Thirty-second 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 Thirty-second 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
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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 Thirty-second 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 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.
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(IV) For all purposes of this Thirty-fourth Supplemental Indenture,
except as otherwise expressly provided or unless the context otherwise
requires, the terms and with respect to the Bonds of the Thirty-second
Series listed below shall have the meanings specified:
"Interest Payment Date" means June 1 and December 1 in each year,
commencing June 1, 2005.
"Maturity" means the date on which the principal of the Bonds of the
Thirty-second 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
May 15 or November 15, as the case may be, next preceding such Interest
Payment Date.
"Stated Maturity Date" means December 1, 2019.
(V) Notwithstanding the provisions of Section 106 of the Original
Mortgage, the Company shall not cause any Bonds of the Thirty-second
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 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.
(VI) The Bonds of the Thirty-second 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
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bond and the provisions of the Mortgage, the provisions of the Mortgage
shall control to the extent permitted by law.
(VII) Prior, and as a condition, to the authentication and delivery
by the Trustee of the Bonds of the Thirty-second Series, the Company shall
have delivered to the Trustee an endorsement to the policy of title
insurance on the Mortgaged and Pledged Property held by the Trustee
increasing the face amount of such policy by $90,000,000 to $90,000,000.
The Trustee shall hold such policy, as so endorsed, as part of the
Mortgaged and Pledged Property, for the benefit of the holders from time
to time of the Bonds Outstanding under the Mortgage. The proceeds of such
insurance shall be applied as provided in clause (3) or (4) of Section 61
of the Original Mortgage or, if all Bonds shall have been declared
immediately due and payable pursuant to Section 65 of the Original
Mortgage following the occurrence of a Completed Default, as provided in
clauses second and third of Section 75 of the Original Mortgage.
(VIII) Upon the delivery of this Thirty-fourth Supplemental
Indenture, Bonds of the Thirty-second Series in an aggregate principal
amount initially not to exceed $90,000,000 are to be issued and will be
Outstanding, in addition to $693,500,000 aggregate principal amount of
Bonds of prior Series Outstanding at the date of delivery of this
Thirty-fourth Supplemental Indenture.
ARTICLE II
PROSPECTIVE AMENDMENT
SECTION 1. The owners of the Bonds of the Thirty-second 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 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.
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(1) The owners of the Bonds of the Thirty-second 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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ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 1. The terms defined in the Original Mortgage shall, for all
purposes of this Thirty-fourth 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 Thirty-fourth 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 Thirty-fourth 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 Thirty-fourth Supplemental Indenture.
SECTION 3. Whenever in this Thirty-fourth 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 Thirty-fourth 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 Thirty-fourth 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 Thirty-fourth Supplemental Indenture
or any covenant, condition, stipulation, promise or agreement hereof, and all
the covenants, conditions, stipulations, promises and agreements in this
Thirty-fourth 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 Thirty-fourth 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.
SECTION 6. The titles of the several Articles of this Thirty-fourth
Supplemental Indenture shall not be deemed to be any part thereof.
12
IN WITNESS WHEREOF, on the 23rd day of November, 2004, 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 23rd day of November, 2004, 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 /s/ Xxxxxxx Xxxxxxxxxx-Xxxxx
---------------------------------
Vice President
Attest:
/s/ Xxxxx X. Xxxxx
-----------------------------------
Assistant Corporate Secretary
Executed, sealed and delivered
by AVISTA CORPORATION
in the presence of:
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx
13
CITIBANK, N.A., AS TRUSTEE
By /s/ Xxxxx Xxxx
------------------------------------
Xxxxx Xxxx
Vice President
Attest:
/s/ Xxxxx Xxxxx
--------------------------------------
Xxxxx Xxxxx - Assistant Vice President
Executed, sealed and delivered
by CITIBANK, N.A.,
as trustee. in the presence of:
/s/ Xxxx X. Xxxxxx
--------------------------------------
Xxxx X. Xxxxxx
/s/ X.X. Xxxxxxxx
--------------------------------------
X.X. Xxxxxxxx
14
STATE OF WASHINGTON )
) ss.:
COUNTY OF SPOKANE )
On the 23rd day of November, 2004, before me personally appeared
Xxxxxxx Xxxxxxxxxx-Xxxxx, 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 23rd day of November, 2004, before me, a Notary Public in and
for the State and County aforesaid, personally appeared Xxxxxxx
Xxxxxxxxxx-Xxxxx, 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.
/s/ Xxxxx X. Xxxxxxxxxx
---------------------------------------
Notary Public
Xxxxx X. Xxxxxxxxxx
Notary Public
State of Washington
Commission Expires June 17, 2005
15
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 17th day of November, 2004 before me personally appeared
Xxxxx Xxxx, 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 17th day of November, 2004, before me, a Notary Public in and
for the State and County aforesaid, personally appeared Xxxxx Xxxx, 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.
/s/ Xxxxxxx Xxxxxx
---------------------------------------
Notary Public
XXXXXXX XXXXXX
Notary Public, State of New York
No. 01MU6086415
Qualified in Kings County
Commission Expires 1/21/07
16
EXHIBIT A
MORTGAGE, SUPPLEMENTAL INDENTURES
AND SERIES OF BONDS
MORTGAGE OR PRINCIPAL PRINCIPAL
SUPPLEMENTAL DATED AS SERIES AMOUNT AMOUNT
INDENTURE OF NO. DESIGNATION ISSUED OUTSTANDING
-------------- ----------------- --- -------------------------- ------------ -----------
Original June 1, 1939 1 3-1/2% Series due 1964 $ 22,000,000 None
First October 1, 1952 2 3-3/4% Series due 1982 30,000,000 None
Second May 1, 1953 3 3-7/8% Series due 1983 10,000,000 None
Third December 1, 1955 None
Xxxxxx Xxxxx 00, 0000 Xxxx
Xxxxx 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
Eighteenth June 1, 1980 None
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 1990- 60,000,000 None
1992
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 $89,500,000
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 2002 220,000,000 None
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 2003 225,000,000 None
Thirty-first May 1, 2003 29 Collateral Series due 2004 245,000,000 None
Thirty-second September 1, 2003 30 6.125% Series due 2013 45,000,000 45,000,000
Thirty-third May 1, 2004 31 Collateral Series due 2005 350,000,000 350,000,000
A-1
EXHIBIT B
FILING AND RECORDING OF
THIRTY-THIRD SUPPLEMENTAL INDENTURE
FILING IN STATE OFFICES
FINANCING STATEMENT
STATE OFFICE OF DATE DOCUMENT NUMBER
---------- ------------------ ------- -------------------
Washington Secretary of State 6/21/04 2004-174-9175-4
Idaho Secretary of State 6/21/04 B-2004-0967397-2
Montana Secretary of State 6/21/04 78494597
Oregon Secretary of State 6/22/04 6609543
California Secretary of State 6/23/04 418160259
RECORDING IN COUNTY OFFICES
----------------------------------------------------------------------------------------------
REAL ESTATE MORTGAGE RECORDS FINANCING
------------------------------------------- STATEMENT
DOCUMENT DOCUMENT
COUNTY OFFICE OF DATE NUMBER BOOK PAGE NUMBER
-------------- ---------------- ------- --------------- ---- ----- ---------
Washington 6/21/04 274021 N/A N/A N/A
Xxxxx Auditor
Asotin Auditor 6/21/04 277101 N/A N/A N/A
Xxxxxx Auditor 6/21/04 2004-021759 N/A N/A N/A
Xxxxxxx Auditor 6/21/04 3074930 N/A N/A N/A
Ferry Auditor 6/21/04 259319 N/A N/A N/A
Franklin Auditor 6/28/04 1646744 N/A N/A N/A
Garfield Auditor 6/21/04 0000 X/X X/X X/X
Grant Auditor 6/21/04 1150966 N/A N/A N/A
Klickitat Auditor 6/21/04 1046602 N/A N/A N/A
Xxxxx Auditor 6/21/04 3199421 N/A N/A N/A
Lincoln Auditor 6/21/04 2004-0433402 85 1555 N/A
Pend Oreille Auditor 6/21/04 2004-0275595 N/A N/A N/A
Skamania Auditor 6/22/04 2004-153446 N/A N/A N/A
Spokane Auditor 6/25/04 5089057 N/A N/A N/A
Xxxxxxx Auditor 6/21/04 2004-0006679 312 1354 N/A
Xxxxxxxx Auditor 6/22/04 3651700 N/A N/A N/A
Xxxxxxx Auditor 6/23/04 655941 N/A N/A N/A
California
El Dorado Recorder 7/7/04 2004-0054440-00 N/A N/A N/A
Idaho 6/21/04 234645 N/A N/A N/A
Benewah Recorder
Xxxxxx Recorder 6/23/04 653046 N/A N/A N/A
Boundary Recorder 6/21/04 215806 N/A N/A N/A
Clearwater Recorder 6/21/04 196301 N/A N/A N/A
B-1
RECORDING IN COUNTY OFFICES
----------------------------------------------------------------------------------------------
REAL ESTATE MORTGAGE RECORDS FINANCING
------------------------------------------- STATEMENT
DOCUMENT DOCUMENT
COUNTY OFFICE OF DATE NUMBER BOOK PAGE NUMBER
-------------- ---------------- ------- --------------- ---- ----- ---------
Idaho Recorder 6/21/04 435922 N/A N/A N/A
Kootenai Recorder 6/21/04 1883294 N/A N/A N/A
Latah Recorder 6/21/04 488299 N/A N/A N/A
Xxxxx Recorder 6/21/04 131005 N/A N/A N/A
Nez Perce Recorder 6/21/04 706334 N/A N/A N/A
Shoshone Recorder 6/21/04 417093 N/A N/A N/A
Montana
Big Horn Clerk & Recorder 6/21/04 331477 76 472 N/A
Xxxxxxxxxx Clerk & Recorder 6/21/04 148275 77 293 N/A
Golden Valley Clerk & Recorder 7/6/04 76315 M 11138 N/A
Xxxxxxx Clerk & Recorder 6/21/04 113662 F59 108 N/A
Mineral Clerk & Recorder 6/21/04 95925 N/A N/A N/A
Rosebud Clerk & Recorder 6/22/04 96389 109 285 N/A
Xxxxxxx Clerk & Recorder 6/21/04 45997 1 45997 N/A
Stillwater Clerk & Recorder 6/21/04 318206 N/A N/A N/A
Treasure Clerk & Recorder 6/21/04 78818 17 29 N/A
Wheatland Clerk & Recorder 6/21/04 102682 M 15280 N/A
Yellowstone Clerk & Recorder 6/21/04 3293068 N/A N/A N/A
Oregon
Xxxxxxx Recorder 7/7/04 2004-016539 N/A N/A N/A
Xxxxxxx Recorder 6/25/04 2004-035813 N/A N/A N/A
Xxxxxxxxx Recorder 6/21/04 2004-014259 N/A N/A N/A
Klamath Recorder 7/7/04 N/A M04 44311 N/A
Xxxxxx Recorder 6/24/04 2004-11469 N/A N/A N/A
Union Recorder 7/6/04 20043654 N/A N/A N/A
Wallowa Recorder 7/6/04 2004-51070 N/A N/A N/A
B-2
EXHIBIT C
PROPERTY ADDITIONS
None.
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,
5.45% Series due 2019
REGISTERED REGISTERED
NO. _________________ $90,000,000
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 November 23, 2004
semi-annually in arrears on June 1 and December 1 in each year (each such date
being hereinafter called an "Interest Payment Date"), commencing June 1, 2005
and at Maturity (as hereinafter defined), at the rate of five and forty-five one
hundredths per centum (5.45%) 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 May 15 or November
15, 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, 5.45% Series
due 2019, 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 Thirty-fourth Supplemental
Indenture, Dated as of November 1, 2004 (the "Thirty-fourth 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.
The Bonds of this Series shall be redeemable in whole at any time or
in part from time to time, at the option of the Company, upon notice mailed as
provided in Section 52 of the Mortgage, at the option of the Company at a
redemption price equal to the greater of
(a) 100% of the principal amount of the bonds being redeemed
and
(b) the sum of the present values of the remaining scheduled
payments of principal of and interest on the bonds being redeemed
discounted to the date of redemption on a semiannual basis (assuming
a 360-day year consisting of twelve 30-day months) at a discount
rate equal to the Treasury Yield (as hereinafter defined) plus 20
basis points,
plus, in the case of either (i) or (ii) above, whichever is applicable, accrued
interest on such Bonds to the date of redemption.
D-3
"Treasury Yield" means, with respect to any redemption of Bonds of the
Thirty-second Series, the rate per annum equal to the semiannual equivalent
yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price. The Treasury Yield shall be calculated
as of the third business day preceding the redemption date or, if the Bonds to
be redeemed are to be caused to be deemed to have been paid within the meaning
of Section 106 of the Original Mortgage prior to the redemption date, then as of
the third business day prior to the earlier of (x) the date notice of such
redemption is mailed to bondholders pursuant to Section 52 of the Original
Mortgage and (y) the date irrevocable arrangements with the Trustee for the
mailing of such notice shall have been made, as the case may be (the
"Calculation Date").
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Bonds of the Thirty-second Series that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the bonds.
"Comparable Treasury Price" means, (A) the average of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third business day preceding the
Calculation Date, as set forth in the H.15 Daily Update of the Federal Reserve
Bank of New York or (B) if such release (or any successor release) is not
published or does not contain such prices on such business day, the Reference
Treasury Dealer Quotation for the Calculation Date.
"H.15(519)" means the weekly statistical release entitled
"Statistical Release H.15 (519)", or any successor publication, published by the
Board of Governors of the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15(519) available
through the worldwide website of the Board of Governors of the Federal Reserve
System or any successor site or publication.
"Independent Investment Banker" means Xxxxxxx, Xxxxx & Co. or an
independent investment banking institution of national standing appointed by the
Company and reasonably acceptable to the Trustee.
"Reference Treasury Dealer Quotation" means, with respect to the
Reference Treasury Dealer, the average, as determined by the Trustee, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount and quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third business day preceding the
Calculation Date).
"Reference Treasury Dealer" means a primary U.S. Government
securities dealer in New York City appointed by the Company and reasonably
acceptable to the Trustee.
D-4
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.
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-5
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-6
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-7
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-8
