Exhibit 4(a)-10
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THE WASHINGTON WATER POWER COMPANY
TO
WILMINGTON TRUST COMPANY,
TRUSTEE
_______________
INDENTURE
DATED AS OF _______ 1, 199_
_______________
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THE WASHINGTON WATER POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF ________ 1, 199_
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TRUST INDENTURE ACT SECTION INDENTURE SECTION(S)
--------------------------- --------------------
Section 310(a)(1) . . . . . . . . . . . . . . . . 809
(a)(2) . . . . . . . . . . . . . . . . 809
(a)(3) . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . 808, 810
Section 311(a) . . . . . . . . . . . . . . . . . 813
(b) . . . . . . . . . . . . . . . . . 813
(c) . . . . . . . . . . . . . . . . . 813
Section 312(a) . . . . . . . . . . . . . . . . . 901
(b) . . . . . . . . . . . . . . . . . 901
(c) . . . . . . . . . . . . . . . . . 901
Section 313(a) . . . . . . . . . . . . . . . . . 902
(b) . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . 902
(d) . . . . . . . . . . . . . . . . . 902
Section 314(a) . . . . . . . . . . . . . . . . . 902, 507
(b) . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . 801, 803
(b) . . . . . . . . . . . . . . . . . 802
(c) . . . . . . . . . . . . . . . . . 801
(d) . . . . . . . . . . . . . . . . . 801
(e) . . . . . . . . . . . . . . . . . 714
Section 316(a) . . . . . . . . . . . . . . . . . 712, 713
(a)(1)(A) . . . . . . . . . . . . . . 702, 712
(a)(1)(B) . . . . . . . . . . . . . . 713
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . 708
Section 317(a)(1) . . . . . . . . . . . . . . . . 703
(a)(2) . . . . . . . . . . . . . . . . 705
(b) . . . . . . . . . . . . . . . . . 503
Section 318(a) . . . . . . . . . . . . . . . . . 107
TABLE OF CONTENTS
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PAGE
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Recital of the Company . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. General Definitions . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . 3
Company Order or Company Request . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . 3
Declaration . . . . . . . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . . . . 3
Interest . . . . . . . . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . . . . 3
Eligible Obligations . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . 4
Fair Value . . . . . . . . . . . . . . . . . . . . 4
Governmental Authority . . . . . . . . . . . . . . 4
Government Obligations . . . . . . . . . . . . . . 4
Guarantee . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . 4
Independent Expert's Certificate . . . . . . . . . 4
Institutional Trustee . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . 5
Notice of Default . . . . . . . . . . . . . . . . . 5
Officer's Certificate . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . . 7
Predecessor Security . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . 7
Required Currency . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . 7
Security Register . . . . . . . . . . . . . . . . . 7
Security Registrar . . . . . . . . . . . . . . . . 7
Senior Indebtedness . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . 8
Stated Interest Rate . . . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . . . . 8
Successor Corporation . . . . . . . . . . . . . . . 8
Tranche . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . 8
Trust Securities . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . 8
United States . . . . . . . . . . . . . . . . . . . 9
Unpaid Interest . . . . . . . . . . . . . . . . . . 9
Washington Water Power Trust . . . . . . . . . . . 9
SECTION 102. Compliance Certificates and Opinions . . . . . . 9
SECTION 103. Content and Form of Documents Delivered to Trustee 10
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . 11
SECTION 105. Notices, Etc. to Trustee and Company . . . . . . 13
SECTION 106. Notice to Holders of Securities; Waiver . . . . 13
SECTION 107. Conflict with Trust Indenture Act . . . . . . . 14
SECTION 108. Effect of Headings and Table of Contents . . . . 14
SECTION 109. Successors and Assigns . . . . . . . . . . . . . 14
SECTION 110. Separability Clause . . . . . . . . . . . . . . 14
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . 14
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . 15
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . 15
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . 15
SECTION 202. Form of Trustee's Certificate of Authentication 16
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . 16
SECTION 302. Denominations . . . . . . . . . . . . . . . . . 20
SECTION 303. Execution, Dating, Certificate of Authentication 20
SECTION 304. Temporary Securities . . . . . . . . . . . . . . 23
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . 24
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities 25
SECTION 307. Payment of Interest; Interest Rights Preserved . 26
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . 27
SECTION 309. Cancellation by Security Registrar . . . . . . . 27
SECTION 310. Computation of Interest . . . . . . . . . . . . 28
SECTION 311. Payment to Be in Proper Currency . . . . . . . . 28
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. Applicability of Article . . . . . . . . . . . . 28
SECTION 402. Election to Redeem; Notice to Trustee . . . . . 29
SECTION 403. Selection of Securities to Be Redeemed . . . . . 29
SECTION 404. Notice of Redemption . . . . . . . . . . . . . . 30
SECTION 405. Securities Payable on Redemption Date . . . . . 31
SECTION 406. Securities Redeemed in Part . . . . . . . . . . 31
ARTICLE FIVE
COVENANTS
SECTION 501. Payment of Securities. . . . . . . . . . . . . . 32
SECTION 502. Maintenance of Office or Agency . . . . . . . . 32
SECTION 503. Money for Securities Payments to Be Held in Trust 33
SECTION 504. Corporate Existence . . . . . . . . . . . . . . 34
SECTION 505. Maintenance of Properties . . . . . . . . . . . 34
SECTION 506. Waiver of Certain Covenants . . . . . . . . . . 35
SECTION 507. Annual Officer's Certificate as to Compliance. . 35
SECTION 508. Restriction on Payment of Dividends, Etc. . . . 36
SECTION 509. Washington Water Power Trusts. . . . . . . . . . 36
ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. Satisfaction and Discharge of Securities . . . . 37
SECTION 602. Satisfaction and Discharge of Indenture . . . . 39
SECTION 603. Application of Trust Money . . . . . . . . . . . 40
ARTICLE SEVEN
EVENTS OF DEFAULT; REMEDIES
SECTION 701. Events of Default . . . . . . . . . . . . . . . 40
SECTION 702. Acceleration of Maturity; Rescission and Annulment 42
SECTION 703. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . 43
SECTION 704. Application of Money Collected . . . . . . . . . 44
SECTION 705. Trustee May File Proofs of Claim . . . . . . . . 44
SECTION 706. Trustee May Enforce Claims without Possession of
Securities . . . . . . . . . . . . . . . . . . 45
SECTION 707. Limitation on Suits . . . . . . . . . . . . . . 46
SECTION 708. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . 46
SECTION 709. Restoration of Rights and Remedies . . . . . . . 47
SECTION 710. Rights and Remedies Cumulative . . . . . . . . . 47
SECTION 711. Delay or Omission Not Waiver . . . . . . . . . . 47
SECTION 712. Control by Holders of Securities . . . . . . . . 47
SECTION 713. Waiver of Past Defaults . . . . . . . . . . . . 48
SECTION 714. Undertaking for Costs . . . . . . . . . . . . . 48
SECTION 715. Waiver of Stay or Extension Laws . . . . . . . . 49
SECTION 716. Action by Holders of Certain Trust Securities. . 49
ARTICLE EIGHT
THE TRUSTEE
SECTION 801. Certain Duties and Responsibilities . . . . . . 50
SECTION 802. Notice of Defaults . . . . . . . . . . . . . . . 51
SECTION 803. Certain Rights of Trustee . . . . . . . . . . . 51
SECTION 804. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . 53
SECTION 805. May Hold Securities . . . . . . . . . . . . . . 53
SECTION 806. Money Held in Trust . . . . . . . . . . . . . . 53
SECTION 807. Compensation and Reimbursement . . . . . . . . . 53
SECTION 808. Disqualification; Conflicting Interests . . . . 54
SECTION 809. Corporate Trustee Required; Eligibility . . . . 54
SECTION 810. Resignation and Removal; Appointment of Successor 55
SECTION 811. Acceptance of Appointment by Successor . . . . . 57
SECTION 812. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . 58
SECTION 813. Preferential Collection of Claims against Company 58
SECTION 814. Appointment of Authenticating Agent . . . . . . 59
ARTICLE NINE
LISTS OF HOLDERS; REPORTS BY TRUSTEE AND COMPANY
SECTION 901. Lists of Holders . . . . . . . . . . . . . . . . 61
SECTION 902. Reports by Trustee and Company . . . . . . . . . 61
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE
OR OTHER TRANSFER
SECTION 1001. Company may Consolidate, etc., Only on Certain
Terms . . . . . . . . . . . . . . . . . . . . 62
SECTION 1002. Successor Corporation Substituted . . . . . . . 63
SECTION 1003. Release of Company upon Conveyance or Other
Transfer . . . . . . . . . . . . . . . . . . . 63
SECTION 1004. Merger into Company . . . . . . . . . . . . . . 63
SECTION 1005. Transfer of Less than the Entirety . . . . . . 63
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. Supplemental Indentures without Consent of
Holders . . . . . . . . . . . . . . . . . . . 66
SECTION 1102. Supplemental Indentures with Consent of Holders 68
SECTION 1103. Execution of Supplemental Indentures . . . . . 70
SECTION 1104. Effect of Supplemental Indentures . . . . . . . 70
SECTION 1105. Conformity with Trust Indenture Act . . . . . . 70
SECTION 1106. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . 70
SECTION 1107. Modification Without Supplemental Indenture . . 70
ARTICLE TWELVE
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1201. Purposes for Which Meetings May Be Called. . . 71
SECTION 1202. Call, Notice and Place of Meetings . . . . . . 71
SECTION 1203. Persons Entitled to Vote at Meetings . . . . . 72
SECTION 1204. Quorum; Action . . . . . . . . . . . . . . . . 72
SECTION 1205. Attendance at Meetings; Determination
of Voting Rights; Conduct and Adjournment
of Meetings . . . . . . . . . . . . . . . . . 73
SECTION 1206. Counting Votes and Recording Action of Meetings 74
SECTION 1207. Action without Meeting . . . . . . . . . . . . 75
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 1301. Liability Solely Corporate . . . . . . . . . . 75
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401. Securities Subordinate to Senior Indebtedness. 75
SECTION 1402. Payment Over of Proceeds of Securities. . . . . 76
SECTION 1403. Disputes with Holders of Certain Senior
Indebtedness. . . . . . . . . . . . . . . . . 78
SECTION 1404. Subrogation. . . . . . . . . . . . . . . . . . 78
SECTION 1405. Obligation of the Company Unconditional. . . . 78
SECTION 1406. Priority of Senior Indebtedness Upon Maturity. 79
SECTION 1407. Trustee as Holder of Senior Indebtedness. . . . 79
SECTION 1408. Notice to Trustee to Effectuate Subordination. 79
SECTION 1409. Modification, Extension, etc. of Senior
Indebtedness. . . . . . . . . . . . . . . . . 80
SECTION 1410. Trustee Has No Fiduciary Duty to Holders of
Senior Indebtedness. . . . . . . . . . . . . 80
SECTION 1411. Paying Agents Other Than the Trustee. . . . . . 80
SECTION 1412. Rights of Holders of Senior Indebtedness Not
Impaired. . . . . . . . . . . . . . . . . . . 81
SECTION 1413. Effect of Subordination Provisions; Termination. 81
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . 82
INDENTURE, dated as of _________ 1, 199_ between THE WASHINGTON
WATER POWER COMPANY, a corporation organized and existing under the laws of
the State of Washington (hereinafter sometimes called the "Company"), and
Wilmington Trust Company, a Delaware banking corporation, trustee
(hereinafter sometimes called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of unsecured
subordinated debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as
contemplated herein; all acts necessary to make this Indenture a valid
agreement of the Company have been performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH that, in consideration
of the premises and of the purchase of the Securities by the Holders
thereof, it is hereby covenanted and agreed by and between the Company and
the Trustee that all the Securities are to be authenticated and delivered
subject to the further covenants, conditions and trusts hereinafter set
forth, and the Company hereby covenants and agrees to and with the Trustee,
for the equal and ratable benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. GENERAL DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by refer-
ence therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles in the United States; and, except
as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the
date of such computation or, at the election of the Company from
time to time, at the date of the execution and delivery of this
Indenture; provided, however, that in determining generally
accepted accounting principles applicable to the Company, effect
shall be given, to the extent required, to any order, rule or
regulation of any administrative agency, regulatory authority or
other governmental body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"ACT", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "CONTROL" when used with respect to any specified Person
means the power to direct generally the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "CONTROLLING" and
"CONTROLLED" have meanings correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person (other than the Company
or an Affiliate of the Company) authorized by the Trustee to act on behalf
of the Trustee to authenticate the Securities of one or more series.
"AUTHORIZED OFFICER" means the Chairman of the Board, the
President, any Vice President, the Treasurer or the Corporate Secretary or
any other duly authorized officer, agent or attorney-in-fact of the Company
named in an Officer's Certificate signed by any of such corporate officers.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or any committee thereof duly authorized to act in respect of
matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Corporate Secretary or an Assistant Corporate Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of Payment or
any other particular location specified in the Securities or this
Indenture, means any day, other than a Saturday or Sunday, which is not a
day on which banking institutions or trust companies in such Place of
Payment or other location are generally authorized or required by law,
regulation or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the date of the execution and
delivery of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body,
if any, performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY ORDER" or "COMPANY REQUEST" means a written request or
order signed in the name of the Company by an Authorized Officer and deliv-
ered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of the execution and delivery of
this Indenture is located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000.
"CORPORATION" means a corporation, association, company, joint
stock company or business trust.
"DECLARATION", with respect to a Washington Water Power Trust,
means the Declaration of Trust establishing such trust, as the same shall
be amended and restated from time to time.
"DISCOUNT SECURITY" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
702. "INTEREST" with respect to a Discount Security means interest, if
any, borne by such Security at a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect to
such Securities as contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 701.
"FAIR VALUE" has the meaning specified in Section 1005.
"GOVERNMENTAL AUTHORITY" means the government of the United
States or of any State or Territory thereof or of the District of Columbia
or of any county, municipality or other political subdivision of any
thereof, or any department, agency, authority or other instrumentality of
any of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the
United States entitled to the benefit of the full faith and
credit thereof; and
(b) certificates, depositary receipts or other instruments
which evidence a direct ownership interest in obligations
described in clause (a) above or in any specific interest or
principal payments due in respect thereof; provided, however,
that the custodian of such obligations or specific interest or
principal payments shall be a bank or trust company (which may
include the Trustee or any Paying Agent) subject to Federal or
State supervision or examination with a combined capital and
surplus of at least Fifty Million Dollars ($50,000,000); and
provided, further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the holders of
such certificates, depositary receipts or other instruments the
full amount received by such custodian in respect of such
obligations or specific payments and shall not be permitted to
make any deduction therefrom.
"GUARANTEE", with respect to a Washington Water Power Trust,
means a guarantee agreement between the Company and the Institutional
Trustee of such trust for the benefit of the holders from time to time of
any of the Trust Securities of such trust.
"HOLDER" means a Person in whose name a Security is registered in
the Security Register.
"INDENTURE" means the Indenture, dated as of _________ 1, 199_ as
originally executed and delivered and as it has been and may from time to
time be amended and/or supplemented by one or more indentures or other
instruments supplemental thereto or hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular
series of Securities established as contemplated by Section 301.
"INDEPENDENT EXPERT'S CERTIFICATE" has the meaning specified in
Section 1005.
"INSTITUTIONAL TRUSTEE", with respect to a Washington Water Power
Trust, has the meaning set forth in the Declaration establishing such
trust.
"INTEREST PAYMENT DATE", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"MATURITY", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as provided in such Security or in this Indenture,
whether at the Stated Maturity, by declaration of acceleration, upon call
for redemption or otherwise.
"NOTICE OF DEFAULT" has the meaning specified in Section 701.
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may
be counsel for the Company or other counsel acceptable to the Trustee and
who may be an employee or Affiliate of the Company.
"OUTSTANDING", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled or delivered to the
Trustee for cancellation;
(b) Securities deemed to have been paid for all purposes of
this Indenture in accordance with Section 601 (whether or not the
Company's indebtedness in respect thereof shall be satisfied and
discharged for any other purpose); and
(c) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it and the
Company that such Securities are held by a bona fide purchaser or
purchasers in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this
Indenture, or the Outstanding Securities of any series or Tranche, have
given any request, demand, authorization, direction, notice, consent or
waiver hereunder or whether or not a quorum is present at a meeting of
Holders of Securities,
(x) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such
other obligor (unless the Company, such obligor or such Affiliate
owns all Securities Outstanding under this Indenture, or all
Outstanding Securities of each such series and each such Tranche,
as the case may be, determined without regard to this clause (x))
shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver or upon any such determination as to
the presence of a quorum, only Securities which the Trustee knows
to be so owned shall be so disregarded; provided, however, that
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if it is established to the reasonable
satisfaction of the Trustee that the pledgee, and not the
Company, any such other obligor or Affiliate of either thereof,
has the right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor; and
(y) the principal amount of a Discount Security that shall
be deemed to be Outstanding for such purposes shall be the amount
of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of
the Maturity thereof pursuant to Section 702; and
provided, further, that, in the case of any Security the principal of which
is payable from time to time without presentment or surrender, the
principal amount of such Security that shall be deemed to be Outstanding at
any time for all purposes of this Indenture shall be the original principal
amount thereof less the aggregate amount of principal thereof theretofore
paid.
"PAYING AGENT" means any Person, including the Company,
authorized by the Company to pay the principal of and premium, if any, or
interest, if any, on any Securities on behalf of the Company.
"PERIODIC OFFERING" means an offering of Securities of a series
from time to time any or all of the specific terms of which Securities,
including without limitation the rate or rates of interest, if any,
thereon, the Stated Maturity or Maturities thereof and the redemption pro-
visions, if any, with respect thereto, are to be determined by the Company
or its agents from time to time subsequent to the initial request for the
authentication and delivery of such Securities by the Trustee, all as
contemplated in Section 301 and clause (b) of Section 303.
"PERSON" means any individual, corporation, partnership, limited
liability partnership, limited liability company, joint venture, trust or
unincorporated organization or any Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the Securities of
any series, or any Tranche thereof, means the place or places, specified as
contemplated by Section 301, at which, subject to Section 502, principal of
and premium, if any, and interest, if any, on the Securities of such series
or Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed (to the extent lawful) to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"SECURITIES" means any bonds, notes and other evidences of
indebtedness authenticated and delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SENIOR INDEBTEDNESS" means, with respect to any Person (a)
indebtedness (including premium, if any, and interest, if any, thereon) of
such Person for money borrowed or for the deferred purchase price of
property or services; (b) all other indebtedness (including premium, if
any, and interest, if any, thereon) evidenced by bonds, debentures, notes
or other similar instruments (other than Securities) issued by such Person;
(c) all obligations of such Person under lease agreements designating such
Person as lessee, irrespective of the treatment of any such lease agreement
for accounting, tax or other purposes; (d) all obligations of such Person
for reimbursement (including premium, if any, and interest, if any thereon)
in respect of any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction; (e) all obligations of the
character referred to in clauses (a) through (d) above of other Persons for
the payment of which such Person is responsible or liable as obligor,
guarantor or otherwise; and (f) all obligations of the character referred
to in clauses (a) through (d) above of other Persons secured by any lien on
any property or asset of such Person (whether or not such obligation is
assumed by such Person); provided, however, that Senior Indebtedness shall
not include (x) any such indebtedness that is by its terms subordinated to
or pari passu with the Securities or (y) any indebtedness between or among
such Person and its Affiliates, including all other debt securities and
guarantees in respect of such debt securities, issued to (i) any Washington
Water Power Trust or (ii) any other trust, or a trustee of such trust,
partnership or other entity which is a financing vehicle of such Person in
connection with the issuance by such financing vehicle of preferred
securities.
"SPECIAL RECORD DATE" for the payment of any Unpaid Interest on
the Securities of any series means a date fixed by the Trustee pursuant to
Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or variable)
at which an obligation by its terms is stated to bear simple interest. Any
calculation or other determination to be made under this Indenture by
reference to the Stated Interest Rate on an obligation shall be made (a) if
the Company's obligations in respect of any other indebtedness shall be
evidenced or secured in whole or in part by such obligation, by reference
to the lower of the Stated Interest Rate on such obligation and the Stated
Interest Rate on such other indebtedness and (b) without regard to the
effective interest cost to the Company of such obligation or of any such
other indebtedness.
"STATED MATURITY", when used with respect to any obligation or
any installment of principal thereof or interest thereon, means the date on
which the principal of such obligation or such installment of principal or
interest is stated to be due and payable (without regard to any provisions
for redemption, prepayment, acceleration, purchase or extension).
"SUCCESSOR CORPORATION" has the meaning set forth in Section
1001.
"TRANCHE" means a group of Securities which (a) are of the same
series and (b) have identical terms except as to principal amount and/or
date of issuance.
"TRUST INDENTURE ACT" means, as of any time, the Trust Indenture
Act of 1939, or any successor statute, as in effect at such time.
"TRUST SECURITIES", with respect to a Washington Water Power
Trust, means the securities issued by such trust, as established in the
Declaration of such trust.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor trustee shall have become
such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and, if at any
time there is more than one Person acting as trustee hereunder, "Trustee"
shall mean each such Person so acting.
"UNITED STATES" means the United States of America, its
Territories, its possessions and other areas subject to its political
jurisdiction.
"UNPAID INTEREST" has the meaning specified in Section 307.
"WASHINGTON WATER POWER TRUST" means each of Washington Water
Power Capital I, Washington Water Power Capital II and Washington Water
Power Capital III, each a business trust established under the laws of the
State of Delaware, and any other similar trust established for the purpose
of issuing securities upon the issuance and delivery to it of Securities.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied
with, it being understood that in the case of any such application or
request as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such cer-
tificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, such individual has made such examination or
investigation as is necessary to enable such individual to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. CONTENT AND FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
(a) Any Officer's Certificate may be based (without further
examination or investigation), insofar as it relates to or is dependent
upon legal matters, upon an opinion of, or representations by, counsel,
unless, in any case, such officer has actual knowledge that the certificate
or opinion or representations with respect to the matters upon which such
Officer's Certificate may be based as aforesaid are erroneous.
Any Opinion of Counsel may be based (without further examination
or investigation), insofar as it relates to or is dependent upon factual
matters, information with respect to which is in the possession of the
Company, upon a certificate of, or representations by, an officer or
officers of the Company, unless such counsel has actual knowledge that the
certificate or opinion or representations with respect to the matters upon
which his opinion may be based as aforesaid are erroneous. In addition,
any Opinion of Counsel may be based (without further examination or
investigation), insofar as it relates to or is dependent upon matters
covered in an Opinion of Counsel rendered by other counsel, upon such other
Opinion of Counsel, unless such counsel has actual knowledge that the
Opinion of Counsel rendered by such other counsel with respect to the
matters upon which his Opinion of Counsel may be based as aforesaid are
erroneous. If, in order to render any Opinion of Counsel provided for
herein, the signer thereof shall deem it necessary that additional facts or
matters be stated in any Officer's Certificate provided for herein, then
such certificate may state all such additional facts or matters as the
signer of such Opinion of Counsel may request.
(b) In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents. Where any Person is required to make,
give or execute two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
(c) Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or other
document or instrument, a clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered therein, a new document
or instrument may be substituted therefor in corrected form with the same
force and effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or delivery
thereof, such substitute document or instrument shall be deemed to have
been executed and/or delivered as of the date or dates required with
respect to the document or instrument for which it is substituted.
Anything in this Indenture to the contrary notwithstanding, if any such
corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the
action so taken shall not be invalidated or otherwise rendered ineffective
but shall be and remain in full force and effect, except to the extent that
such action was a result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall nevertheless be
the valid obligations of the Company entitled to the benefits provided by
this Indenture equally and ratably with all other Outstanding Securities,
except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Indenture to be
made, given or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing or, alternatively, may be
embodied in and evidenced by the record of Holders voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Holders duly called and held in accordance with the provisions of Article
Twelve, or a combination of such instruments and any such record. Except
as herein otherwise expressly provided, such action shall become effective
when such instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the
"ACT" of the Holders signing such instrument or instruments and so voting
at any such meeting. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 801) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section. The record of any
meeting of Holders shall be proved in the manner provided in Section 1206.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof or may be proved in any other manner which the Trustee
and the Company deem sufficient. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his authority.
(c) The ownership, principal amount (except as otherwise
contemplated in clause (y) of the first proviso to the definition of
Outstanding) and serial numbers of Securities held by any Person, and the
date of holding the same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of prin-
cipal amount of Securities for the action contemplated by such instruments,
any such instrument executed and delivered by or on behalf of a Holder may
be revoked with respect to any or all of such Securities by written notice
by such Holder or any subsequent Holder, proven in the manner in which such
instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as
to any action taken by such Act of Holders. If the Company shall so
determine, new Securities of any series, or any Tranche thereof, so
modified as to conform, in the opinion of the Trustee and the Company, to
such action may be prepared and executed by the Company and authenticated
and delivered by the Trustee in exchange for Outstanding Securities of such
series or Tranche.
(g) The Company may, at its option, by Company Order, fix in
advance a record date for the determination of Holders entitled to give any
request, demand, authorization, direction, notice, consent, waiver or other
Act solicited by the Company, but the Company shall have no obligation to
do so; provided, however, that the Company may not fix a record date for
the giving or making of any notice, declaration, request or direction
referred to in the next sentence. In addition, the Trustee may, at its
option, fix in advance a record date for the determination of Holders of
Securities of any series entitled to join in the giving or making of any
Notice of Default, any declaration of acceleration referred to in Section
702, any request to institute proceedings referred to in Section 707 or any
direction referred to in Section 712, in each case with respect to
Securities of such series. If any such record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act, or
such notice, declaration, request or direction, may be given before or
after such record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes
of determining (i) whether Holders of the requisite proportion of the
Outstanding Securities have authorized or agreed or consented to such Act
(and for that purpose the Outstanding Securities shall be computed as of
the record date) and/or (ii) which Holders may revoke any such Act
(notwithstanding subsection (e) of this Section); and any such Act, given
as aforesaid, shall be effective whether or not the Holders which
authorized or agreed or consented to such Act remain Holders after such
record date and whether or not the Securities held by such Holders remain
Outstanding after such record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
the Trustee by any Holder or by the Company, or the Company by the Trustee
or by any Holder, shall be sufficient for every purpose hereunder (unless
otherwise expressly provided herein) if the same shall be in writing and
delivered personally to an officer or other responsible employee of the
addressee, or transmitted by facsimile transmission, telex or other direct
written electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time to time
designate, or transmitted by registered mail, charges prepaid, to the
applicable address set opposite such party's name below or to such other
address as either party hereto may from time to time designate:
If to the Trustee, to:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
If to the Company, to:
The Washington Water Power Company
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer
Facsimile: (000) 000-0000
Any communication contemplated herein shall be deemed to have
been made, given, furnished and filed if personally delivered, on the date
of delivery, if transmitted by facsimile transmission, telex or other
direct written electronic means, on the date of transmission, and if
transmitted by registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event,
at the address of such Holder as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with
respect to other Holders.
Any notice required by this Indenture may be waived in writing by
the Person entitled to receive such notice, either before or after the
event otherwise to be specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts
with another provision hereof which is required or deemed to be included in
this Indenture by, or is otherwise governed by, any provision of the Trust
Indenture Act, such other provision shall control; and if any provision
hereof otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and the Table
of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities shall
be held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or implied,
shall give to any Person, other than the parties hereto, their successors
hereunder and the Holders and, to the extent provided in Sections 104(a)
and 716, registered holders of Trust Securities (other than Trust
Securities initially issued and sold to the Company) and, so long as the
notice described in Section 1413 shall not have been given, holders of
Senior Indebtedness, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the law of the State of New York (including
without limitation Section 5-1401 of the New York General Obligations Law
or any successor to such statute), except to the extent that the Trust
Indenture Act shall be applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of
the Securities other than a provision in Securities of any series, or any
Tranche thereof, or in the indenture supplemental hereto, Board Resolution
or Officer's Certificate which establishes the terms of the Securities of
such series or Tranche, which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal and
premium, if any, need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, and, if such payment is
made or duly provided for on such Business Day, no interest shall accrue on
the amount so payable for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, to such
Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in
substantially the form or forms established in the indenture supplemental
hereto establishing such series, or in a Board Resolution establishing such
series, or in an Officer's Certificate pursuant to such a supplemental
indenture or Board Resolution, in any case with such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If the form
or forms of Securities of any series are established in a Board Resolution
or in an Officer's Certificate pursuant to a Board Resolution, such Board
Resolution and Officer's Certificate, if any, shall be delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by
Section 303 for the authentication and delivery of such Securities.
The Securities of each series shall be issuable in registered
form without coupons. The definitive Securities shall be produced in such
manner as shall be determined by the officers executing such Securities, as
evidenced by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
_________________________________
as Trustee
By: _____________________________
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Subject to
the last paragraph of this Section, prior to the authentication and
delivery of Securities of any series there shall be established by
specification in a supplemental indenture or in a Board Resolution, or in
an Officer's Certificate pursuant to a supplemental indenture or a Board
Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all
other series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of such series
pursuant to Section 304, 305, 306, 406 or 1106 and except for any
Securities which, pursuant to Section 303, are deemed never to
have been authenticated and delivered hereunder);
(c) the Persons (without specific identification) to whom
interest on Securities of such series, or any Tranche thereof,
shall be payable, if other than the Persons in whose names such
Securities (or one or more Predecessor Securities) are registered
at the close of business on the Regular Record Date for such
interest;
(d) the date or dates on which the principal of the
Securities of such series, or any Tranche thereof, is payable or
any formulary or other method or other means by which such date
or dates shall be determined, by reference to an index or other
fact or event ascertainable outside of this Indenture or
otherwise (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension); and the right,
if any, to extend the Maturity of the Securities of such series,
or any Tranche thereof, and the duration of any such extension;
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal shall
bear interest, if different from the rate or rates at which such
Securities shall bear interest prior to Maturity, and, if
applicable, the rate or rates at which overdue premium or
interest shall bear interest, if any), or any formulary or other
method or other means by which such rate or rates shall be
determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise; the date or
dates from which such interest shall accrue; the Interest Payment
Dates on which such interest shall be payable and the Regular
Record Date, if any, for the interest payable on such Securities
on any Interest Payment Date; the basis of computation of
interest, if other than as provided in Section 310; and the
right, if any, to extend the interest payment periods and the
duration of any such extension;
(f) the place or places at which and/or the methods (if
other than as provided elsewhere in this Indenture) by which (i)
the principal of and premium, if any, and interest, if any, on
Securities of such series, or any Tranche thereof, shall be
payable, (ii) registration of transfer of Securities of such
series, or any Tranche thereof, may be effected, (iii) exchanges
of Securities of such series, or any Tranche thereof, may be
effected and (iv) notices and demands to or upon the Company in
respect of the Securities of such series, or any Tranche thereof,
and this Indenture may be served; the Security Registrar and any
Paying Agent or Agents for such series or Tranche; and, if such
is the case, that the principal of such Securities shall be
payable without the presentment or surrender thereof;
(g) the period or periods within which or the date or dates
on which, the price or prices at which and the terms and
conditions upon which the Securities of such series, or any
Tranche thereof, may be redeemed, in whole or in part, at the
option of the Company;
(h) the obligation or obligations, if any, of the Company
to redeem or purchase the Securities of such series, or any
Tranche thereof, pursuant to any sinking fund or other mandatory
redemption provisions or at the option of a Holder thereof and
the period or periods within which or the date or dates on which,
the price or prices at which and the terms and conditions upon
which such Securities shall be redeemed or purchased, in whole or
in part, pursuant to such obligation, and applicable exceptions
to the requirements of Section 404 in the case of mandatory
redemption or redemption at the option of the Holder;
(i) the denominations in which Securities of such series,
or any Tranche thereof, shall be issuable if other than
denominations of One Thousand Dollars ($1,000) and any integral
multiple thereof (in the case of Securities issued to a
Washington Water Power Trust or a trustee of such trust in
connection with the issuance of Trust Securities by such
Washington Water Power Trust, the denomination in which such
Securities shall be issuable if other than denominations of
Twenty-Five Dollars ($25) and any integral multiple thereof);
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premium, if
any, and interest, if any, on the Securities of such series, or
any Tranche thereof, shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof,
are to be payable, at the election of the Company or a Holder
thereof, in a coin or currency other than that in which the
Securities are stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may
be made;
(l) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof,
are to be payable, or are to be payable at the election of the
Company or a Holder thereof, in securities or other property, the
type and amount of such securities or other property, or the
formulary or other method or other means by which such amount
shall be determined, and the period or periods within which, and
the terms and conditions upon which, any such election may be
made;
(m) if the amount payable in respect of the principal of or
premium, if any, or interest, if any, on the Securities of such
series, or any Tranche thereof, may be determined with reference
to an index or other fact or event ascertainable outside of this
Indenture, the manner in which such amounts shall be determined
(to the extent not established pursuant to clause (e) of this
paragraph);
(n) if other than the principal amount thereof, the portion
of the principal amount of Securities of such series, or any
Tranche thereof, which shall be payable upon declaration of ac-
celeration of the Maturity thereof pursuant to Section 702;
(o) the terms, if any, pursuant to which the Securities of
such series, or any Tranche thereof, may be converted into or
exchanged for shares of capital stock or other securities of the
Company or any other Person;
(p) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the
Securities of such series, or any Tranche thereof, denominated in
a currency other than Dollars or in a composite currency, and any
additional or alternative provisions for the reinstatement of the
Company's indebtedness in respect of such Securities after the
satisfaction and discharge thereof as provided in Section 601;
(q) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any limitations on
the rights of the Holder or Holders of such Securities to
transfer or exchange the same or to obtain the registration of
transfer thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates therefor in
definitive form in lieu of temporary form and (iii) any and all
other matters incidental to such Securities;
(r) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and all
matters incidental thereto which are not specifically addressed
in a supplemental indenture as contemplated by clause (f) of
Section 1101;
(s) to the extent not established pursuant to clause (q) of
this paragraph, any limitations on the rights of the Holders of
the Securities of such Series, or any Tranche thereof, to
transfer or exchange such Securities or to obtain the
registration of transfer thereof; and if a service charge will be
made for the registration of transfer or exchange of Securities
of such series, or any Tranche thereof, the amount or terms
thereof;
(t) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of
such series, or any Tranche thereof; and
(u) any other terms of the Securities of such series, or
any Tranche thereof.
With respect to Securities of a series subject to a Periodic
Offering, the indenture supplemental hereto or the Board Resolution which
establishes such series, or the Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, as the case may be, may provide
general terms or parameters for Securities of such series and provide
either that the specific terms of Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms shall be
determined by the Company or its agents in accordance with procedures
specified in a Company Order as contemplated by clause (b) of Section 303.
Anything herein to the contrary notwithstanding, the Trustee
shall be under no obligation to authenticate and deliver Securities of any
series the terms of which, established as contemplated by this Section,
would affect the rights, duties, obligations, liabilities or immunities of
the Trustee under this Indenture or otherwise.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities
of each series shall be issuable in denominations of One Thousand Dollars
($1,000) and any integral multiple thereof (in the case of securities
issued to a Washington Water Power Trust or a trustee of such trust in
connection with the issuance of Trust Securities by such Washington Water
Power Trust, the Securities of each series shall be issuable in
denominations of Twenty-Five Dollars ($25) and any integral multiple
thereof).
SECTION 303. EXECUTION, DATING, CERTIFICATE OF AUTHENTICATION.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities
shall be executed on behalf of the Company by an Authorized Officer, and
may have the corporate seal of the Company affixed thereto or reproduced
thereon and attested by any other Authorized Officer. The signature of any
or all of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers of the
Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the date of
such Securities.
The Trustee shall authenticate and deliver Securities of a
series, for original issue, at one time or from time to time in accordance
with the Company Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or
forms and terms of such series, as provided in Sections 201 and
301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the terms of
such Securities shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in an Officer's
Certificate pursuant to a supplemental indenture or Board
Resolution, all as contemplated by Sections 201 and 301, either
(i) establishing such terms or (ii) in the case of Securities of
a series subject to a Periodic Offering, specifying procedures,
acceptable to the Trustee, by which such terms are to be
established (which procedures may provide for authentication and
delivery pursuant to oral or electronic instructions from the
Company or any agent or agents thereof, which oral instructions
are to be promptly confirmed electronically or in writing), in
either case in accordance with the instrument or instruments
delivered pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf of
the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have been
duly authorized by the Company and have been established in
conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) when such Securities shall have been
authenticated and delivered by the Trustee and issued and
delivered by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, such
Securities will constitute valid obligations of the Company,
entitled to the benefits provided by this Indenture equally
and ratably with all other Securities then Outstanding;
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time
of the first authentication and delivery of such Securities
(provided that such Opinion of Counsel addresses the
authentication and delivery of all Securities of such series) and
that, in lieu of the opinions described in clauses (ii) and (iii)
above, Counsel may opine that:
(x) when the terms of such Securities shall have been
established pursuant to a Company Order or Orders or
pursuant to such procedures as may be specified from time to
time by a Company Order or Orders, all as contemplated by
and in accordance with the instrument or instruments
delivered pursuant to clause (a) above, such terms will have
been duly authorized by the Company and will have been
established in conformity with the provisions of this
Indenture; and
(y) when such Securities shall have been authenticated
and delivered by the Trustee in accordance with this
Indenture and the Company Order or Orders or the specified
procedures referred to in paragraph (x) above and issued and
delivered by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, such
Securities will constitute valid obligations of the Company,
entitled to the benefits provided by this Indenture equally
and ratably with all other Securities then Outstanding.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the forms and terms thereof, the
validity thereof and the compliance of the authentication and delivery
thereof with the terms and conditions of this Indenture, upon the Opinion
or Opinions of Counsel and the certificates and other documents delivered
pursuant to this Article at or prior to the time of the first
authentication and delivery of Securities of such series until any of such
opinions, certificates or other documents have been superseded or revoked
or expire by their terms. In connection with the authentication and
delivery of Securities of a series subject to a Periodic Offering, the
Trustee shall be entitled to assume that the Company's instructions to
authenticate and deliver such Securities do not violate any applicable law
or any applicable rule, regulation or order of any Governmental Authority
having jurisdiction over the Company.
If the form of terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an Officer's
Certificate as permitted by Sections 201 or 301, the Trustee shall not be
required to authenticate such Securities if the issuance of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, each Security
shall be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, no Security
shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or an Authenticating Agent by manual signature of
an authorized officer thereof, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder and is entitled to the benefits
of this Indenture. Notwithstanding the foregoing, if (a) any Security
shall have been authenticated and delivered hereunder to the Company, or
any Person acting on its behalf, but shall never have been issued and sold
by the Company, (b) the Company shall deliver such Security to the Security
Registrar for cancellation or shall cancel such Security and deliver
evidence of such cancellation to the Trustee, in each case as provided in
Section 309, and (c) the Company, at its election, shall deliver to the
Trustee a written statement (which need not comply with Section 102 and
need not be accompanied by an Officer's Certificate or an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, then, for all purposes of this Indenture, such Security shall be
deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series,
or any Tranche thereof, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed, photocopied or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, with such
appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities; provided, however, that temporary Securities
need not recite specific redemption, sinking fund, conversion or exchange
provisions.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, after the
preparation of definitive Securities of such series or Tranche, the
temporary Securities of such series or Tranche shall be exchangeable,
without charge to the Holder thereof, for definitive Securities of such
series or Tranche upon surrender of such temporary Securities at the office
or agency of the Company maintained pursuant to Section 502 in a Place of
Payment for such Securities. Upon such surrender of temporary Securities,
the Company shall, except as aforesaid, execute and the Trustee shall
authenticate and deliver in exchange therefor definitive Securities of the
same series and Tranche, of authorized denominations and of like tenor and
aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary
Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of the same series and Tranche and
of like tenor authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in one of the offices
designated pursuant to Section 502, with respect to the Securities of each
series, or any Tranche thereof, a register (the "SECURITY REGISTER") in
which, subject to such reasonable regulations as it may prescribe, the Com-
pany shall provide for the registration of Securities of such series or
Tranche and the registration of transfer thereof. The Company shall
designate one Person to maintain the Security Register for the Securities
of each series and such Person is referred to herein, with respect to such
series, as the "SECURITY REGISTRAR". Anything herein to the contrary
notwithstanding, the Company may designate one or more of its offices as an
office in which a register with respect to the Securities of one or more
series, or any Tranche or Tranches thereof, shall be maintained, and the
Company may designate itself the Security Registrar with respect to one or
more of such series. The Security Register shall be open for inspection by
the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, upon
surrender for registration of transfer of any Security of such series or
Tranche at the office or agency of the Company maintained pursuant to
Section 502 in a Place of Payment for such series or Tranche, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of
the same series and Tranche, of authorized denominations and of like tenor
and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, any
Security of such series or Tranche may be exchanged at the option of the
Holder, for one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities delivered upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Trustee
or the Security Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to the Company, the
Trustee or the Security Registrar, as the case may be, duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301 with
respect to Securities of any series, or any Tranche thereof, no service
charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 406 or 1106 not involving any
transfer.
The Company shall not be required to execute or to provide for
the registration of transfer of or the exchange of (a) Securities of any
series, or any Tranche thereof, during a period of fifteen (15) days
immediately preceding the date notice is to be given identifying the serial
numbers of the Securities of such series or Tranche called for redemption
or (b) any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in ex-
change therefor a new Security of the same series and Tranche, and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the ownership of and the destruction,
loss or theft of any Security and (b) such security or indemnity as may be
reasonably required by them to save each of them and any agent of either of
them harmless, then, in the absence of notice to the Company or the Trustee
that such Security is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, but subject to compliance with
the foregoing conditions, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone other than the Holder of such new Security, and any such new
Security shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of such series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, interest
on any Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date,
including without limitation interest the payment period for which has been
extended as specified with respect to such series as contemplated by
Section 301 (herein called "UNPAID INTEREST"), shall forthwith cease to be
payable to the Holder on the related Regular Record Date by virtue of
having been such Holder, and such Unpaid Interest may be paid by the
Company, at its election in each case, as provided in clause (a) or (b)
below:
(a) The Company may elect to make payment of any Unpaid
Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are
registered at the close of business on a date (herein called a
"SPECIAL RECORD DATE") for the payment of such Unpaid Interest,
which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Unpaid Interest
proposed to be paid on each Security of such series and the date
of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggre-
gate amount proposed to be paid in respect of such Unpaid
Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
Persons entitled to such Unpaid Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Unpaid Interest which shall be not more
than thirty (30) days and not less than ten (10) days prior to
the date of the proposed payment and not less than twenty-five
(25) days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense
of the Company, shall, not less than fifteen (15) days prior to
such Special Record Date, cause notice of the proposed payment of
such Unpaid Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities
of such series at the address of such Holder as it appears in the
Security Register. Notice of the proposed payment of such Unpaid
Interest and the Special Record Date therefor having been so
mailed, such Unpaid Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business
on such Special Record Date.
(b) The Company may make payment of any Unpaid Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Security is registered as
the absolute owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to Sections 305 and 307)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption, registration
of transfer or exchange shall, if surrendered to any Person other than the
Security Registrar, be delivered to the Security Registrar and, if not
theretofore canceled, shall be promptly canceled by the Security Registrar.
The Company may at any time deliver to the Security Registrar for
cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever or
which the Company shall not have issued and sold, and all Securities so
delivered shall be promptly canceled by the Security Registrar. All
canceled Securities held by the Security Registrar shall be disposed of in
accordance with a Company Order delivered to the Security Registrar and the
Trustee, and the Security Registrar shall promptly deliver a certificate of
disposition to the Trustee and the Company unless, by a Company Order,
similarly delivered, the Company shall direct that canceled Securities be
returned to it. The Security Registrar shall promptly deliver evidence of
any cancellation of a Security in accordance with this Section 309 to the
Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, or any Tranche thereof, interest on the
Securities of each series shall be computed on the basis of a three hundred
sixty (360) day year consisting of twelve (12) thirty (30) day months and,
with respect to any period less than a full calendar month, on the basis of
the actual number of days elapsed during such period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any Tranche
thereof, denominated in any currency other than Dollars or in a composite
currency (the "REQUIRED CURRENCY"), except as otherwise specified with
respect to such Securities as contemplated by Section 301, the obligation
of the Company to make any payment of the principal thereof, or the
premium, if any, or interest, if any, thereon, shall not be discharged or
satisfied by any tender by the Company, or recovery by the Trustee, in any
currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the Trustee timely holding the full
amount of the Required Currency then due and payable. If any such tender
or recovery is in a currency other than the Required Currency, the Trustee
may take such actions as it considers appropriate to exchange such currency
for the Required Currency. The costs and risks of any such exchange,
including without limitation the risks of delay and exchange rate fluctua-
tion, shall be borne by the Company, the Company shall remain fully liable
for any shortfall or delinquency in the full amount of Required Currency
then due and payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful misconduct.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are
redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by
Section 301 for Securities of such series or Tranche) in accordance with
this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate. The Company
shall, at least forty-five (45) days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the principal
amount of such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (b) pursuant to an election of the Company which is subject to
a condition specified in the terms of such Securities, the Company shall
furnish the Trustee with an Officer's Certificate evidencing compliance
with such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any Tranche
thereof, are to be redeemed, the particular Securities to be redeemed shall
be selected by the Security Registrar from the Outstanding Securities of
such series or Tranche not previously called for redemption, by such method
as shall be provided for any particular series or Tranche, or, in the
absence of any such provision, by such method of random selection as the
Security Registrar shall deem fair and appropriate and which may, in any
case, provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of such series or Tranche or
any integral multiple thereof) of the principal amount of Securities of
such series or Tranche having a denomination larger than the minimum
authorized denomination for Securities of such series or Tranche; provided,
however, that if, as indicated in an Officer's Certificate, the Company
shall have offered to purchase all or any principal amount of the
Securities then Outstanding of any series, or any Tranche thereof, and less
than all of such Securities as to which such offer was made shall have been
tendered to the Company for such purchase, the Security Registrar, if so
directed by Company Order, shall select for redemption all or any principal
amount of such Securities which have not been so tendered.
The Security Registrar shall promptly notify the Company and the
Trustee in writing of the Securities selected for redemption and, in the
case of any Securities selected to be redeemed in part, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of the Securities to be redeemed not less than
thirty (30) nor more than sixty (60) days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or
Tranche are to be redeemed, the identification of the particular
Securities to be redeemed and the portion of the principal amount
of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption Date,
will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued
interest, if any, unless it shall have been specified as
contemplated by Section 301 with respect to such Securities that
such surrender shall not be required,
(f) that the redemption is for a sinking or other fund, if
such is the case, and
(g) such other matters as the Company shall deem desirable
or appropriate.
With respect to any notice of redemption of Securities at the
election of the Company, unless, upon the giving of such notice, such
Securities shall be deemed to have been paid in accordance with Section
601, such notice may state that such redemption shall be conditional upon
the receipt by the Paying Agent or Agents for such Securities, on or prior
to the date fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such Securities
and that if such money shall not have been so received such notice shall be
of no force or effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains such a
condition and such money is not so received, the redemption shall not be
made and within a reasonable time thereafter notice shall be given, in the
manner in which the notice of redemption was given, that such money was not
so received and such redemption was not required to be made, and the Paying
Agent or Agents for the Securities otherwise to have been redeemed shall
promptly return to the Holders thereof any of such Securities which had
been surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the election
of the Company, and any notice of non-satisfaction of a condition for
redemption as aforesaid, shall be given by the Company or, at the Company's
request, by the Security Registrar in the name and at the expense of the
Company. Notice of mandatory redemption of Securities shall be given by
the Security Registrar in the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless, in the case of an unconditional notice of
redemption, the Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or portions thereof, if
interest-bearing, shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with such notice, such Security or
portion thereof shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; provided,
however, that no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such Security; and
provided, further, that, except as otherwise specified as contemplated by
Section 301 with respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is on or prior to the
Redemption Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of business on
the related Regular Record Date according to the terms of such Security and
subject to the provisions of Section 307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed only
in part at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder
of such Security, without service charge, a new Security or Securities of
the same series and Tranche, of any authorized denomination requested by
such Holder and of like tenor and in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security
so surrendered.
ARTICLE FIVE
COVENANTS
SECTION 501. PAYMENT OF SECURITIES.
The Company shall pay the principal of and premium, if any, and
interest, if any, on the Securities of each series in accordance with the
terms of such Securities and this Indenture.
SECTION 502. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the
Securities of each series, or any Tranche thereof, an office or agency
where payment of such Securities shall be made, where the registration of
transfer or exchange of such Securities may be effected and where notices
and demands to or upon the Company in respect of such Securities and this
Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of each such
office or agency and prompt notice to the Holders of any such change in the
manner specified in Section 106. If at any time the Company shall fail to
maintain any such required office or agency in respect of Securities of any
series, or any Tranche thereof, or shall fail to furnish the Trustee with
the address thereof, payment of such Securities shall be made, registration
of transfer or exchange thereof may be effected and notices and demands in
respect thereof may be served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent for all such
purposes in any such event.
The Company may also from time to time designate one or more
other offices or agencies with respect to the Securities of one or more
series, or any Tranche thereof, for any or all of the foregoing purposes
and may from time to time rescind such designations; provided, however,
that, unless otherwise specified as contemplated by Section 301 with
respect to the Securities of such series or Tranche, no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency for such purposes in each Place of Payment for
such Securities in accordance with the requirements set forth above. The
Company shall give prompt written notice to the Trustee, and prompt notice
to the Holders in the manner specified in Section 106, of any such
designation or rescission and of any change in the location of any such
other office or agency.
Anything herein to the contrary notwithstanding, any office or
agency required by this Section may be maintained at an office of the
Company, in which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 503. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to the Securities of any series, or any Tranche thereof, it shall,
on or before each due date of the principal of and premium, if any, and
interest, if any, on any of such Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided. The
Company shall promptly notify the Trustee of any failure by the Company (or
any other obligor on such Securities) to make any payment of principal of
or premium, if any, or interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, on or before
each due date of the principal of and premium, if any, and interest, if
any, on such Securities, deposit with such Paying Agents sums sufficient
(without duplication) to pay the principal and premium or interest so
becoming due, such sums to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee of any
failure by it so to act.
The Company shall cause each Paying Agent for the Securities of
any series, or any Tranche thereof, other than the Company or the Trustee,
to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on such
Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the Company
(or any other obligor upon such Securities) to make any payment
of principal of or premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any such failure,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent and
furnish to the Trustee such information as it possesses regarding
the names and addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company
or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such
Paying Agent and, if so stated in a Company Order delivered to the Trustee,
in accordance with the provisions of Article Six; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of and
premium, if any, or interest, if any, on any Security and remaining
unclaimed for two years after such principal and premium, if any, or
interest, if any, has become due and payable shall be paid to the Company
on Company Request, or, if then held by the Company, shall be discharged
from such trust; and, upon such payment or discharge, the Holder of such
Security shall, as an unsecured general creditor and not as the Holder of
an Outstanding Security, look only to the Company for payment of the amount
so due and payable and remaining unpaid (subject, however, to the
provisions of Article Fourteen), and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
payment to the Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than thirty (30) days from the date of such mailing, any unclaimed balance
of such money then remaining will be paid to the Company.
SECTION 504. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Ten, the
Company shall do or cause to be done all things necessary to preserve and
keep its corporate existence in full force and effect.
SECTION 505. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) all its properties
used or useful in the conduct of its businesses, considered as a whole, to
be maintained and kept in good condition, repair and working order and
shall cause (or, with respect to property owned in common with others, make
reasonable effort to cause) to be made such repairs, renewals,
replacements, betterments and improvements thereof, as, in the judgment of
the Company, may be necessary in order that the operation of such
properties, considered as a whole, may be conducted in accordance with
common industry practice; provided, however, that nothing in this Section
shall prevent the Company from discontinuing, or causing the discontinuance
of, the operation and maintenance of any of its properties; and provided,
further, that nothing in this Section shall prevent the Company from
selling, transferring or otherwise disposing of, or causing the sale,
transfer or other disposition of, any of its properties.
SECTION 506. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in
(a) any covenant or restriction specified with respect to
the Securities of any series, or any Tranche thereof, as
contemplated by Section 301 if before the time for such
compliance the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series and Tranches
with respect to which compliance with such covenant or
restriction is to be omitted, considered as one class, shall, by
Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision
or condition; provided, however, that no such waiver shall be
effective as to any matters contemplated in clause (a), (b) or
(c) in Section 1102 without consent of the Holders specified in
such Section; and
(b) Section 504 or 505 or Article Ten if before the time
for such compliance the Holders of a majority in principal amount
of Securities Outstanding under this Indenture shall, by Act of
such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition;
but, in either case, no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect; provided, however, so long as a
Washington Water Power Trust holds Securities of any series, such trust may
not waive compliance or waive any default in compliance by the Company with
any covenant or other term contained in this Indenture or the Securities of
such series without the approval of the holders of a majority in aggregate
liquidation amount of the outstanding Trust Securities issued by such trust
(other than Trust Securities initially issued and sold to the Company),
obtained as provided in the Declaration establishing such trust.
SECTION 507. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than December 1 in each year, commencing December 1,
____, the Company shall deliver to the Trustee an Officer's Certificate
which need not comply with Section 102, executed by the principal executive
officer, the principal financial officer or the principal accounting
officer of the Company, as to such officer's knowledge of the Company's
compliance with all conditions and covenants under this Indenture, such
compliance to be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 508. RESTRICTION ON PAYMENT OF DIVIDENDS, ETC.
If, at any time (a) there shall have occurred and be continuing
an Event of Default described in clause (a) or (b) of Section 701 with
respect to the Securities of any series, (b) the Company shall have elected
to extend any interest payment period as specified with respect to the
Securities of any series, or any Tranche thereof, as contemplated by
Section 301 and any such period, as so extended, shall be continuing, or
(c) the Company shall be in default in respect of its payment or other
obligations under the Guarantee relating to any Trust Securities (other
than Trust Securities initially issued and sold to the Company), then the
Company shall not (x) declare or pay any dividend on, make any distribution
or liquidation payment with respect to, or redeem or purchase any of its
capital stock, (y) make any payment of principal, premium, if any, or
interest, if any, on or repay, repurchase or redeem any debt securities
(including other Securities) that rank pari passu with or junior in right
of payment to the Securities and (z) make any guarantee payments with
respect to any of the foregoing (other than payments under the Guarantee
relating to any of such Trust Securities); provided, however, that nothing
in this Section shall be deemed to prohibit (i) dividends or distributions
payable in shares of the Company's capital stock, (ii) reclassification of
the Company's capital stock or exchange or conversion of shares of one
class or series of the Company's capital stock into shares of another class
or series of the Company's capital stock, (iii) purchases or other
acquisitions of fractional interests in shares of the Company's capital
stock and (iv) redemption, purchases or other acquisitions of the Company's
capital stock in connection with the satisfaction by the Company of its
obligations, under provisions of the Company's Restated Articles of
Incorporation, as amended, under any direct purchase, dividend
reinvestment, customer purchase or employee benefit plans or under any
contract or security requiring the Company to purchase shares of its
capital stock.
SECTION 509. WASHINGTON WATER POWER TRUSTS.
If Securities of any series are issued and delivered to a
Washington Water Power Trust (or a trustee thereof) in connection with the
issuance by such trust of Trust Securities, so long as such Trust
Securities remain outstanding the Company shall (a) maintain 100% direct
ownership, by the Company or any Affiliate thereof, of the Trust Securities
initially issued and sold to the Company by such Washington Water Power
Trust, except as otherwise provided in Section 1005, and (b) use all
reasonable efforts to cause such Washington Water Power Trust (i) to
maintain its existence as a business trust, except in connection with a
distribution of Securities, with the redemption, purchase or other
acquisition and retirement of all Trust Securities of such trust or with
certain mergers, consolidations or other business combinations, in each
case as permitted by the Declaration establishing such Washington Water
Power Trust, and (ii) to otherwise continue not to be treated as an
association taxable as a corporation for United States federal income tax
purposes.
ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal
amount thereof, shall be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company in respect thereof
shall be satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the Company), in
trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of
such Securities or portions thereof, Eligible Obligations, which
shall not contain provisions permitting the redemption or other
prepayment thereof at the option of the issuer thereof, the
principal of and the interest on which when due, without any
regard to reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any,
due and to become due on such Securities or portions thereof; provided,
however, that in the case of the provision for payment or redemption of
less than all the Securities of any series or Tranche, such Securities or
portions thereof shall have been selected by the Security Registrar as
provided herein and, in the case of a redemption, the notice requisite to
the validity of such redemption shall have been given or irrevocable
authority shall have been given by the Company to the Trustee to give such
notice, under arrangements satisfactory to the Trustee; and provided,
further, that the Company shall have delivered to the Trustee and such
Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that the
money and Eligible Obligations deposited in accordance with this
Section shall be held in trust, as provided in Section 603;
(y) if Eligible Obligations shall have been deposited, an
Opinion of Counsel to the effect that such obligations constitute
Eligible Obligations and do not contain provisions permitting the
redemption or other prepayment thereof at the option of the
issuer thereof, and an opinion of an independent public
accountant of nationally recognized standing, selected by the
Company, to the effect that the other requirements set forth in
clause (b) above have been satisfied; and
(z) if such deposit shall have been made prior to the
Maturity of such Securities, an Officer's Certificate stating the
Company's intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of such Securities or
portions thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by
clauses (x), (y) and (z) above, the Trustee shall, upon Company Request,
acknowledge in writing that such Securities or portions thereof are deemed
to have been paid for all purposes of this Indenture and that the entire
indebtedness of the Company in respect thereof has been satisfied and
discharged as contemplated in this Section. In the event that all of the
conditions set forth in the preceding paragraph shall have been satisfied
in respect of any Securities or portions thereof except that, for any
reason, the Officer's Certificate specified in clause (z) (if otherwise
required) shall not have been delivered, such Securities or portions
thereof shall nevertheless be deemed to have been paid for all purposes of
this Indenture, and the Holders of such Securities or portions thereof
shall nevertheless be no longer entitled to the benefits provided by this
Indenture or of any of the covenants of the Company under Article Five
(except the covenants contained in Sections 502 and 503) or any other
covenants made in respect of such Securities or portions thereof as
contemplated by Section 301, but the indebtedness of the Company in respect
of such Securities or portions thereof shall not be deemed to have been
satisfied and discharged prior to Maturity for any other purpose; and, upon
Company Request, the Trustee shall acknowledge in writing that such
Securities or portions thereof are deemed to have been paid for all
purposes of this Indenture.
If payment at Stated Maturity of less than all of the Securities
of any series, or any Tranche thereof, is to be provided for in the manner
and with the effect provided in this Section, the Security Registrar shall
select such Securities, or portions of principal amount thereof, in the
manner specified by Section 403 for selection for redemption of less than
all the Securities of a series or Tranche.
In the event that Securities which shall be deemed to have been
paid for purposes of this Indenture, and, if such is the case, in respect
of which the Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section, do not mature and are not to
be redeemed within the sixty (60) day period commencing with the date of
the deposit of moneys or Eligible Obligations, as aforesaid, the Company
shall, as promptly as practicable, give a notice, in the same manner as a
notice of redemption with respect to such Securities, to the Holders of
such Securities to the effect that such deposit has been made and the
effect thereof.
Notwithstanding that any Securities shall be deemed to have been
paid for purposes of this Indenture, as aforesaid, the obligations of the
Company and the Trustee in respect of such Securities under Sections 304,
305, 306, 404, 502, 503, 807 and 814 and this Article shall survive.
The Company shall pay, and shall indemnify the Trustee or any
Paying Agent with which Eligible Obligations shall have been deposited as
provided in this Section against, any tax, fee or other charge imposed on
or assessed against such Eligible Obligations or the principal or interest
received in respect of such Eligible Obligations, including, but not
limited to, any such tax payable by any entity deemed, for tax purposes, to
have been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at any
time after a Security would be deemed to have been paid for purposes of
this Indenture, and, if such is the case, the Company's indebtedness in
respect thereof would be deemed to have been satisfied and discharged,
pursuant to this Section (without regard to the provisions of this
paragraph), the Trustee or any Paying Agent, as the case may be, shall be
required to return the money or Eligible Obligations, or combination
thereof, deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy, insolvency
or other similar law, such Security shall thereupon be deemed retroactively
not to have been paid and any satisfaction and discharge of the Company's
indebtedness in respect thereof shall retroactively be deemed not to have
been effected, and such Security shall be deemed to remain Outstanding and
(b) any satisfaction and discharge of the Company's indebtedness in respect
of any Security shall be subject to the provisions of the last paragraph of
Section 503.
SECTION 602. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as hereinafter expressly provided), and the Trustee, at the
expense of the Company, shall execute such instruments as the Company shall
reasonably request to evidence and acknowledge the satisfaction and
discharge of this Indenture, when:
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of
Section 601, any Security, previously deemed to have been paid for purposes
of this Indenture, shall be deemed retroactively not to have been so paid,
this Indenture shall thereupon be deemed retroactively not to have been
satisfied and discharged, as aforesaid, and to remain in full force and
effect, and the Company shall execute and deliver such instruments as the
Trustee shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture
as aforesaid, the obligations of the Company and the Trustee under Sections
304, 305, 306, 404, 502, 503, 807 and 814 and this Article shall survive.
Upon satisfaction and discharge of this Indenture as provided in
this Section, the Trustee shall turn over to the Company any and all money,
securities and other property then held by the Trustee for the benefit of
the Holders of the Securities (other than money and Eligible Obligations
held by the Trustee pursuant to Section 603) and shall execute and deliver
to the Company such instruments as, in the judgment of the Company, shall
be necessary, desirable or appropriate to effect or evidence the
satisfaction and discharge of this Indenture.
SECTION 603. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited pursuant
to Section 601, nor the principal or interest payments on any such Eligible
Obligations, shall be withdrawn or used for any purpose other than, and
shall be held in trust for, the payment of the principal of and premium, if
any, and interest, if any, on the Securities or portions of principal
amount thereof in respect of which such deposit was made, all subject, how-
ever, to the provisions of Section 503; provided, however, that any cash
received from such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose, shall, to the extent
practicable and upon Company Request and delivery to the Trustee of the
documents referred to in clause (y) in the first paragraph of Section 601,
be invested in Eligible Obligations of the type described in clause (b) in
the first paragraph of Section 601 maturing at such times and in such
amounts as shall be sufficient, together with any other moneys and the
proceeds of any other Eligible Obligations then held by the Trustee, to pay
when due the principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof on and prior to
the Maturity thereof, and interest earned from such reinvestment shall be
paid over to the Company as received, free and clear of any trust, lien or
pledge under this Indenture; and provided, further, that any moneys held in
accordance with this Section on the Maturity of all such Securities in
excess of the amount required to pay the principal of and premium, if any,
and interest, if any, then due on such Securities shall be paid over to the
Company free and clear of any trust, lien or pledge under this Indenture;
and provided, further, that if an Event of Default shall have occurred and
be continuing, moneys to be paid over to the Company pursuant to this
Section shall be held until such Event of Default shall have been waived or
cured.
ARTICLE SEVEN
EVENTS OF DEFAULT; REMEDIES
SECTION 701. EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein with respect to the
Securities of any series, means any of the following events which shall
have occurred and be continuing:
(a) failure to pay interest, if any, on any Security of such
series within sixty (60) days after the same becomes due and payable
(whether or not payment is prohibited by the provisions of Article
Fourteen); provided, however, that no such failure shall constitute an
"Event of Default" if the Company shall have made a valid extension of
the interest payment period with respect to the Securities of such
series if so provided with respect to such series as contemplated by
Section 301; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series within three (3) Business Days after its
Maturity (whether or not payment is prohibited by the provisions of
Article Fourteen); provided, however, that no such failure shall
constitute an "Event of Default" if the Company shall have made a
valid extension of the Maturity of the Securities of such series if so
provided with respect to such series as contemplated by Section 301;
or
(c) failure to perform or breach of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a
default in the performance of which or breach of which is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more
series of Securities other than such series) for a period of ninety
(90) days after there has been given, by registered or certified mail,
to the Company by the Trustee, or to the Company and the Trustee by
the Holders of at least thirty-three per centum (33%) in principal
amount of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "NOTICE OF DEFAULT" hereunder, unless
the Trustee, or the Trustee and the Holders of a principal amount of
Securities of such series not less than the principal amount of
Securities the Holders of which gave such notice, as the case may be,
shall agree in writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the Trustee and
the Holders of such principal amount of Securities of such series, as
the case may be, shall be deemed to have agreed to an extension of
such period if corrective action is initiated by the Company within
such period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the premises of
(i) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official for the
Company or for any substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and any such decree or order
for relief or any such other decree or order shall have remained un-
stayed and in effect for a period of ninety (90) consecutive days; or
(e) the commencement by the Company of a voluntary case or pro-
ceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in a
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State law, or the consent by
it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial
part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the
authorization of such action by the Board of Directors; or
(f) If such Securities shall have been issued and delivered to a
Washington Water Power Trust (or a trustee thereof) in connection with
the issuance by such trust of Trust Securities and so long as such
Trust Securities remain outstanding, such Washington Water Power Trust
shall have voluntarily or involuntarily dissolved, wound-up its
business or otherwise terminated its existence except in connection
with (i) the distribution of Securities to holders of Trust Securities
in liquidation of their interests in such trust, (ii) the redemption
of all or the outstanding Trust Securities of such trust or (iii)
certain mergers, consolidations or other business combinations, each
as permitted by the Declaration establishing such trust.
SECTION 702. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default shall have occurred and be continuing with
respect to Securities of any series at the time Outstanding, then in every
such case the Trustee or the Holders of not less than thirty-three per
centum (33%) in principal amount of the Outstanding Securities of such
series may declare the principal amount (or, if any of the Securities of
such series are Discount Securities, such portion of the principal amount
of such Securities as may be specified in the terms thereof as contemplated
by Section 301) of all of the Outstanding Securities of such series to be
due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon such declaration such principal
amount (or specified amount), together with premium, if any, and accrued
interest, if any, thereon, shall become immediately due and payable;
provided, however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities, the Trustee
or the Holders of not less than thirty-three per centum (33%) in aggregate
principal amount of the Outstanding Securities of all such series,
considered as one class, may make such declaration of acceleration, and not
the Holders of the Securities of any one of such series.
At any time after such a declaration of acceleration with respect
to Securities of any series shall have been made, but before a judgment or
decree for payment of the money due shall have been obtained by the Trustee
as provided in this Article, the Event or Events of Default giving rise to
such declaration of acceleration shall, without further act, be deemed to
have been cured, and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(i) all overdue interest, if any, on all Securities of
such series then Outstanding;
(ii) the principal of and premium, if any, on any
Securities of such series then Outstanding which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in
such Securities;
(iii) interest upon overdue interest at the rate or
rates prescribed therefor in such Securities, to the extent
that payment of such interest is lawful; and
(iv) all amounts due to the Trustee under Section 807;
and
(b) any other Event or Events of Default with respect to
Securities of such series, other than the non-payment of the
principal of Securities of such series which shall have become
due solely by such declaration of acceleration, shall have been
cured or waived as provided in Section 713.
No such rescission shall affect any subsequent Event of Default or impair
any right consequent thereon.
SECTION 703. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
If an Event of Default described in clause (a) or (b) of Section
701 shall have occurred and be continuing, the Company shall, upon demand
of the Trustee, pay to it, for the benefit of the Holders of the Securities
of the series with respect to which such Event of Default shall have
occurred, the whole amount then due and payable on such Securities for
principal and premium, if any, and interest, if any, and, in addition
thereto, such further amount as shall be sufficient to cover any amounts
due to the Trustee under Section 807.
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series
shall have occurred and be continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 704. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, to the extent permitted by law, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or premium, if any, or interest, if any, upon
presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 807;
SECOND: To the payment of the whole amount then due and unpaid
upon the Outstanding Securities for principal and premium, if any, and
interest, if any, in respect of which or for the benefit of which such
money has been collected; and in case such proceeds shall be
insufficient to pay in full the whole amount so due and unpaid upon
such Securities, then to the payment of such principal and interest,
if any, thereon without any preference or priority, ratably according
to the aggregate amount so due and unpaid, with any balance then
remaining to the payment of premium, if any, and, if so specified as
contemplated by Section 301 with respect to the Securities of any
series, or any Tranche thereof, interest, if any, on overdue premium,
if any, and overdue interest, if any, ratably as aforesaid, all to the
extent permitted by applicable law;
THIRD: To the payment of the remainder, if any, to the Company
or to whomsoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct.
SECTION 705. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for amounts due to the Trustee under Section 807)
and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amounts due it under Section 807.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 706. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or on the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
in respect of which such judgment has been recovered.
SECTION 707. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(a) such Holder shall have previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of such series;
(b) the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series in respect of which an Event
of Default shall have occurred and be continuing, considered as one
class, shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for sixty (60) days after its receipt of such
notice, request and offer of indemnity shall have failed to institute
any such proceeding; and
(e) no direction inconsistent with such written request shall
have been given to the Trustee during such sixty (60) day period by
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series in respect of which an Event of
Default shall have occurred and be continuing, considered as one
class.
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 708. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional,
to receive payment of the principal of and premium, if any, and (subject to
Section 307) interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 709. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company,
the Trustee and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of
the Trustee and such Holder shall continue as though no such proceeding had
been instituted.
SECTION 710. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 711. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 712. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing in
respect of a series of Securities, the Holders of a majority in principal
amount of the Outstanding Securities of such series shall have the right to
direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be continuing
with respect to more than one series of Securities, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of all
such series, considered as one class, shall have the right to make such
direction, and not the Holders of the Securities of any one of such series;
and provided, further, that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture, and could not involve the Trustee in personal
liability in circumstances where indemnity would not, in the Trustee's
sole discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 713. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities
of such series waive any past default with respect to such series hereunder
and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Section 1102 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected; provided,
however, that so long as a Washington Water Power Trust holds the
Securities of any series, such trust may not waive any past default
without the consent of a majority in aggregate liquidation amount of
the outstanding Trust Securities issued by such trust (other than
Trust Securities initially issued and sold to the Company) obtained as
provided in the Declaration establishing such trust.
Upon any such waiver, such default shall cease to exist, and any
and all Events of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
SECTION 714. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by its
acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than ten per centum (10%) in aggregate principal amount of
the Outstanding Securities of all series in respect of which such suit may
be brought, considered as one class, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of or premium,
if any, or interest, if any, on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 715. WAIVER OF STAY OR EXTENSION LAWS.
To the full extent that it may lawfully so agree, the Company
shall not at any time set up, claim or otherwise seek to take the benefit
or advantage of any stay or extension law, now or hereafter in effect, in
order to prevent or hinder the enforcement of this Indenture; and the
Company, for itself and all who may claim under it, so far as it or they
now or hereafter may lawfully do so, hereby waives the benefit of all such
laws.
SECTION 716. ACTION BY HOLDERS OF CERTAIN TRUST SECURITIES.
If the Securities of any series shall be held by the
Institutional Trustee of a Washington Water Power Trust and if such
Institutional Trustee, as such Holder, shall have failed to exercise any of
the rights and remedies available under this Indenture to the Holders of
such Securities, the holders of the Trust Securities issued by such trust
(other than Trust Securities initially issued and sold to the Company)
shall have and may exercise all such rights and remedies, to the same
extent as if such holders of such Trust Securities held a principal amount
of Securities of such series equal to the liquidation amount of such Trust
Securities, without first proceeding against such trustee or trust.
Notwithstanding the foregoing, in the case of an Event of Default described
in clause (a) or (b) of Section 701, each holder of such Trust Securities
shall have and may exercise all rights available to the Institutional
Trustee under Section 708 as the Holder of the Securities of such series.
If action shall have been taken by both the Holders and the
holders of Trust Securities (other than Trust Securities initially issued
and sold to the Company) to exercise such rights as contemplated in the
preceding paragraph, the action taken by holders of Trust Securities shall
control. Any such action taken by registered holders of Trust Securities
shall be evidenced to the Trustee in the same manner as an Act of Holders,
as provided in Section 104(a). The Trustee shall be entitled to rely on
the books and records of the related Washington Water Power Trust in
determining the identities of the holders of Trust Securities (and, upon
the reasonable request of the Trustee, the Company, as the sponsor of such
trust, shall, at its own expense, promptly provide copies of applicable
portions of such books and records to the Trustee to the extent reasonably
necessary to enable the Trustee to make such determination).
ARTICLE EIGHT
THE TRUSTEE
SECTION 801. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with
respect to Securities of any series,
(i) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as
are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may, with respect to Securities of such series, conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee shall
exercise, with respect to Securities of such series, such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any one or more
series, as provided herein, relating to the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of
such series; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 802. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder with
respect to the Securities of any series to the Holders of Securities of
such series in the manner and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured or waived;
provided, however, that in the case of any default of the character
specified in Section 701(c), no such notice to Holders shall be given until
at least seventy-five (75) days after the occurrence thereof; and provided,
further, that, subject to the provisions of Section 801, the Trustee shall
not be deemed to have knowledge of such default unless either (i) a
Responsible Officer of the Trustee shall have actual knowledge of such
default or (ii) the Trustee shall have received written notice thereof from
the Company or any Holder. For the purpose of this Section, the term "DE-
FAULT" means any event which is, or after notice or lapse of time, or both,
would become, an Event of Default.
SECTION 803. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 801 and to the applicable
provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties;
(b) any request, direction or act of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order, or as otherwise expressly provided herein, and any resolution
of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence is specifically prescribed herein) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture, unless such Holder
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it complying with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall (subject to applicable
legal requirements) be entitled to examine, during normal business
hours, the books, records and premises of the Company, personally or
by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of any Event
of Default with respect to the Securities of any series for which it
is acting as Trustee unless either (i) a Responsible Officer of the
Trustee shall have actual knowledge of the Event of Default or (ii)
written notice of such Event of Default shall have been given to the
Trustee by the Company, any other obligor on such Securities or by any
Holder of such Securities.
SECTION 804. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of
the Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 805. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying Agent,
any Security Registrar or any other agent of the Company or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 808 and 813, may otherwise deal with
the Company with the same rights it would have if it were not such Trustee,
Authenticating Agent, Paying Agent, Security Registrar or other agent.
SECTION 806. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law. The
Trustee shall be under no liability for interest on or investment of any
money received by it hereunder except as expressly provided herein or
otherwise agreed with, and for the sole benefit of, the Company.
SECTION 807. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse the
Trustee upon its request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except to the extent that any such expense, disbursement or
advance may be attributable to its negligence, wilful misconduct or
bad faith; and
(c) indemnify the Trustee and hold it harmless from and against
any loss, liability or expense reasonably incurred by it arising out
of or in connection with the acceptance or administration of the trust
or trusts hereunder or the performance of its duties hereunder,
including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the
extent any such loss, liability or expense may be attributable to its
negligence, wilful misconduct or bad faith.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such other
than property and funds held in trust under Section 603 (except moneys
payable to the Company as provided in Section 603). "TRUSTEE" for purposes
of this Section shall include any predecessor Trustee; provided, however,
that the negligence, wilful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee hereunder.
SECTION 808. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest
within the meaning of the Trust Indenture Act, it shall either eliminate
such conflicting interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in the Trust Indenture
Act and this Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any series, shall not
be deemed to have a conflicting interest arising from its capacity as
trustee in respect of the Securities of any other series.
SECTION 809. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of
the United States, any State or Territory thereof or the District of
Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least Fifty
Million Dollars ($50,000,000) and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least Fifty Million Dollars
($50,000,000) or the Dollar equivalent of the applicable foreign
currency and subject to supervision or examination by authority of
such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to
United States institutional trustees,
and, in either case, qualified and eligible under this Article and the
Trust Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of such supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 810. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in accordance
with the applicable requirements of Section 811.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 811 shall not have been delivered to the Trustee within thirty
(30) days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the
Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 808 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder for at least six months, or
(ii) the Trustee shall cease to be eligible under Section
809 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove
the Trustee with respect to all Securities or (y) subject to Section 714,
any Holder who has been a bona fide Holder for at least six (6) months may,
on behalf of itself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause (other than as contemplated in clause (y) in subsection (d) of this
Section), with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall take prompt steps to appoint a
successor Trustee or Trustees with respect to the Securities of that or
those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the
applicable requirements of Section 811. If, within one (1) year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable
requirements of Section 811, become the successor Trustee with respect to
the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 811,
any Holder who has been a bona fide Holder of a Security of such series for
at least six (6) months may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
(f) So long as no event which is, or after notice or lapse of
time, or both, would become, an Event of Default shall have occurred and be
continuing, if the Company shall have delivered to the Trustee with respect
to the Securities of one or more series (i) a Board Resolution appointing a
successor Trustee or Trustees with respect to that or those series,
effective as of a date specified therein, and (ii) an instrument of
acceptance of such appointment, effective as of such date, by such
successor Trustee or Trustees in accordance with Section 811, the Trustee
or Trustees with respect to that or those series shall be deemed to have
resigned as contemplated in subsection (b) of this Section, the successor
Trustee or Trustees shall be deemed to have been appointed pursuant to
subsection (e) of this Section and such appointment shall be deemed to have
been accepted as contemplated in Section 811, all as of such date, and all
other provisions of this Section and Section 811 shall be applicable to
such resignation, appointment and acceptance except to the extent
inconsistent with this subsection (f).
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series as their names
and addresses appear in the Security Register. Each notice shall include
the name of the successor Trustee with respect to the Securities of such
series and the address of its corporate trust office.
SECTION 811. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of all series, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, shall become
vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of all sums owed to it, execute and
deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Securities of such series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts here-
under administered by any other such Trustee; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee, upon payment of all sums owed to
it, shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any instruments which fully vest in and confirm to such
successor Trustee all rights, powers and trusts referred to in subsection
(a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 812. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 813. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company or
any other obligor upon the Securities (other than by reason of a
relationship described in Section 311(b) of the Trust Indenture Act), the
Trustee shall be subject to any and all applicable provisions of the Trust
Indenture Act regarding the collection of claims against the Company or
such other obligor. For purposes of Section 311(b) of the Trust Indenture
Act:
(a) the term "CASH TRANSACTION" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand; and
(b) the term "SELF-LIQUIDATING PAPER" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company or such obligor for the purpose of financing
the purchase, processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company or such
obligor arising from the making, drawing, negotiating or incurring of
the draft, xxxx of exchange, acceptance or obligation.
SECTION 814. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Securities of one or more series, or any Tranche thereof,
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series or Tranche issued upon original issuance,
exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of Securities
by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentica-
tion executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States, any State or Territory thereof or the District of Columbia
or the Commonwealth of Puerto Rico, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less
than Fifty Million Dollars ($50,000,000) and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If at
any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all
or substantially all of the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company.
Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
The provisions of Sections 308, 804 and 805 shall be applicable
to each Authenticating Agent.
If an appointment with respect to the Securities of one or more
series, or any Tranche thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
________________________
As Trustee
By______________________
As Authenticating Agent
By______________________
Authorized Officer
If all of the Securities of a series may not be originally issued
at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel), shall appoint, in accordance
with this Section and in accordance with such procedures as shall be
acceptable to the Trustee, an Authenticating Agent having an office in a
Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE NINE
LISTS OF HOLDERS; REPORTS BY TRUSTEE AND COMPANY
SECTION 901. LISTS OF HOLDERS.
Semiannually, not later than June 30 and December 31 in each
year, commencing June 30, ____, and within 30 days of such other times as
the Trustee may request in writing, the Company shall furnish or cause to
be furnished to the Trustee information as to the names and addresses of
the Holders, as of a date no more than fifteen (15) days prior to the date
such information is so furnished, and the Trustee shall preserve such
information and similar information received by it in any other capacity
and afford to the Holders access to information so preserved by it, all to
such extent, if any, and in such manner as shall be required by the Trust
Indenture Act; provided, however, that no such list need be furnished so
long as the Trustee shall be the Security Registrar.
SECTION 902. REPORTS BY TRUSTEE AND COMPANY.
Not later than July 15 in each year, commencing July 15, ____,
the Trustee shall transmit to the Holders, the Commission and each
securities exchange upon which any Securities are listed, a report, dated
as of the next preceding May 15, with respect to any events and other
matters described in Section 313(a) of the Trust Indenture Act, in such
manner and to the extent required by the Trust Indenture Act. The Trustee
shall transmit to the Holders, the Commission and each securities exchange
upon which any Securities are listed, and the Company shall file with the
Trustee (within thirty (30) days after filing with the Commission in the
case of reports which pursuant to the Trust Indenture Act must be filed
with the Commission and furnished to the Trustee) and transmit to the
Holders, such other information, reports and other documents, if any, at
such times and in such manner, as shall be required by the Trust Indenture
Act. The Company shall notify the Trustee of the listing of any Securities
on any securities exchange.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE
OR OTHER TRANSFER
SECTION 1001. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation, or convey or otherwise transfer, or lease, all of its
properties, as or substantially as an entirety, to any Person, unless:
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
other transfer, or which leases (for a term extending beyond the last
Stated Maturity of the Securities then Outstanding), all of the
properties of the Company, as or substantially as an entirety, shall
be a corporation organized and existing under the laws of the United
States, any State or Territory thereof or the District of Columbia or
under the laws of Canada or any Province thereof (such corporation
being hereinafter sometimes called the "SUCCESSOR CORPORATION") and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form reasonably satisfactory to the
Trustee, the due and punctual payment of the principal of and premium,
if any, and interest, if any, on all the Securities then Outstanding
and the performance and observance of every covenant and condition of
this Indenture to be performed or observed by the Company; and
(b) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each of which shall state that
such consolidation, merger, conveyance or other transfer or lease, and
such supplemental indenture, comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
Anything in this Indenture to the contrary notwithstanding, the
conveyance or other transfer by the Company of all of its facilities (a)
for the generation of electric energy, (b) for the transmission of electric
energy or (c) for the distribution of electric energy and/or natural gas,
in each case considered alone, or all of its facilities described in
clauses (a) and (b), considered together, or all of its facilities
described in clauses (b) and (c), considered together, shall in no event be
deemed to constitute a conveyance or other transfer of all the properties
of the Company, as or substantially as an entirety, unless, immediately
following such conveyance or other transfer, the Company shall own no
properties in the other such categories of property not so conveyed or
otherwise transferred. The character of particular facilities shall be
determined by reference to the Uniform System of Accounts prescribed for
public utilities and licensees subject to the Federal Power Act, as
amended, to the extent applicable.
SECTION 1002. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger or any conveyance or other
transfer of all the properties of the Company, as or substantially as an
entirety, in accordance with Section 1001, the Successor Corporation shall
succeed to, and be substituted for, and may exercise every power and right
of, the Company under this Indenture with the same effect as if such
Successor Corporation had been named as the "Company" herein. Without
limiting the generality of the foregoing, the Successor Corporation may
execute and deliver to the Trustee, and thereupon the Trustee shall,
subject to the provisions of Article Three, authenticate and deliver,
Securities. All Securities so executed by the Successor Corporation, and
authenticated and delivered by the Trustee, shall in all respects be
entitled to the benefits provided by this Indenture equally and ratably
with all Securities executed, authenticated and delivered prior to the time
such consolidation, merger, conveyance or other transfer became effective.
SECTION 1003. RELEASE OF COMPANY UPON CONVEYANCE OR OTHER TRANSFER.
In the case of a conveyance or other transfer to any Person or
Persons as contemplated in Section 1001, upon the satisfaction of all the
conditions specified in Section 1001 the Company (such term being used in
this Section without giving effect to such transaction) shall be released
and discharged from all obligations and covenants under this Indenture and
on and under all Securities then Outstanding (unless the Company shall have
delivered to the Trustee an instrument in which it shall waive such release
and discharge) and the Trustee shall acknowledge in writing that the
Company has been so released and discharged.
SECTION 1004. MERGER INTO COMPANY.
Nothing in this Indenture shall be deemed to prevent or restrict
any consolidation or merger after the consummation of which the Company
would be the surviving or resulting corporation or any conveyance or other
transfer, or lease of any part of the properties of the Company which does
not constitute the entirety, or substantially the entirety, thereof.
SECTION 1005. TRANSFER OF LESS THAN THE ENTIRETY.
(a) If the Company shall have conveyed or otherwise transferred any
part of its properties which does not constitute the entirety, or
substantially the entirety, thereof to another corporation meeting the
requirements set forth in clause (a) of the first paragraph of Section 1001
and if:
(i) the transferee of such part of the properties of the Company
shall have executed and delivered to the Trustee an indenture
supplemental hereto, in form reasonably satisfactory to the Trustee,
which contains an assumption by such transferee of the due and
punctual payment of the principal of and premium, if any, and
interest, if any, on all the Securities then Outstanding and the
performance and observance of every covenant and condition of this
Indenture to be performed or observed by the Company;
(ii) there shall have been delivered to the Trustee an
Independent Expert's Certificate
(A) describing the property so conveyed or otherwise
transferred (such description of property to be made by reference
either to specific items, units and/or elements of property or
portions thereof, on a percentage or Dollar basis, or to
properties reflected in specified accounts in the Company's books
of account or portions thereof, on a Dollar basis); provided,
however, that such property shall be identified in such
certificate as facilities for the generation, transmission or
destruction of electric energy or for the storage, transportation
or distribution of natural gas;
(B) stating, in the judgment of the signers, the Fair Value
to the transferee of the property so conveyed or otherwise
transferred;
(C) stating an amount equal to seventy percent (70%) of the
amount stated pursuant to clause (B) above;
(D) stating an amount equal to the aggregate principal
amount of the Securities then Outstanding; and
(E) stating that the amount stated pursuant to clause (D)
above does not exceed the amount stated pursuant to clause (C)
above;
(iii) the Company shall have assigned or otherwise transferred
to such transferee all Trust Securities (initially issued and sold to
the Company) then outstanding, and such transferee shall have
expressly assumed all obligations under all Guarantees; and
(iv) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel each of which shall
state that such conveyance or other transfer and such supplemental
indenture comply with this Section and that all conditions precedent
relating to such transactions provided for in this Section and
otherwise in this Indenture have been complied with;
then, upon the satisfaction of all such conditions,
(x) the Company shall be released and discharged from all
obligations and covenants under this Indenture and on and under all
Securities then Outstanding (unless the Company shall have delivered
to the Trustee an instrument in which it shall waive such release and
discharge), and the Trustee shall acknowledge in writing that the
Company has been so released and discharged; and
(y) if the Company shall have been released and discharged as
contemplated in clause (x) above, such transferee shall succeed to,
and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such
transferee had been named the "Company" herein; and without limiting
the generality of the foregoing, such transferee shall be deemed a
"Successor Corporation" for purposes of Section 1002 and for all other
purposes of this Indenture.
(b) For purposes of this Section:
"FAIR VALUE" means the fair value of such property so
conveyed or otherwise transferred as may be determined by
reference to (a) the amount which would be likely to be obtained
in an arm's-length transaction with respect to such property
between an informed and willing buyer and an informed and willing
seller, under no compulsion, respectively, to buy or sell, (b)
the amount of investment with respect to such property which,
together with a reasonable return thereon, would be likely to be
recovered through ordinary business operations or otherwise, (c)
the cost, accumulated depreciation and replacement cost with
respect to such property and/or (d) any other relevant factors;
provided, however, that (x) the Fair Value of property shall be
determined without deduction for any mortgage, deed of trust,
pledge, security interest, encumbrance, lease, reservation,
restriction, servitude, charge or similar right or any other lien
of any kind on such property and (y) the Fair Value to the
transferee of any property shall not reflect any reduction
relating to the fact that such property may be of less value to a
Person which is not the owner or operator of the property or any
portion thereof than to a Person which is such owner or operator.
Fair Value may be determined, without physical inspection, by the
use of accounting and engineering records and other data
maintained by the Company or the transferee or otherwise
available to the Expert certifying the same.
"INDEPENDENT EXPERT'S CERTIFICATE" means a certificate
signed by an authorized officer of the transferee and by an
Independent Expert (which Independent Expert shall be selected
either by the board of directors or by an authorized officer of
the transferee, the execution of such certificate by such
authorized officer to be conclusive evidence of such selection)
and delivered to the Trustee. For purposes of this definition,
(a) "EXPERT" means a Person which is an engineer, appraiser or
other expert and which, with respect to any certificate to be
signed by such Person and delivered to the Trustee, is qualified
to pass upon the matter set forth in such certificate; (b)
"ENGINEER" means a Person engaged in the engineering profession
or otherwise qualified to pass upon engineering matters
(including, but not limited to, a Person licensed as a
professional engineer, whether or not then engaged in the
engineering profession) and (c) "APPRAISER" means a Person
engaged in the business of appraising property or otherwise
qualified to pass upon the Fair Value or fair market value of
property. "INDEPENDENT", when applied to any Expert, means such
a Person who (a) is in fact independent, (b) does not have any
direct material financial interest in the transferee or in any
obligor upon the Securities or in any Affiliate of the
transferee, (c) is not connected with the transferee or such
other obligor as an officer, employee, promoter, underwriter,
trustee, partner, director or any person performing similar
functions and (d) is approved by the Trustee in the exercise of
reasonable care.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for
any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities, all as provided in
Article Ten; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit of
the Holders of, or to remain in effect only so long as there
shall be Outstanding, Securities of one or more specified series,
or one or more specified Tranches thereof, or to surrender any
right or power herein conferred upon the Company; or
(c) to change or eliminate any provision of this Indenture
or to add any new provision to this Indenture; provided, however,
that if such change, elimination or addition shall adversely
affect the interests of the Holders of Securities of any series
or Tranche in any material respect, such change, elimination or
addition shall become effective with respect to such series or
Tranche only when no Security of such series or Tranche remains
Outstanding; or
(d) to provide collateral security for the Securities; or
(e) to establish the form or terms of Securities of any
series or Tranche as contemplated by Sections 201 and 301; or
(f) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto representing
interest, if any, thereon and for the procedures for the
registration, exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or consent of, the
holders thereof, and for any and all other matters incidental
thereto; or
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
811(b); or
(h) to provide for the procedures required to permit the
Company to utilize, at its option, a non-certificated system of
registration for all, or any series or Tranche of, the Securi-
ties; or
(i) to change any place or places where (1) the principal
of and premium, if any, and interest, if any, on all or any
series of Securities, or any Tranche thereof, shall be payable,
(2) all or any series of Securities, or any Tranche thereof, may
be surrendered for registration of transfer, (3) all or any
series of Securities, or any Tranche thereof, may be surrendered
for exchange and (4) notices and demands to or upon the Company
in respect of all or any series of Securities, or any Tranche
thereof, and this Indenture may be served; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein; or to make any other changes to the
provisions hereof or to add other provisions with respect to
matters or questions arising under this Indenture, provided that
such other changes or additions shall not adversely affect the
interests of the Holders of Securities of any series or Tranche
in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of
this Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes
to any provisions hereof or the inclusion herein of any
additional provisions, or shall by operation of law be deemed to
effect such changes or incorporate such provisions by reference
or otherwise, this Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust Indenture Act,
and the Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to evidence
such amendment hereof; or
(y) if any such amendment shall permit one or more changes
to, or the elimination of, any provisions hereof which, at the
date of the execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture Act to be
contained herein or are contained herein to reflect any
provisions of the Trust Indenture Act as in effect at such date,
this Indenture shall be deemed to have been amended to effect
such changes or elimination, and the Company and the Trustee may,
without the consent of any Holders, enter into an indenture
supplemental hereto to amend this Indenture to effect such
changes or elimination.
SECTION 1102. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 1101, with the consent of
the Holders of a majority in aggregate principal amount of the Securities
of all series then Outstanding under this Indenture, considered as one
class, by Act of said Holders delivered to the Company and the Trustee, the
Company and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this
Indenture; provided, however, that if there shall be Securities of more
than one series Outstanding hereunder and if a proposed supplemental
indenture shall directly affect the rights of the Holders of Securities of
one or more, but less than all, of such series, then the consent only of
the Holders of a majority in aggregate principal amount of the Outstanding
Securities of all series so directly affected, considered as one class,
shall be required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if the proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches, then the
consent only of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all Tranches so directly affected, considered
as one class, shall be required; and provided, further, that no such
supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security other
than pursuant to the terms thereof, or reduce the principal
amount thereof or the rate of interest thereon (or the amount of
any installment of interest thereon) or change the method of
calculating such rate or reduce any premium payable thereon, or
reduce the amount of the principal of any Discount Security that
would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 702, or change the coin
or currency (or other property), in which any Security or
premium, if any, or interest, if any, thereon is payable, or
impair the right to institute suit for the enforcement of any
such payment on or after the Maturity of any Security, without,
in any such case, the consent of the Holder of such Security; or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, or any Tranche thereof, the
consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with any provision of this
Indenture or of any default hereunder and its consequences, or
reduce the requirements of Section 1204 for quorum or voting,
without, in any such case, the consent of the Holder of each
Outstanding Security of such series or Tranche; or
(c) modify any of the provisions of this Section, Section
506 or Section 713 with respect to the Securities of any series
or any Tranche thereof (except to increase the percentages in
principal amount referred to in this Section or such other
Sections or to provide that other provisions of this Indenture
cannot be modified or waived without the consent of the Holders
of all Securities of such series or Tranche) without, in any such
case, the consent of the Holder of each Outstanding Security of
such series or Tranche; provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect
to changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 811(b) and 1101(g).
A supplemental indenture which (x) changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of the Holders of, or which is to remain in
effect only so long as there shall be Outstanding, Securities of one or
more specified series, or one or more Tranches thereof, or (y) modifies the
rights of the Holders of Securities of such series or Tranches with respect
to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other
series or Tranche.
Notwithstanding the foregoing, so long as the Securities of any
series are held by a Washington Water Power Trust, the trustee may not
consent to a supplemental indenture under this Section 1102 without the
prior consent, obtained as provided in the Declaration establishing such
trust of the holders of a majority in aggregate liquidation amount of all
Trust Securities issued by such trust (other than Trust Securities
initially issued and sold to the Company), or, in the case of changes
described in clauses (a), (b) and (c) above, 100% in aggregate liquidation
amount of all such Trust Securities then outstanding.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 1103. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 801) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise.
SECTION 1104. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution and delivery of any supplemental indenture
under this Article this Indenture shall be modified in accordance there-
with, and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby. Any
supplemental indenture permitted by this Article may restate this Indenture
in its entirety, and, upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore in effect for all
purposes.
SECTION 1105. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 1106. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series, or any Tranche thereof, authenticated
and delivered after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities
of any series, or any Tranche thereof, so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series or
Tranche.
SECTION 1107. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
To the extent, if any, that the terms of any particular series of
Securities shall have been established in or pursuant to a Board Resolution
or an Officer's Certificate pursuant to a supplemental indenture or a Board
Resolution as contemplated by Section 301, and not in a supplemental
indenture, additions to, changes in or the elimination of any of such terms
may be effected by means of a supplemental Board Resolution or a
supplemental Officer's Certificate, as the case may be, delivered to, and
accepted by, the Trustee; provided, however, that such supplemental Board
Resolution or supplemental Officer's Certificate shall not be accepted by
the Trustee or otherwise be effective unless all conditions set forth in
this Indenture which would be required to be satisfied if such additions,
changes or elimination were contained in a supplemental indenture shall
have been appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Board Resolution or supplemental Officer's
Certificate shall be deemed to be a "supplemental indenture" for purposes
of Section 1104 and 1106.
ARTICLE TWELVE
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1201. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, may be called at any time and
from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series or Tranches.
SECTION 1202. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section 1201, to be held at such time
and (except as provided in subsection (b) of this Section) at such place in
the Borough of Manhattan, The City of New York, as the Trustee shall
determine, or, with the approval of the Company, at any other place.
Notice of every such meeting, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less
than twenty-one (21) nor more than one hundred eighty (180) days prior to
the date fixed for the meeting.
(b) The Trustee may be asked to call a meeting of the Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, by the Company or by the Holders of thirty-three per centum (33%)
in aggregate principal amount of all of such series and Tranches,
considered as one class, for any purpose specified in Section 1201, by
written request setting forth in reasonable detail the action proposed to
be taken at the meeting. If the Trustee shall have been asked by the
Company to call such a meeting, the Company shall determine the time and
place for such meeting and may call such meeting by giving notice thereof
in the manner provided in subsection (a) of this Section, or shall direct
the Trustee, in the name and at the expense of the Company, to give such
notice. If the Trustee shall have been asked to call such a meeting by
Holders in accordance with this subsection (b), and the Trustee shall not
have given the notice of such meeting within twenty-one (21) days after
receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Holders of Securities of
such series and Tranches, in the principal amount above specified, may
determine the time and the place in the Borough of Manhattan, The City of
New York, or in such other place as shall be determined or approved by the
Company, for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without notice
if the Holders of all Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of the Company and the
Trustee are present, or if notice is waived in writing before or after the
meeting by the Holders of all Outstanding Securities of such series, or any
Tranche or Tranches thereof, or by such of them as are not present at the
meeting in person or by proxy, and by the Company and the Trustee.
SECTION 1203. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of
one or more, or all, series, or any Tranche or Tranches thereof, a Person
shall be (a) a Holder of one or more Outstanding Securities of such series
or Tranches, or (b) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such
series or Tranches by such Holder or Holders. The only Persons who shall
be entitled to attend any meeting of Holders of Securities of any series or
Tranche shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any repre-
sentatives of the Company and its counsel.
SECTION 1204. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of the series and Tranches with
respect to which a meeting shall have been called as hereinbefore provided,
considered as one class, shall constitute a quorum for a meeting of Holders
of Securities of such series and Tranches; provided, however, that if any
action is to be taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of
such series and Tranches, considered as one class, the Persons entitled to
vote such specified percentage in principal amount of the Outstanding Secu-
rities of such series and Tranches, considered as one class, shall
constitute a quorum. In the absence of a quorum within one hour of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be dissolved.
In any other case the meeting may be adjourned for such period as may be
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for such period as may be
determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1205(e), notice of the
reconvening of any meeting adjourned for more than thirty (30) days shall
be given as provided in Section 106 not less than ten (10) days prior to
the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage,
as provided above, of the principal amount of the Outstanding Securities of
such series and Tranches which shall constitute a quorum.
Except as limited by Section 1102, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of
a majority in aggregate principal amount of the Outstanding Securities of
the series and Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except as so lim-
ited, any resolution with respect to any action which this Indenture
expressly provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class, may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding Securities
of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of Holders
of Securities duly held in accordance with this Section shall be binding on
all the Holders of Securities of the series and Tranches with respect to
which such meeting shall have been held, whether or not present or
represented at the meeting.
SECTION 1205. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may be in
person or by proxy; and, to the extent permitted by law, any such proxy
shall remain in effect and be binding upon any future Holder of the
Securities with respect to which it was given unless and until specifically
revoked by the Holder or future Holder (except as provided in Section
104(g)) of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities in regard to proof of the holding of
such Securities and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any
such regulations and approved by the Company, the holding of Securities
shall be proved in the manner specified in Section 104 and the appointment
of any proxy shall be proved in the manner specified in Section 104. Such
regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders as provided in Section 1202(b), in
which case the Company or the Holders of Securities of the series and
Tranches calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches represented at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one
vote for each One Thousand Dollars ($1,000) principal amount of Outstanding
Securities held or represented by such Holder; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1202 at which a
quorum is present may be adjourned from time to time by Persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities
of all series and Tranches represented at the meeting, considered as one
class; and the meeting may be held as so adjourned without further notice.
SECTION 1206. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders
shall be by written ballots on which shall be subscribed the signatures of
the Holders or of their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Securities, of the series and
Tranches with respect to which the meeting shall have been called, held or
represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for
or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Holders shall be prepared by the secretary of the meeting and there shall
be attached to such record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that such notice was given as provided in Section 1202
and, if applicable, Section 1204. Each copy shall be signed and verified
by the affidavits of the permanent chairman and secretary of the meeting
and one such copy shall be delivered to the Company, and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall
be conclusive evidence of the matters therein stated.
SECTION 1207. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization,
direction, notice, consent, waiver or other action may be made, given or
taken by Holders by written instruments as provided in Section 104.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 1301. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Securities, or any part
thereof, or for any claim based thereon or otherwise in respect thereof, or
of the indebtedness represented thereby, or upon any obligation, covenant
or agreement under this Indenture, against any incorporator, stockholder,
officer or director, as such, past, present or future, of the Company or of
any predecessor or successor corporation (either directly or through the
Company or a predecessor or successor corporation), whether by virtue of
any constitutional provision, statute or rule of law or by the enforcement
of any assessment or penalty or otherwise; it being expressly agreed and
understood that this Indenture and all the Securities are solely corporate
obligations and that no personal liability whatsoever shall attach to, or
be incurred by, any incorporator, stockholder, officer or director, past,
present or future, of the Company or of any predecessor or successor
corporation, either directly or indirectly through the Company or any
predecessor or successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or to be
implied herefrom or therefrom; and such personal liability, if any, is
hereby expressly waived and released as a condition of, and as part of the
consideration for, the execution and delivery of this Indenture and the
issuance of the Securities.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company, for itself, its successors and assigns, covenants
and agrees, and each Holder of the Securities of each series, by its
acceptance thereof, likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any, on each and all of
the Securities is hereby expressly subordinated and subject to the extent
and in the manner set forth in this Article, in right of payment to the
prior payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series, by its acceptance
thereof, authorizes and directs the Trustee on its behalf to take such
action as may be necessary or appropriate to effectuate the subordination
as provided in this Article, and appoints the Trustee its attorney-in-fact
for any and all such purposes.
SECTION 1402. PAYMENT OVER OF PROCEEDS OF SECURITIES.
In the event (a) of any insolvency or bankruptcy proceedings or
any receivership, liquidation, reorganization or other similar proceedings
in respect of the Company or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other winding-up of the
Company, whether or not involving insolvency or bankruptcy, or (b) subject
to the provisions of Section 1403, that (i) a default shall have occurred
with respect to the payment of principal of or interest on or other
monetary amounts due and payable on any Senior Indebtedness, or (ii) there
shall have occurred a default (other than a default in the payment of
principal or interest or other monetary amounts due and payable) in respect
of any Senior Indebtedness, as defined therein or in the instrument under
which the same is outstanding, permitting the holder or holders thereof to
accelerate the maturity thereof (with notice or lapse of time, or both),
and such default shall have continued beyond the period of grace, if any,
in respect thereof, and, in the cases of subclauses (i) and (ii) of this
clause (b), such default shall not have been cured or waived or shall not
have ceased to exist, or (c) that the principal of and accrued interest on
the Securities of any series shall have been declared due and payable
pursuant to Section 701 and such declaration shall not have been rescinded
and annulled as provided in Section 702, then:
(1) the holders of all Senior Indebtedness shall first
be entitled to receive payment of the full amount due
thereon, or provision shall be made for such payment in
money or money's worth, before the Holders of any of the
Securities are entitled to receive a payment on account of
the principal of or interest on the indebtedness evidenced
by the Securities, including, without limitation, any
payments made pursuant to Article Four;
(2) any payment by, or distribution of assets of, the
Company of any kind or character, whether in cash, property
or securities, to which any Holder or the Trustee would be
entitled except for the provisions of this Article, shall be
paid or delivered by the person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of
such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according
to the aggregate amounts remaining unpaid on account of such
Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision therefor)
to the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders of the
indebtedness evidenced by the Securities or to the Trustee
under this Indenture; and
(3) in the event that, notwithstanding the foregoing,
any payment by, or distribution of assets of, the Company of
any kind or character, whether in cash, property or
securities, in respect of principal of or interest on the
Securities or in connection with any repurchase by the
Company of the Securities, shall be received by the Trustee
or any Holder before all Senior Indebtedness is paid in
full, or provision is made for such payment in money or
money's worth, such payment or distribution in respect of
principal of or interest on the Securities or in connection
with any repurchase by the Company of the Securities shall
be paid over to the holders of such Senior Indebtedness or
their representative or representatives or to the trustee or
trustees under any indenture under which any instruments
evidencing any such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the payment
of all Senior Indebtedness remaining unpaid until all such
Senior Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or distribution (or
provision therefor) to the holders of such Senior
Indebtedness.
Notwithstanding the foregoing, at any time after the 123rd day
following the date of deposit of cash or Government Obligations pursuant to
Section 601 (provided all conditions set out in such Section shall have
been satisfied), the funds so deposited and any interest thereon will not
be subject to any rights of holders of Senior Indebtedness including,
without limitation, those arising under this Article Fourteen; provided
that no event described in clause (e) of Section 701 with respect to the
Company has occurred during such 123-day period.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan or reorganization or readjustment which
are subordinate in right of payment to all Senior Indebtedness which may at
the time be outstanding to the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Ten hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 1402 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Ten hereof. Nothing in Section 1401 or in this Section
1402 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 807.
SECTION 1403. DISPUTES WITH HOLDERS OF CERTAIN SENIOR INDEBTEDNESS.
Any failure by the Company to make any payment on or perform any
other obligation in respect of Senior Indebtedness, other than any
indebtedness incurred by the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any other obligation as to which the
provisions of this Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or obligation, shall not
be deemed a default under clause (b) of Section 1402 if (i) the Company
shall be disputing its obligation to make such payment or perform such
obligation and (ii) either (A) no final judgment relating to such dispute
shall have been issued against the Company which is in full force and
effect and is not subject to further review, including a judgment that has
become final by reason of the expiration of the time within which a party
may seek further appeal or review, or (B) in the event that a judgment that
is subject to further review or appeal has been issued, the Company shall
in good faith be prosecuting an appeal or other proceeding for review and a
stay or execution shall have been obtained pending such appeal or review.
SECTION 1404. SUBROGATION.
Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash (or securities or other
property satisfactory to such holders) in full payment of such Senior
Indebtedness then outstanding. Subject to the prior payment in full of all
Senior Indebtedness, the rights of the Holders of the Securities shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
any further payments or distributions of cash, property or securities of
the Company applicable to the holders of the Senior Indebtedness until all
amounts owing on the Securities shall be paid in full; and such payments or
distributions of cash, property or securities received by the Holders of
the Securities, by reason of such subrogation, which otherwise would be
paid or distributed to the holders of such Senior Indebtedness shall, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment by the Company to
or on account of Senior Indebtedness, it being understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1405. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as among the Company,
its creditors other than the holders of Senior Indebtedness and the
Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of
the Holders and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or
any Holder from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under
this Article of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any
such remedy.
Upon any payment or distribution of assets or securities of the
Company referred to in this Article, the Trustee and the Holders shall be
entitled to rely upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this Article.
SECTION 1406. PRIORITY OF SENIOR INDEBTEDNESS UPON MATURITY.
Upon the maturity of the principal of any Senior Indebtedness by
lapse of time, acceleration or otherwise, all matured principal of Senior
Indebtedness and interest and premium, if any, thereon shall first be paid
in full before any payment of principal or premium, if any, or interest, if
any, is made upon the Securities or before any Securities can be acquired
by the Company or any sinking fund payment is made with respect to the
Securities (except that required sinking fund payments may be reduced by
Securities acquired before such maturity of such Senior Indebtedness).
SECTION 1407. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all rights set forth in this
Article with respect to any Senior Indebtedness at any time held by it, to
the same extent as any other holder of Senior Indebtedness. Nothing in this
Article shall deprive the Trustee of any of its rights as such holder.
SECTION 1408. NOTICE TO TRUSTEE TO EFFECTUATE SUBORDINATION.
Notwithstanding the provisions of this Article or any other
provision of the Indenture, the Trustee shall not be charged with knowledge
of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee unless and until the Trustee shall
have received written notice thereof from the Company, from a Holder or
from a holder of any Senior Indebtedness or from any representative or
representatives of such holder and, prior to the receipt of any such
written notice, the Trustee shall be entitled, subject to Section 801, in
all respects to assume that no such facts exist; provided, however, that,
if prior to the fifth Business Day preceding the date upon which by the
terms hereof any such moneys may become payable for any purpose, or in the
event of the execution of an instrument pursuant to Section 602
acknowledging satisfaction and discharge of this Indenture, then if prior
to the second Business Day preceding the date of such execution, the
Trustee shall not have received with respect to such moneys the notice
provided for in this Section, then, anything herein contained to the
contrary notwithstanding, the Trustee may, in its discretion, receive such
moneys and/or apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary, which may be
received by it on or after such date; provided, however, that no such
application shall affect the obligations under this Article of the persons
receiving such moneys from the Trustee.
SECTION 1409. MODIFICATION, EXTENSION, ETC. OF SENIOR INDEBTEDNESS.
The holders of Senior Indebtedness may, without affecting in any
manner the subordination of the payment of the principal of and premium, if
any, and interest, if any, on the Securities, at any time or from time to
time and in their absolute discretion, agree with the Company to change the
manner, place or terms of payment, change or extend the time of payment of,
or renew or alter, any Senior Indebtedness, or amend or supplement any
instrument pursuant to which any Senior Indebtedness is issued, or exercise
or refrain from exercising any other of their rights under the Senior
Indebtedness including, without limitation, the waiver of default
thereunder, all without notice to or assent from the Holders or the
Trustee.
SECTION 1410. TRUSTEE HAS NO FIDUCIARY DUTY TO HOLDERS OF SENIOR
INDEBTEDNESS.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
objectives as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall
not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders if it shall
mistakenly pay over or deliver to the Holders or the Company or any other
Person, money or assets to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
SECTION 1411. PAYING AGENTS OTHER THAN THE TRUSTEE.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
shall otherwise require) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article in addition to or in place of
the Trustee; provided, however, that Sections 1407, 1408 and 1410 shall not
apply to the Company if it acts as Paying Agent.
SECTION 1412. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT IMPAIRED.
No right of any present or future holder of Senior Indebtedness
to enforce the subordination herein shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any noncompliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof any
such holder may have or be otherwise charged with.
SECTION 1413. EFFECT OF SUBORDINATION PROVISIONS; TERMINATION.
Notwithstanding anything contained herein to the contrary, other
than as provided in the immediately succeeding sentence, all the provisions
of this Indenture shall be subject to the provisions of this Article, so
far as the same may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the
provisions of this Article Fourteen shall be of no further effect with
respect to all or a portion of Senior Indebtedness, and the Securities
shall no longer be subordinated in right of payment to the prior payment of
such Senior Indebtedness, to the extent that the Company shall have
delivered to the Trustee a notice to such effect specifying therein such
Senior Indebtedness to which the Securities shall no longer be
subordinated. Any such notice delivered by the Company shall not be deemed
to be a supplemental indenture for purposes of Article Twelve hereof.
_________________________
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the day and year first above written.
THE WASHINGTON WATER POWER COMPANY
By:________________________________________
WILMINGTON TRUST COMPANY, Trustee
By:________________________________________
