1
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THE WASHINGTON WATER POWER COMPANY
TO
WILMINGTON TRUST COMPANY,
TRUSTEE
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INDENTURE
DATED AS OF JANUARY 1, 1997
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2
THE WASHINGTON WATER POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF JANUARY 1, 1997
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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
3
TABLE OF CONTENTS
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
4
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
5
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
6
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
7
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
8
INDENTURE, dated as of January 1, 1997 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
reference 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
9
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
10
or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, as amended, or, if at any time after the date of
the execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body, if any, performing such duties at such
time.
"COMPANY" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor Person.
"COMPANY ORDER" or "COMPANY REQUEST" means a written request
or order signed in the name of the Company by an Authorized Officer
and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at
which at any particular time its corporate trust business shall be
principally administered, which office at the date of the execution
and delivery of this Indenture is located at Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890.
"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
11
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 January 1, 1997
as originally executed and delivered and as it has been and may from
time to time be amended and/or supplemented by one or
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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
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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
14
any, or interest, if any, on any Securities on behalf of the Company.
"PERIODIC OFFERING" means an offering of Securities of a
series from time to time any or all of the specific terms of which
Securities, including without limitation the rate or rates of
interest, if any, thereon, the Stated Maturity or Maturities thereof
and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents from time to time subsequent
to the initial request for the authentication and delivery of such
Securities by the Trustee, all as contemplated in Section 301 and
clause (b) of Section 303.
"PERSON" means any individual, corporation, partnership,
limited liability partnership, limited liability company, joint
venture, trust or unincorporated organization or any Governmental
Authority.
"PLACE OF PAYMENT", when used with respect to the Securities
of any series, or any Tranche thereof, means the place or places,
specified as contemplated by Section 301, at which, subject to Section
502, principal of and premium, if any, and interest, if any, on the
Securities of such series or Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means
every previous Security evidencing all or a portion of the same debt
as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 306 in exchange for or in lieu of a mutilated, destroyed, lost
or stolen Security shall be deemed (to the extent lawful) to evidence
the same debt as the mutilated, destroyed, lost or stolen Security.
"REDEMPTION DATE", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
"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.
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"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.
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"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
17
this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with, it
being understood that in the case of any such application or request
as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, such individual has made such examination or
investigation as is necessary to enable such individual to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
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
18
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.
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(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.
20
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of
principal amount of Securities for the action contemplated by such
instruments, any such instrument executed and delivered by or on
behalf of a Holder may be revoked with respect to any or all of such
Securities by written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of Holders. If the Company
shall so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the Trustee and
the Company, to such action may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
(g) The Company may, at its option, by Company Order, fix in
advance a record date for the determination of Holders entitled to
give any request, demand, authorization, direction, notice, consent,
waiver or other Act solicited by the Company, but the Company shall
have no obligation to do so; provided, however, that the Company may
not fix a record date for the giving or making of any notice,
declaration, request or direction referred to in the next sentence. In
addition, the Trustee may, at its option, fix in advance a record date
for the determination of Holders of Securities of any series entitled
to join in the giving or making of any Notice of Default, any
declaration of acceleration referred to in Section 702, any request to
institute proceedings referred to in Section 707 or any direction
referred to in Section 712, in each case with respect to Securities of
such series. If any such record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act, or
such notice, declaration, request or direction, may be given before or
after such record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the
purposes of determining (i) whether Holders of the requisite
proportion of the Outstanding Securities have authorized or agreed or
consented to such Act (and for that purpose the Outstanding Securities
shall be computed as of the record date) and/or (ii) which Holders may
revoke any such Act (notwithstanding subsection (e) of this Section);
and any such Act, given as aforesaid, shall be effective whether or
not the Holders which authorized or agreed or consented to such Act
remain Holders after such record date and whether or not the
Securities held by such Holders remain Outstanding after such record
date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
21
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
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Facsimile: (302) 651-1576
If to the Company, to:
The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Facsimile: (509) 482-4879
Any communication contemplated herein shall be deemed to
have been made, given, furnished and filed if personally delivered, on
the date of delivery, if transmitted by facsimile transmission, telex
or other direct written electronic means, on the date of transmission,
and if transmitted by registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice
shall be sufficiently given, and shall be deemed given, to Holders if
in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as it appears in
the Security Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable
22
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
23
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
24
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 authenti-
25
cated 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)
26
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
27
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 acceleration of the Maturity thereof pursuant
to Section 702;
(o) the terms, if any, pursuant to which the Securities
of such series, or any Tranche thereof, may be converted
into or exchanged for shares of capital stock or other
securities of the Company or any other Person;
(p) the obligations or instruments, if any, which shall
be considered to be Eligible Obligations in respect of the
Securities of such series, or any Tranche thereof,
denominated in a currency other than Dollars or in a
composite currency, and any additional or alternative
provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the
satisfaction and discharge thereof as provided in Section
601;
(q) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any
limitations on the rights of the Holder or Holders of such
Securities to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii)
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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
29
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;
30
(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
31
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
32
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
33
offices designated pursuant to Section 502, with respect to the
Securities of each series, or any Tranche thereof, a register (the
"SECURITY REGISTER") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Securities of such series or Tranche and the registration of transfer
thereof. The Company shall designate one Person to maintain the
Security Register for the Securities of each series and such Person is
referred to herein, with respect to such series, as the "SECURITY
REGISTRAR". Anything herein to the contrary notwithstanding, the
Company may designate one or more of its offices as an office in which
a register with respect to the Securities of one or more series, or
any Tranche or Tranches thereof, shall be maintained, and the Company
may designate itself the Security Registrar with respect to one or
more of such series. The Security Register shall be open for
inspection by the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof,
upon surrender for registration of transfer of any Security of such
series or Tranche at the office or agency of the Company maintained
pursuant to Section 502 in a Place of Payment for such series or
Tranche, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees,
one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal
amount.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof,
any Security of such series or Tranche may be exchanged at the option
of the Holder, for one or more new Securities of the same series and
Tranche, of authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be exchanged at
any such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
All Securities delivered upon any registration of transfer
or exchange of Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Security 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
34
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 exchange therefor a new Security of the same series and Tranche,
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(a) evidence to their satisfaction of the ownership of and the
destruction, loss or theft of any Security and (b) such security or
indemnity as may be reasonably required by them to save each of them
and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security is held by a
Person purporting to be the owner of such Security, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same
series and Tranche, and of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become
due and payable, the Company in its discretion may, but subject to
compliance with the foregoing conditions, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.
35
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 aggregate amount proposed to be paid in
respect of such Unpaid Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to
be held in trust for the
36
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.
37
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 fluctuation, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in the full
amount of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable
38
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
39
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
40
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
41
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
42
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
43
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.
44
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;
45
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, 1997, 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
46
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
47
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
48
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
49
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.
50
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall turn over to the Company
any and all money, securities and other property then held by the
Trustee for the benefit of the Holders of the Securities (other than
money and Eligible Obligations held by the Trustee pursuant to Section
603) and shall execute and deliver to the Company such instruments as,
in the judgment of the Company, shall be necessary, desirable or
appropriate to effect or evidence the satisfaction and discharge of
this Indenture.
SECTION 603. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited
pursuant to Section 601, nor the principal or interest payments on any
such Eligible Obligations, shall be withdrawn or used for any purpose
other than, and shall be held in trust for, the payment of the
principal of and premium, if any, and interest, if any, on the
Securities or portions of principal amount thereof in respect of which
such deposit was made, all subject, however, to the provisions of
Section 503; provided, however, that any cash received from such
principal or interest payments on such Eligible Obligations, if not
then needed for such purpose, shall, to the extent practicable and
upon Company Request and delivery to the Trustee of the documents
referred to in clause (y) in the first paragraph of Section 601, be
invested in Eligible Obligations of the type described 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
51
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,
52
reorganization or other similar law or (ii) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition by one or more Persons other than
the Company seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any substantial part
of its property, or ordering the winding-up or liquidation of
its affairs, and any such decree or order for relief or any
such other decree or order shall have remained unstayed and in
effect for a period of ninety (90) consecutive days; or
(e) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt
or insolvent, 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
53
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
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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;
55
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,
56
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
57
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.
58
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
59
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
60
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;
61
but in the case of any such certificates or opinions which by
any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee shall
exercise, with respect to Securities of such series, such of the rights
and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except
that:
(i) this subsection shall not be construed to
limit the effect of subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any one or
more series, as provided herein, relating to the time, method
and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect
to the Securities of such series; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
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SECTION 802. 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 "DEFAULT" 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
63
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
64
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
65
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
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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.
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(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
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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
hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental
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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
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in which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or bankers and payable
upon demand; and
(b) the term "SELF-LIQUIDATING PAPER" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated
or incurred by the Company or such obligor for the purpose of
financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is secured
by documents evidencing title to, possession of, or a lien upon,
the goods, wares or merchandise or the receivables or proceeds
arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the
Trustee simultaneously with the creation of the creditor
relationship with the Company or such obligor arising from the
making, drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
SECTION 814. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents
with respect to the Securities of one or more series, or any Tranche
thereof, which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series or Tranche issued upon original
issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
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
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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
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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, 1997, 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,
1997, 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
73
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
74
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.
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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 distribution of electric energy
or for the storage, transportation or distribution of
natural gas;
(B) stating, in the judgment of the signers, the
Fair Value to the transferee of the property so
conveyed or otherwise transferred;
(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
76
(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
77
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
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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
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Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 811(b); or
(h) to provide for the procedures required to permit
the Company to utilize, at its option, a non- certificated
system of registration for all, or any series or Tranche of,
the Securities; or
(i) to change any place or places where (1) the
principal of and premium, if any, and interest, if any, on all
or any series of Securities, or any Tranche thereof, shall be
payable, (2) all or any series of Securities, or any Tranche
thereof, may be surrendered for registration of transfer, (3)
all or any series of Securities, or any Tranche thereof, may
be surrendered for exchange and (4) notices and demands to or
upon the Company in respect of all or any series of
Securities, or any Tranche thereof, and this Indenture may be
served; or
(j) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein; or to make any other changes
to the provisions hereof or to add other provisions with
respect to matters or questions arising under this Indenture,
provided that 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
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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
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(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.
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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 therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby. Any supplemental indenture permitted
by this Article may restate this Indenture in its entirety, and, upon
the execution and delivery thereof, any such restatement shall
supersede this Indenture as theretofore in effect for all purposes.
SECTION 1105. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act.
SECTION 1106. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any
matter provided for 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.
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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
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Holders of Securities of one or more, or all, series, or any Tranche
or Tranches thereof, by the Company or by the Holders of thirty-three
per centum (33%) in aggregate principal amount of all of such series
and Tranches, considered as one class, for any purpose specified in
Section 1201, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting. If the Trustee shall
have been asked by the Company to call such a meeting, the Company
shall determine the time and place for such meeting and may call such
meeting by giving notice thereof in the manner provided in subsection
(a) of this Section, or shall direct the Trustee, in the name and at
the expense of the Company, to give such notice. If the Trustee shall
have been asked to call such a meeting by Holders in accordance with
this subsection (b), and the Trustee shall not have given the notice
of such meeting within twenty-one (21) days after receipt of such
request or shall not thereafter proceed to cause the meeting to be
held as provided herein, then the Holders of Securities of such series
and Tranches, in the principal amount above specified, may determine
the time and the place in the Borough of Manhattan, The City of New
York, or in such other place as shall be determined or approved by the
Company, for such meeting and may call such meeting for such purposes
by giving notice thereof as provided in subsection (a) of this
Section.
(c) Any meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, shall be valid
without notice if the Holders of all Outstanding Securities of such
series or Tranches are present in person or by proxy and if
representatives of the Company and the Trustee are present, or if
notice is waived in writing before or after the meeting by the Holders
of all Outstanding Securities of such series, or any Tranche or
Tranches thereof, or by such of them as are not present at the meeting
in person or by proxy, and by the Company and the Trustee.
SECTION 1203. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, a Person shall be (a) a Holder of one or more Outstanding
Securities of such series or Tranches, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series or Tranches by such Holder or
Holders. The only Persons who shall be entitled to attend any meeting
of Holders of Securities of any series or Tranche shall be the Persons
entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives
of the Company and its counsel.
SECTION 1204. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate
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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 Securities
of such series and Tranches, considered as one class, shall constitute
a quorum. In the absence of a quorum within one hour of the time
appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be
dissolved. In any other case the meeting may be adjourned for such
period as may be determined by the chairman of the meeting prior to
the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further
adjourned for such period as may be determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Except as
provided by Section 1205(e), notice of the reconvening of any meeting
adjourned for more than thirty (30) days shall be given as provided in
Section 106 not less than ten (10) days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding Securities of such
series and Tranches which shall constitute a quorum.
Except as limited by Section 1102, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of the series and Tranches with respect to
which such meeting shall have been called, considered as one class;
provided, however, that, except as so limited, any resolution with
respect to any action which this Indenture expressly provides may be
taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such
series and Tranches, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities
of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section shall
be binding on all the Holders of Securities of the series and Tranches
with respect to which such meeting shall have been held, whether or
not present or represented at the meeting.
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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
87
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,
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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
89
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
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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
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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.
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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
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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
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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.
--------------------------------
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above
written.
THE WASHINGTON WATER POWER COMPANY
By: /s/ J.E. Eliassen
-------------------------------
Name: J.E. Eliassen
Title: Senior Vice President
and Chief Financial
Officer
WILMINGTON TRUST COMPANY, Trustee
By: /s/ Donald G. MacKelcan
-------------------------------