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Registration Nos. 333- , 333- -01,
333- -02 and 333- 03
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
THE WASHINGTON WATER POWER COMPANY
(Exact name of registrant as specified in its charter)
WASHINGTON 91-0462470
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1411 East Mission Avenue
Spokane, Washington 99202
(509) 489-0500
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
WASHINGTON WATER POWER CAPITAL I
WASHINGTON WATER POWER CAPITAL II
WASHINGTON WATER POWER CAPITAL III
(Exact name of each registrant as specified in Trust Agreements)
DELAWARE EACH TO BE APPLIED FOR
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization of Nos.)
each registrant)
C/O THE WASHINGTON WATER POWER COMPANY
1411 EAST MISSION AVENUE
SPOKANE, WASHINGTON 99202
(509) 489-0500
(Address, including zip code, and telephone number, including
area code, of each registrant's principal executive offices)
--------------------------------
J.E. ELIASSEN, Senior Vice President J. ANTHONY TERRELL
& Chief Financial Officer KEVIN STACEY
The Washington Water Power Company Reid & Priest LLP
1411 East Mission Avenue 40 West 57th Street
Spokane, Washington 99202 New York, New York 10019
(509) 489-0500 (212) 603-2000
(Name and address, including zip code, and telephone number,
including area code, of agents for service)
---------------------------------
It is respectfully requested that the Commission
send copies of all notices, orders and communications to:
John E. Baumgardner, Jr.
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Approximate date of commencement of proposed sale to the
public: As soon as practicable after the registration statement
becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box. [ ]
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act of
1933, please check the following box and list the Securities Act
of 1933 registration statement number of the earlier effective
registration statement for the same offering. [ ]
========================================================================
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act of 1933, check the following
box and list the Securities Act of 1933 registration statement
number of the earlier effective registration statement for the
same offering. [ ]
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
=========================================================================
PROPOSED PROPOSED
TITLE MAXIMUM MAXIMUM
OF EACH CLASS AMOUNT OFFERING AGGREGATE
OF SECURITIES TO BE PRICE OFFERING AMOUNT OF
TO BE REGISTERED PER UNIT PRICE(1) REGISTRATION
REGISTERED (1) (1)(2)(3) (2)(3) FEE (2)
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WASHINGTON
WATER POWER
CAPITAL I, II
AND III
PREFERRED
SECURITIES . .
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THE WASHINGTON
WATER POWER
COMPANY
GUARANTEES WITH
RESPECT TO
WASHINGTON
WATER POWER
CAPITAL I, II
AND III
PREFERRED
SECURITIES AND
THE WASHINGTON
WATER POWER
COMPANY
OBLIGATIONS
WITH RESPECT TO
SUCH PREFERRED
SECURITIES
UNDER AN
INDENTURE AND
AN AMENDED AND
RESTATED
DECLARATION OF
TRUST(4) . . .
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THE WASHINGTON
WATER POWER
COMPANY
SUBORDINATED
DEBT
SECURITIES . . .
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TOTAL . . . . . $150,000,000 100% $150,000,000 $45,455.00
=========================================================================
(1) Includes such indeterminate number of Preferred Securities of
Washington Water Power Capital I, Washington Water Power
Capital II and Washington Water Power Capital III (each, a
"Trust") and such indeterminate principal amount of
Subordinated Debt Securities of The Washington Water Power
Company as may from time to time be issued at indeterminate
prices. Subordinated Debt Securities may be issued and sold
to any Trust, in which event such Subordinated Debt
Securities may later be distributed to the holders of
Preferred Securities upon a dissolution of such Trust and the
distribution of the assets thereof.
(2) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457. The aggregate public
offering price of the Preferred Securities of the Trusts and
the Subordinated Debt Securities of The Washington Water
Power Company registered hereby will not exceed $150,000,000.
(3) Exclusive of accrued interest and dividends, if any.
(4) Includes the rights of the holders of the Preferred
Securities under the Guarantees and certain back-up
undertakings, comprised of the obligations of The Washington
Water Power Company to provide certain indemnities in respect
of, and pay and be responsible for certain costs, expenses,
debts and liabilities of, each Trust and such obligations as
set forth in the Expense Agreement relating to each Trust and
the Indenture, in each case as further described in the
Registration Statement. The Guarantees, when taken together
with The Washington Water Power Company's obligations under
the Subordinated Debt Securities, the Indenture, the Amended
and Restated Declaration of Trust of each Trust and the
Expense Agreement relating to each Trust, will effectively
provide a full and unconditional guarantee, on a subordinated
basis, by The Washington Water Power Company of payments due
on the Preferred Securities. No separate consideration will
be received for any Guarantees or such back-up obligations.
The registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
Information contained in this prospectus supplement and the
accompanying prospectus is subject to completion or amendment.
A Registration Statement relating to these securities has been
filed with the Securities and Exchange Commission. These
securities may not be sold nor may offers to buy be accepted prior
to the time the Registration Statement becomes effective. This
prospectus supplement and the accompanying prospectus shall not
constitute an offer to sell or the solicitation of an offer to
buy nor shall there be any sale of these securities in any State
in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any
such State.
SUBJECT TO COMPLETION, DATED ________, 199_
PRELIMINARY PROSPECTUS SUPPLEMENT (To Prospectus dated _______,
199_)
___________ PREFERRED SECURITIES
WASHINGTON WATER POWER CAPITAL I
_____% TRUST ORIGINATED PREFERRED SECURITIES,SM
SERIES A ("TOPrSSM")
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED BY
THE WASHINGTON WATER POWER COMPANY
_______________
The _____% Trust Originated Preferred Securities,SM Series A (the
"Preferred Securities") offered hereby represent preferred
undivided beneficial interests in the assets of Washington Water
Power Capital I, a statutory business trust formed under the laws
of the State of Delaware ("Washington Water Power Capital" or the
"Trust"). The Washington Water Power Company, a Washington
corporation (the "Company"), will own all the common securities
(the "Common Securities" and, together with the Preferred
Securities, the "Trust Securities") representing undivided
beneficial interests in the assets of Washington Water Power
Capital. Washington Water Power Capital exists for the sole
purpose of issuing the Trust Securities and investing the
proceeds thereof in an equivalent amount of _____% Junior
Subordinated Deferrable Interest Debentures, Series A, due 20__
(the "Subordinated Debt Securities") of the Company. The
Subordinated Debt Securities and the Preferred Securities and the
related Preferred Securities Guarantees in respect of which this
Prospectus Supplement is being delivered shall be referred to
herein as the "Offered Securities." The Subordinated Debt
Securities when issued will be unsecured obligations of the
Company and will be subordinate and junior in right of payment to
certain other indebtedness of the Company, as described herein.
Upon an event of default under the Declaration (as defined
herein), the holders of Preferred Securities will have a
preference over the holders of the Common Securities with respect
to payments in respect of distributions and payments upon
redemption, liquidation and otherwise.
(continued on next page)
_______________
SEE "RISK FACTORS" BEGINNING ON PAGE S-5 OF THIS PROSPECTUS
SUPPLEMENT FOR CERTAIN INFORMATION RELEVANT TO AN INVESTMENT IN
THE PREFERRED SECURITIES, INCLUDING THE PERIOD AND CIRCUMSTANCES
DURING AND UNDER WHICH PAYMENTS OF DISTRIBUTIONS ON THE PREFERRED
SECURITIES MAY BE DEFERRED AND THE RELATED UNITED STATES FEDERAL
INCOME TAX CONSEQUENCES OF SUCH DEFERRAL.
Application will be made to list the Preferred Securities on the
New York Stock Exchange (the "NYSE"). If approved, trading of the
Preferred Securities on the NYSE is expected to commence within a
30-day period after the initial delivery of the Preferred
Securities. See "Underwriting."
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH IT
RELATES. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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INITIAL PUBLIC PROCEEDS
OFFERING UNDERWRITING TO
PRICE(1) COMMISSION(2) TRUST(3)(4)
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Per Preferred
Security . . . . . $ (3) $
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Total . . . . . . . $ (3) $
===================================================================
(1) Plus accrued distributions, if any, from _____________,
199_.
(2) Washington Water Power Capital and the Company have agreed
to indemnify the several Underwriters against certain
liabilities, including liabilities under the Securities Act
of 1933, as amended. See "Underwriting."
(3) In view of the fact that the proceeds of the sale of the
Preferred Securities will be invested in the Subordinated
Debt Securities, the Company has agreed to pay to the
Underwriters as compensation (the "Underwriters'
Compensation") for their arranging the investment therein of
such proceeds $.____ per Preferred Security (or $_________
in the aggregate); provided, however, that such compensation
for sales of 10,000 or more Preferred Securities to a single
purchaser will be $.__ per Preferred Security. Therefore, to
the extent of such sales, the actual amount of Underwriters'
Compensation will be less than the aggregate amount
specified in the preceding sentence. See "Underwriting."
(4) Expenses of the offering which are payable by the Company
are estimated to be $_______.
The Preferred Securities offered hereby are offered severally by
the Underwriters, as specified herein, subject to receipt and
acceptance by them and subject to their right to reject any order
in whole or in part. It is expected that delivery of the
Preferred Securities will be made only in book-entry form through
the facilities of The Depository Trust Company, on or about
______, 199_.
_______________
MERRILL LYNCH & CO.
The date of this Prospectus Supplement is ___________, 199_.
SM "Trust Originated Preferred Securities" and "TOPrS" are
service marks of Merrill Lynch & Co., Inc.
(continued from previous page)
Holders of the Preferred Securities are entitled to receive
cumulative cash distributions at a rate of ____% per annum of the
liquidation amount of $25 per Preferred Security, accruing from
the date of original issuance and payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year,
commencing ________ __, 199_ ("distributions"). The payment of
distributions out of moneys held by Washington Water Power
Capital and payments on liquidation of Washington Water Power
Capital or the redemption of Preferred Securities, as set forth
below, are guaranteed by the Company (the "Guarantee") to the
extent described herein and under "Description of the Preferred
Securities Guarantees" in the accompanying Prospectus. The
Guarantee covers payments of distributions and other payments on
the Preferred Securities only if and to the extent that
Washington Water Power Capital has funds available therefor,
which will not be the case unless the Company has made a payment
of interest or principal or other payments on the Subordinated
Debt Securities held by Washington Water Power Capital as its
sole asset. The Guarantee, when taken together with the Company's
obligations under the Subordinated Debt Securities, the Indenture
(as defined herein), the Declaration and the Expense Agreement
(as defined in the accompanying Prospectus), effectively provide
a full and unconditional guarantee, on a subordinated basis, of
amounts due on the Preferred Securities. See "Risk Factors -
Rights Under the Guarantee; Limitation as to Funds Available to
the Trust" herein. The obligations of the Company under the
Guarantee are subordinate and junior in right of payment to all
other liabilities of the Company. The obligations of the Company
under the Subordinated Debt Securities are subordinate and junior
in right of payment to all present and future Senior Indebtedness
(as defined in the accompanying Prospectus) of the Company, which
aggregated approximately $814 million at September 30, 1996, and
rank pari passu with the obligations to or rights of the
Company's other general unsecured creditors. The Subordinated
Debt Securities purchased by the Trust may be subsequently
distributed pro rata to holders of the Preferred Securities and
Common Securities in connection with the dissolution of the
Trust, upon the occurrence of certain events.
The distribution rate and the distribution payment date and
other payment dates for the Preferred Securities will correspond
to the interest rate and interest payment date and other payment
dates on the Subordinated Debt Securities, which will be the sole
assets of the Trust. As a result, if principal or interest is not
paid on the Subordinated Debt Securities, no amounts will be paid
on the Preferred Securities. If the Company does not make
principal or interest payments on the Subordinated Debt
Securities, the Trust will not have sufficient funds to make
distributions on the Preferred Securities, in which event the
Guarantee will not apply to such distributions until the Trust
has sufficient funds available therefor.
So long as the Company shall not be in default in the payment
of interest on the Subordinated Debt Securities, the Company has
the right to defer payments of interest on the Subordinated Debt
Securities by extending the interest payment period on the
Subordinated Debt Securities at any time for up to 20 consecutive
quarters (each, an "Extension Period"). If interest payments are
so deferred, distributions will also be deferred. During such
Extension Period, distributions will continue to accrue with
interest thereon, to the extent permitted by applicable law, at a
rate of ______% per annum compounded quarterly, and during any
Extension Period, holders of Preferred Securities will be
required to include income in the form of original issue discount
("OID") in their gross income for United States federal income
tax purposes in advance of receipt of the cash distributions with
respect to such deferred interest payments. There could be
multiple Extension Periods of varying lengths throughout the term
of the Subordinated Debt Securities. See "Risk Factors - Option
to Extend Interest Payment Period;" "Description of the
Subordinated Debt Securities - Option to Extend Interest Payment
Period" and "Certain United States Federal Income Tax
Considerations - Original Issue Discount" herein.
The Subordinated Debt Securities are redeemable by the Company,
in whole or in part, from time to time, on or after ________ __,
20__, or, in whole but not in part, at any time in certain
circumstances upon the occurrence of a Tax Event (as defined
herein). If the Company redeems Subordinated Debt Securities, the
Trust must redeem on a pro rata basis Trust Securities having an
aggregate liquidation amount equal to the aggregate principal
amount of the Subordinated Debt Securities so redeemed at $25 per
Preferred Security plus accrued and unpaid distributions thereon
(the "Redemption Price") to the date fixed for redemption. See
"Description of the Preferred Securities - Redemption" herein.
The Preferred Securities will be redeemed upon maturity of the
S-2
Subordinated Debt Securities. In addition, upon the occurrence of
a Tax Event arising from a change in law or a change in legal
interpretation regarding tax matters, unless the Subordinated
Debt Securities are redeemed at the option of the Company, the
Trust shall be dissolved, with the result that the Subordinated
Debt Securities will be distributed to the holders of the
Preferred Securities, on a pro rata basis, in lieu of any cash
distribution. See "Description of the Preferred Securities - Tax
Event Redemption or Distribution" herein. If the Subordinated
Debt Securities are distributed to the holders of the Preferred
Securities, the Company will use all reasonable efforts to have
the Subordinated Debt Securities listed on the NYSE or on such
other exchange as the Preferred Securities are then listed. See
"Description of the Preferred Securities - Tax Event Redemption
or Distribution" and "Description of the Subordinated Debt
Securities" herein.
In the event of the involuntary or voluntary dissolution,
winding-up or termination of the Trust, the holders of the
Preferred Securities will be entitled to receive for each
Preferred Security a liquidation amount of $25 plus accrued and
unpaid distributions thereon (including interest thereon) to the
date of payment, unless, in connection with such dissolution, the
Subordinated Debt Securities are distributed to the holders of
the Preferred Securities. See "Description of the Preferred
Securities - Liquidation Distribution Upon Dissolution" herein.
The Preferred Securities will be represented by one or more
global certificates registered in the name of The Depository
Trust Company ("DTC") or its nominee. Beneficial interests in the
Preferred Securities will be shown on, and transfers thereof will
be effected only through, records maintained by participants in
DTC. Except as described herein, Preferred Securities in
certificated form will not be issued in exchange for the global
certificates. See "Description of the Preferred Securities -
Book-Entry Only Issuance - The Depository Trust Company" herein.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-
ALLOT OR EFFECT TRANSACTIONS THAT STABILIZE OR MAINTAIN THE
MARKET PRICE OF THE SECURITIES OFFERED HEREBY AT LEVELS ABOVE
THOSE THAT MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN
THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING
TRANSACTIONS, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
S-3
THE WASHINGTON WATER POWER COMPANY
SELECTED HISTORICAL FINANCIAL INFORMATION
The following table, which is presented solely to furnish
limited introductory information regarding the Company, sets
forth selected historical financial information with respect to
the Company and its consolidated subsidiaries for the periods
indicated. This information is qualified in its entirety by
reference to the detailed information and financial statements
and notes thereto included in the documents which are
incorporated herein by reference and should be read together
therewith. See "Incorporation of Certain Documents by Reference"
in the accompanying Prospectus. The selected historical financial
information for each of the five years in the period ended
December 31, 1995, has been derived from the audited consolidated
financial statements of the Company.
DOLLARS IN MILLIONS EXCEPT PER SHARE AMOUNTS
----------------------------------------------------------
TWELVE
MONTHS ENDED
SEPTEMBER
30, YEARS ENDED DECEMBER 31,
------------- ----------------------------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
FINANCIAL DATA
Total
Revenues ...... $ 903.9 705.2 755.0 670.8 640.6 557.8 566.8
Income Before
Income Taxes .. 160.3 128.7 139.5 121.9 125.3 113.6 108.7
Net Income .... 101.8 81.2 87.1 77.2 82.8 74.7 72.2
Earnings per
Share of
Common Stock .. 1.67 1.32 1.41 1.28 1.44 1.37 1.34
Net Utility
Plant ........ 1,380.0 1,342.2 1,357.4 1,329.0 1,254.0 1,191.2 1,144.6
Total Assets . 2,114.5 2,000.8 2,098.9 1,994.3 1,837.8 1,534.0 1,521.5
Long-Term
Debt ......... 727.1 688.5 738.3 721.1 647.2 596.9 633.4
Total Common
Equity ....... 719.9 699.0 717.1 677.5 634.4 587.0 532.1
Net Cash
Provided By
Operating
Activities .. 182.3 137.7 132.2 144.8 151.8 137.9 135.3
Capital
Expenditures
and
Investments .. 124.9 111.6 87.9 182.9 139.7 109.7 161.1
Ratio of
Earnings to
Fixed
Charges* .... 3.41 3.10 3.22 3.24 3.45 3.08 2.96
*For the purpose of computing the ratio of earnings to fixed
charges, earnings consist of income before income taxes,
extraordinary items and cumulative effect of changes in
accounting principle, plus fixed charges (excluding capitalized
interest and the portion of the preferred dividend requirements
of a subsidiary not previously deducted from pretax income, but
including amortization of amounts previously capitalized), less
equity in undistributed earnings of companies owned less than 50
percent. Fixed charges consist of interest (including capitalized
interest) on all indebtedness, amortization of debt discount and
expense, that portion of rental expense which the Company
believes to be representative of interest and the amounts accrued
to cover the preferred stock dividend requirements of a
subsidiary. A statement setting forth the computation of the
unaudited ratios of earnings to fixed charges is filed as an
exhibit to the Registration Statement of which this Prospectus
Supplement is a part.
Business . . . . . . . Primarily an electric and natural
gas utility.
Service Area . . . . . Electric and natural gas service
in a 26,000 square mile area in
eastern Washington and northern
Idaho with a population of
approximately 765,000. Natural
gas service is also provided in a
4,000 square mile area in
northeast and southwest Oregon and
in the South Lake Tahoe region of
California with a population of
approximately 460,000.
Customers at Year-End** Electric 290,000, Gas 224,000
Income from Operations** Electricity 80%, Natural Gas 13%,
Non-Utility 7%
Total Electric Energy Sources** Hydro: Company-Owned 34%, Long-Term
Purchases 10%
Thermal: 21%
Other Purchases and Exchanges: 35%
**Twelve Months Ended December 31, 1995
S-4
RISK FACTORS
Prospective purchasers of Preferred Securities should carefully
review the information contained elsewhere in this Prospectus
Supplement and in the accompanying Prospectus and should
particularly consider the following matters.
OBLIGATIONS UNDER THE GUARANTEE AND SUBORDINATED DEBT SECURITIES
ARE UNSECURED AND SUBORDINATE TO SENIOR INDEBTEDNESS
The Company's obligations under the Guarantee are subordinate
and junior in right of payment to all liabilities of the Company.
The obligations of the Company under the Subordinated Debt
Securities are subordinate and junior in right of payment to all
present and future Senior Indebtedness of the Company and rank
pari passu with obligations to or rights of the Company's other
general unsecured creditors. As of September 30, 1996, Senior
Indebtedness aggregated approximately $814 million. There are no
terms in the Preferred Securities, the Subordinated Debt
Securities or the Guarantee that limit the Company's ability to
incur additional indebtedness, including indebtedness that ranks
senior to the Subordinated Debt Securities and the Guarantee. See
"Description of the Preferred Securities Guarantees - Status of
the Preferred Securities Guarantees" and "Description of the
Subordinated Debt Securities" in the accompanying Prospectus and
"Description of the Subordinated Debt Securities - Subordination"
herein.
RIGHTS UNDER THE GUARANTEE; LIMITATION AS TO FUNDS AVAILABLE TO
THE TRUST
The Guarantee will be qualified as an indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
Wilmington Trust Company will act as indenture trustee under the
Guarantee for the purposes of compliance with the provisions of
the Trust Indenture Act (the "Guarantee Trustee"). The Guarantee
Trustee will hold the Guarantee for the benefit of the holders of
the Preferred Securities.
The Guarantee guarantees to the holders of the Preferred
Securities the payment of (i) any accrued and unpaid
distributions that are required to be paid on the Preferred
Securities, to the extent the Trust has funds available therefor,
(ii) the Redemption Price with respect to Preferred Securities
called for redemption by the Trust, to the extent the Trust has
funds available therefor, and (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Trust
(other than in connection with the distribution of Subordinated
Debt Securities to the holders of the Preferred Securities or a
redemption of all the Preferred Securities), the lesser of (a)
the aggregate of the liquidation amount and all accrued and
unpaid distributions on the Preferred Securities to the date of
the payment and (b) the amount of assets of the Trust remaining
available for distribution to holders of the Preferred Securities
in liquidation of the Trust. The holders of a majority in
liquidation amount of the Preferred Securities have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee or to direct
the exercise of any trust or power conferred upon the Guarantee
Trustee under the Guarantee. Notwithstanding the foregoing, any
holder of Preferred Securities may institute a legal proceeding
directly against the Company to enforce such holder's rights to
receive payment under the Guarantee without first instituting a
legal proceeding against the Trust, the Guarantee Trustee or any
other person or entity. If the Company were to default on its
obligation to pay amounts payable on the Subordinated Debt
Securities or otherwise, the Trust would lack available funds for
the payment of distributions or amounts payable on redemption of
the Preferred Securities or otherwise, and, in such event,
holders of the Preferred Securities would not be able to rely
upon the Guarantee for payment of such amounts. In such event,
the Institutional Trustee (as defined herein), as registered
holder of the Subordinated Debt Securities, would be entitled to
exercise its rights against the Company pursuant to the terms of
the Subordinated Debt Securities, and a holder of Preferred
Securities would be entitled to institute directly a proceeding
for enforcement of payment to such holder of the principal of or
interest on the Subordinated Debt Securities having a principal
amount equal to the aggregate liquidation amount of the Preferred
Securities of such holder (a "Direct Action") on or after the
respective due date specified in the Subordinated Debt
Securities. See "Description of the Preferred Securities
Guarantees" and "Description of the Subordinated Debt Securities"
in the accompanying Prospectus. The Declaration provides that
each holder of Preferred Securities, by acceptance thereof,
agrees to the provisions of the Guarantee, including the
subordination provisions thereof, and the Indenture.
S-5
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as no Indenture Event of Default (as defined herein)
has occurred and is continuing, the Company has the right under
the Indenture to defer payments of interest on the Subordinated
Debt Securities by extending the interest payment period at any
time, and from time to time, on the Subordinated Debt Securities.
As a consequence of such an extension, quarterly distributions on
the Preferred Securities would be deferred (but would continue to
accrue, despite such deferral, with interest thereon compounded
quarterly) by the Trust during any such Extension Period. Such
right to extend the interest payment period for the Subordinated
Debt Securities is limited to a period not exceeding 20
consecutive quarters from the last Interest Payment Date (as
defined herein) to which interest was paid in full, and such
period may not extend beyond the maturity of the Subordinated
Debt Securities. In the event that the Company exercises this
right to defer interest payments, the Company shall not (a)
declare or pay any dividend on, or make any distribution or
liquidation payment with respect to, or redeem or purchase any of
its capital stock, (b) make any payment of principal, premium, if
any, or interest, if any, on or repay, repurchase or redeem any
debt securities (including other Subordinated Debt Securities)
issued by the Company that rank pari passu with or junior in
right of payment to the Subordinated Debt Securities or (c) make
any guarantee payments with respect to the foregoing, other than
pursuant to the Preferred Securities Guarantees (as defined in
the accompanying Prospectus)); provided, however, that nothing
herein shall be deemed to prohibit (i) dividends or distributions
payable in shares of the Company's capital stock, (ii)
reclassification of the Company's capital stock or exchange or
conversion of shares of one class or series of the Company's
capital stock into shares of another class or series of the
Company's capital stock, (iii) purchases or other acquisitions of
fractional interests in shares of the Company's capital stock and
(iv) purchases or other acquisitions of shares of the Company's
capital stock in connection with the satisfaction by the Company
of its obligations 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. Prior to the termination of any such
Extension Period, the Company may further extend the interest
payment period; provided, however, that such Extension Period,
together with all such previous and further extensions thereof,
may not exceed 20 consecutive quarters or extend beyond the
maturity of the Subordinated Debt Securities. Upon the
termination of any Extension Period and the payment of all
amounts then due, the Company may commence a new Extension
Period, subject to the above requirements. See "Description of
the Preferred Securities - Distributions" and "Description of the
Subordinated Debt Securities - Option to Extend Interest Payment
Period" herein.
Should the Company exercise its right to defer payments of
interest by extending the interest payment period, each holder of
Preferred Securities would be required to accrue income as OID in
respect of such deferred interest. As a result, each such holder
of Preferred Securities would recognize income for United States
federal income tax purposes in advance of the receipt of cash and
would not receive the cash from Washington Water Power Capital if
such holder disposes of its Preferred Securities prior to the
record date for the date on which distributions of such amounts
are made. The Company has no current intention of exercising its
right to defer payments of interest by extending the interest
payment period on the Subordinated Debt Securities. However,
should the Company determine to exercise such right in the
future, the market price of the Preferred Securities is likely to
be affected. A holder that disposes of its Preferred Securities
during an Extension Period, therefore, might not receive the same
return on its investment as a holder that continues to hold its
Preferred Securities. In addition, as a result of the existence
of the Company's right to defer interest payments, the market
price of the Preferred Securities (which represent an undivided
beneficial interest in the Subordinated Debt Securities) may be
more volatile than other securities the holders of which do not
have such rights. See "Certain United States Federal Income Tax
Considerations - Original Issue Discount" herein.
ADVERSE EFFECT OF POSSIBLE TAX LAW CHANGES
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the
"Bill"), the revenue portion of President Clinton's budget
proposal, was released. The Bill would, among other things,
generally treat as equity an instrument, issued by a corporation,
that has a maximum term of more than 20 years and that is not
shown as indebtedness on the separate balance sheet of the issuer
or, where the instrument is issued to a related party (other than
a corporation), where the holder or some other related party
issues a related instrument that is not shown as indebtedness on
the issuer's consolidated balance sheet. The above-described
provision was proposed to be effective generally for instruments
issued on or after December 7, 1995. If such provision were to
apply to the Subordinated Debt Securities, the Company would be
unable to deduct interest on the Subordinated Debt Securities.
However, on March 29, 1996, the Chairmen of the Senate Finance
and House Ways and Means Committees issued a joint statement to
the effect that it was their intention that the effective date of
S-6
the President's legislative proposals, if adopted, would be no
earlier than the date of appropriate Congressional action. There
can be no assurance, however, that current or future legislative
proposals or final legislation will not affect the ability of the
Company to deduct interest on the Subordinated Debt Securities.
If legislation were enacted limiting, in whole or in part, the
deductibility by the Company of interest on the Subordinated Debt
Securities for United States federal income tax purposes, such
enactment could give rise to a Tax Event. A Tax Event would
permit the Company either to distribute the Subordinated Debt
Securities to holders of the Preferred Securities or to cause a
redemption of the Preferred Securities, as described more fully
under "Description of the Preferred Securities - Tax Event
Redemption or Distribution" herein.
TAX EVENT REDEMPTION OR DISTRIBUTION
Upon the occurrence of a Tax Event, the Company shall have the
right either (i) to dissolve the Trust, with the result that the
Subordinated Debt Securities would be distributed to the holders
of the Trust Securities in connection with the liquidation of the
Trust; or (ii) to redeem the Subordinated Debt Securities, in
whole but not in part, in lieu of a distribution of the
Subordinated Debt Securities by the Trust, in which event the
Trust will redeem the Trust Securities in whole. See
"Description of the Preferred Securities - Tax Event Redemption
or Distribution" herein.
Under current United States federal income tax law, if the
Trust is treated as a "grantor trust" at the time of
distribution, a distribution of Subordinated Debt Securities upon
the dissolution of Washington Water Power Capital would not be a
taxable event to holders of the Preferred Securities. Upon
occurrence of a Tax Event, however, a distribution of cash to
holders of the Preferred Securities upon dissolution of
Washington Water Power Capital would be a taxable event to such
holders. See "Certain United States Federal Income Tax
Considerations - Receipt of Subordinated Debt Securities or Cash
Upon Liquidation of the Trust" herein.
There can be no assurance as to the market prices for the
Preferred Securities or the Subordinated Debt Securities that may
be distributed in exchange for Preferred Securities if a
dissolution or liquidation of the Trust were to occur.
Accordingly, the Preferred Securities that an investor may
purchase, whether pursuant to the offer made hereby or in the
secondary market, or the Subordinated Debt Securities that a
holder of Preferred Securities may receive on dissolution and
liquidation of the Trust, may trade at a discount to the price
that the investor paid to purchase the Preferred Securities
offered hereby. Because holders of Preferred Securities may
receive Subordinated Debt Securities upon the occurrence of a Tax
Event, prospective purchasers of Preferred Securities are also
making an investment decision with regard to the Subordinated
Debt Securities and should carefully review all the information
regarding the Subordinated Debt Securities contained herein and
in the accompanying Prospectus. See "Description of the Preferred
Securities - Tax Event Redemption or Distribution" and
"Description of the Subordinated Debt Securities - General"
herein.
LIMITED VOTING RIGHTS
Holders of Preferred Securities will have limited voting rights
and will not be entitled to vote to appoint, remove or replace,
or to increase or decrease the number of, the Washington Water
Power Trustees (as defined herein), which voting rights are
vested exclusively in the holder of the Common Securities. See
"Description of Preferred Securities - Voting Rights" herein.
TRADING PRICE OF PREFERRED SECURITIES MAY NOT REFLECT VALUE OF
ACCRUED BUT UNPAID INTEREST
The Preferred Securities may trade at a price that does not
fully reflect the value of accrued but unpaid interest with
respect to the underlying Subordinated Debt Securities. Should an
Extension Period occur, a holder who disposes of his Preferred
Securities between record dates for payments of distributions
thereon would be required to include accrued but unpaid interest
on the Subordinated Debt Securities through the date of
disposition in income as ordinary income (i.e., OID), and to add
such amount to his adjusted tax basis in his pro rata share of
the underlying Subordinated Debt Securities deemed disposed of.
To the extent the selling price is less than the holder's
adjusted tax basis (which will include all accrued but unpaid
interest included in the holder's income as OID), a holder would
recognize a capital loss. Subject to certain limited exceptions,
capital losses cannot be applied to offset ordinary income for
United States federal income tax purposes. See "Certain United
States Federal Income Taxation Considerations - Original Issue
Discount" and "- Sale, Exchange and Redemption of the Preferred
Securities" herein.
S-7
THE WASHINGTON WATER POWER COMPANY
The Company, which was incorporated in the State of Washington
in 1889, primarily operates in the electric and natural gas
utility business. As of January 1, 1996, the Company provides
electricity and natural gas in a 26,000 square mile area in
eastern Washington and northern Idaho with a population of
approximately 765,000. The Company also provides natural gas
service in northeast and southwest Oregon and the South Lake
Tahoe region of California with a population of approximately
460,000. The Company has its principal offices at 1411 East
Mission Avenue, Spokane, Washington 99202. Its telephone number
is 509-489-0500.
The Company's retail and wholesale businesses include the
generation, purchase, transmission, distribution and sale of
electric energy plus the purchase, transportation, distribution
and sale of natural gas. In addition to its utility businesses,
the Company owns Pentzer Corporation, parent company to the
majority of the Company's non-utility businesses.
At December 31, 1995, the Company's employees included 1,390
people in its utility operations and 1,240 people in its
majority-owned non-utility businesses. The Company's corporate
headquarters are in Spokane, Washington, which serves as the
Inland Northwest's center for manufacturing, transportation,
health care, education, communication, agricultural and service
businesses.
WASHINGTON WATER POWER CAPITAL
Washington Water Power Capital is a statutory business trust
formed under Delaware law pursuant to (i) a declaration of trust,
dated as of November 4, 1996, executed by the Company, as
sponsor, and the trustees of Washington Water Power Capital (the
"Washington Water Power Trustees") and (ii) the filing of a
certificate of trust with the Secretary of State of the State of
Delaware on November 4, 1996. Such declaration will be amended
and restated in its entirety (as so amended and restated, the
"Declaration") substantially in the form filed as an exhibit to
the Registration Statement of which this Prospectus Supplement
and the accompanying Prospectus form a part. The Declaration will
be qualified as an indenture under the Trust Indenture Act. Upon
issuance of the Preferred Securities, the purchasers thereof will
own all of the Preferred Securities. See "Description of the
Preferred Securities - Book-Entry Only Issuance - The Depository
Trust Company" herein. The Company will directly or indirectly
acquire Common Securities in an aggregate liquidation amount
equal to 3 percent of the total capital of Washington Water Power
Capital. Washington Water Power Capital exists for the exclusive
purposes of (i) issuing the Trust Securities representing
undivided beneficial interests in the assets of the Trust, (ii)
investing the gross proceeds of the sale of the Trust Securities
in the Subordinated Debt Securities and (iii) engaging in only
those other activities necessary or incidental thereto.
Accordingly, the Subordinated Debt Securities will be the sole
assets of the Trust, and payments under the Subordinated Debt
Securities will be the sole revenue of the Trust. All of the
Common Securities will be owned by the Company.
Pursuant to the Declaration, the number of Washington Water
Power Trustees will initially be three. Two of the Washington
Water Power Trustees (the "Regular Trustees") will be persons who
are employees or officers of, or who are affiliated with, the
Company. The third trustee will be a financial institution that
maintains its principal place of business in the State of
Delaware and is unaffiliated with the Company, which trustee will
serve as institutional trustee under the Declaration (the
"Institutional Trustee") and as indenture trustee for the
purposes of compliance with the provisions of the Trust Indenture
Act. Initially, Wilmington Trust Company, a Delaware banking
corporation, will be the Institutional Trustee until removed or
replaced by the holder of the Common Securities. For purposes of
compliance with the provisions of the Trust Indenture Act,
Wilmington Trust Company will act as Guarantee Trustee under the
Guarantee and as Debt Trustee (as defined herein) under the
Indenture. See "Description of the Preferred Securities
Guarantees" in the accompanying Prospectus and "Description of
the Preferred Securities - Voting Rights" herein.
The Institutional Trustee will hold title to the Subordinated
Debt Securities for the benefit of the holders of the Trust
Securities, and the Institutional Trustee will have the power to
exercise all rights, powers and privileges under the Indenture as
the holder of the Subordinated Debt Securities. In addition, the
Institutional Trustee will maintain exclusive control of a
segregated non-interest bearing bank account (the "Property
Account") to hold all payments made in respect of the
Subordinated Debt Securities for the benefit of the holders of
the Trust Securities. The Institutional Trustee will make
payments of distributions and payments on liquidation, redemption
and otherwise to the holders of the Trust Securities out of funds
from the Property Account. The Guarantee Trustee will hold the
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Guarantee for the benefit of the holders of the Preferred
Securities. The Company, as the direct or indirect holder of all
the Common Securities, will have the right to appoint, remove or
replace any Washington Water Power Trustee and to increase or
decrease the number of the Washington Water Power Trustees. The
Company will pay all fees and expenses related to Washington
Water Power Capital and the offering of the Trust Securities. See
"Description of the Preferred Securities Guarantees - Expense
Agreements" in the accompanying Prospectus.
The rights of the holders of the Preferred Securities,
including economic rights, rights to information and voting
rights, are set forth in the Declaration, the Delaware Business
Trust Act (the "Trust Act") and the Trust Indenture Act. See
"Description of the Preferred Securities" herein.
ACCOUNTING TREATMENT
The financial statements of Washington Water Power Capital will
be consolidated into the Company's consolidated financial
statements, with the Preferred Securities shown in the Company's
consolidated balance sheet as Company-Obligated Mandatorily
Redeemable Preferred Securities of Washington Water Power Capital
I. The footnotes to the Company's consolidated financial
statements will reflect that the sole asset of the Trust will be
$___________ principal amount of Subordinated Debt Securities of
the Company. See "Capitalization" herein.
CAPITALIZATION
The following table sets forth the actual capitalization of the
Company and its consolidated subsidiaries at June 30, 1996, and
the "As Adjusted" column reflects the application of the
estimated net proceeds from the sale of the Preferred Securities.
See "Use of Proceeds" herein. The table should be read in
conjunction with the Company's consolidated financial statements
and notes thereto included in the documents incorporated by
reference herein. See "Incorporation of Certain Documents by
Reference" in the accompanying Prospectus.
At September 30,
1996
-----------------------
Actual As Adjusted
-------- -------------
(dollars in millions)
Common Stock - 200,000,000 shares
authorized; shares outstanding:
55,960,360 . . . . . . . . . . . . $ 594.9 $
Note Receivable from Employee Stock
Ownership Plan . . . . . . . . . . (11.2)
Capital Stock Expense and Other Paid-
In Capital . . . . . . . . . . . . (10.1)
Unrealized Investment Gain - Net . . 10.1
Retained Earnings . . . . . . . . . . 136.2
-------- ---------
Total Common Equity . . . . . . . . . 719.9
-------- ---------
Preferred Stock . . . . . . . . . . . 115.0
-------- ---------
Company-Obligated Mandatorily
Redeemable Preferred Securities of
Washington Water Power Capital I . --
---------
Long-Term Debt . . . . . . . . . . . 727.1
-------- ---------
Total . . . . . . . . . . . . . . . $1,562.0 $
======== =========
(1) As described herein, the sole assets of the Trust will be
the _____% Junior Subordinated Deferrable Interest
Debentures, Series A, due 20__ of the Company with a
principal amount of approximately $___________, and upon
redemption of such debt, the Preferred Securities will be
mandatorily redeemable.
USE OF PROCEEDS
The Trust will use all proceeds received from the sale of the
Preferred Securities to purchase Subordinated Debt Securities
from the Company. The Company intends to use the net proceeds
from the issuance and sale of the Subordinated Debt Securities
for any or all of the following purposes: (i) to fund a portion
of the Company's construction, facility improvement and
maintenance programs, (ii) to retire or exchange one or more
outstanding series of its preferred stock, bonds or notes, (iii)
to reimburse the Company's treasury for funds previously expended
for these purposes and (iv) for other general corporate purposes.
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DESCRIPTION OF THE PREFERRED SECURITIES
The Preferred Securities will be issued pursuant to the terms
of the Declaration. The Declaration will be qualified as an
indenture under the Trust Indenture Act. The Institutional
Trustee, Wilmington Trust Company, will act as indenture trustee
for the Preferred Securities under the Declaration for purposes
of compliance with the provisions of the Trust Indenture Act. The
terms of the Preferred Securities will include those stated in
the Declaration and those made part of the Declaration by the
Trust Indenture Act. The following summary of the material terms
and provisions of the Preferred Securities does not purport to be
complete and is subject to, and qualified in its entirety by
reference to, the description in the accompanying Prospectus, the
Declaration (a copy of which is filed as an exhibit to the
Registration Statement of which this Prospectus Supplement is a
part), the Trust Act and the Trust Indenture Act.
GENERAL
The Declaration authorizes the Regular Trustees to issue on
behalf of the Trust the Trust Securities, which represent
undivided beneficial interests in the assets of the Trust. All of
the Common Securities will be owned, directly or indirectly, by
the Company. The Common Securities rank pari passu, and payments
will be made thereon on a pro rata basis, with the Preferred
Securities, except that upon the occurrence and during the
continuance of a Declaration Event of Default (as defined
herein), the rights of the holders of the Common Securities to
receive payment of periodic distributions and payments upon
liquidation, redemption and otherwise will be subordinated to the
rights of the holders of the Preferred Securities. The
Declaration does not permit the issuance by the Trust of any
securities other than the Trust Securities or the incurrence of
any indebtedness by the Trust.
Pursuant to the Declaration, the Institutional Trustee will own
the Subordinated Debt Securities purchased by the Trust for the
benefit of the holders of the Trust Securities. The payment of
distributions out of money held by the Trust and payments upon
redemption of the Preferred Securities or liquidation of the
Trust, are guaranteed by the Company to the extent described
under "Description of the Preferred Securities Guarantees" in the
accompanying Prospectus. The Guarantee will be held by Wilmington
Trust Company, the Guarantee Trustee, for the benefit of the
holders of the Preferred Securities. The Guarantee does not cover
payment of distributions when the Trust does not have sufficient
available funds to pay such distributions. In such event, the
remedy of a holder of Preferred Securities is to vote to direct
the Institutional Trustee to enforce the Institutional Trustee's
rights under the Subordinated Debt Securities except in the
limited circumstances in which the holder may take Direct Action.
See "- Voting Rights" and "- Declaration Events of Default"
herein.
DISTRIBUTIONS
Distributions on the Preferred Securities will be fixed at a
rate of ____% per annum of the stated liquidation amount of $25
per Preferred Security. Distributions in arrears for more than
one quarter will bear interest thereon at the rate of ____% per
annum thereof compounded quarterly. The term "distribution" as
used herein includes any such interest payable unless otherwise
stated. The amount of distributions payable for any period will
be computed on the basis of a 360-day year of twelve 30-day
months.
Distributions on the Preferred Securities will be cumulative,
will accrue from ______, 199_ and will be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of
each year, commencing ________ __, 199_, when, as and if
available for payment, by the Institutional Trustee, except as
otherwise described below.
So long as no Indenture Event of Default has occurred and is
continuing, the Company has the right under the Indenture to
defer payments of interest on the Subordinated Debt Securities by
extending the interest payment period at any time, and from time
to time on the Subordinated Debt Securities. As a consequence of
such an extension, quarterly distributions on the Preferred
Securities would be deferred (but would continue to accrue,
despite such deferral, with interest thereon compounded
quarterly) by the Trust during any such Extension Period. Such
right to extend the interest payment period for the Subordinated
Debt Securities is limited to a period not exceeding 20
consecutive quarters and such period may not extend beyond the
maturity of the Subordinated Debt Securities. In the event that
the Company exercises this right to defer interest payments, the
Company shall not (a) declare or pay any dividend on, or make any
distribution or liquidation payment with respect to, or redeem or
purchase any of its capital stock, (b) make any payment of
principal, premium, if any, or interest, if any, on or repay,
repurchase or redeem any debt securities (including other
Subordinated Debt Securities) issued by the Company that rank
S-10
pari passu with or junior in right of payment to the Subordinated
Debt Securities or (c) make any guarantee payments with respect
to the foregoing, other than pursuant to the Preferred Securities
Guarantees); provided, however, that nothing herein shall be
deemed to prohibit (i) dividends or distributions payable in
shares of the Company's capital stock, (ii) reclassification of
the Company's capital stock or exchange or conversion of shares
of one class or series of the Company's capital stock into shares
of another class or series of the Company's capital stock, (iii)
purchases or other acquisitions of fractional interests in shares
of the Company's capital stock and (iv) purchases or other
acquisitions of shares of the Company's capital stock in
connection with the satisfaction by the Company of its
obligations 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. Prior to the termination of any such Extension
Period, the Company may further extend the interest payment
period; provided, however, that such Extension Period, together
with all such previous and further extensions thereof, may not
exceed 20 consecutive quarters or extend beyond the maturity of
the Subordinated Debt Securities. Upon the termination of any
Extension Period and the payment of all amounts then due, the
Company may commence a new Extension Period, subject to the above
requirements. See "Description of the Subordinated Debt
Securities - Option to Extend Interest Payment Period" herein.
If distributions are deferred, the deferred distributions and
accrued interest thereon shall be paid to holders of record of
the Preferred Securities as they appear on the books and records
of the Trust on the record date next following the termination of
such deferral period.
Distributions on the Preferred Securities must be paid on the
dates payable to the extent that the Trust has in the Property
Account funds available for the payment of such distributions.
The Trust's funds available for distribution to the holders of
the Preferred Securities will be limited to payments received
from the Company on the Subordinated Debt Securities. The
payment of distributions out of moneys held by the Trust is
guaranteed by the Company to the extent set forth under
"Description of the Preferred Securities Guarantees" in the
accompanying Prospectus.
Distributions on the Preferred Securities will be payable to
the holders thereof as they appear on the books and records of
the Trust on the relevant record dates. Such distributions will
be paid through the Institutional Trustee who will hold amounts
received in respect of the Subordinated Debt Securities in the
Property Account for the benefit of the holders of the Trust
Securities. The Regular Trustees shall have the right to select
relevant record dates, which shall be at least one Business Day
(as defined below) but less than 50 Business Days before the
relevant payment dates. In the event that any date on which
distributions are to be made on the Preferred Securities is not a
Business Day, then payment of the distributions payable on such
date will be made on the next succeeding Business Day, except
that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if
made on such payment date. A "Business Day" shall mean any day
other than Saturday, Sunday or any other day on which banking
institutions in the City of Wilmington, Delaware and The City of
New York are authorized or required by any applicable law to
remain closed.
REDEMPTION
The Subordinated Debt Securities will mature on ________ __,
20__ and may be redeemed, in whole or in part, at any time on or
after ________ __, 20__, or, in whole but not in part, at any
time in certain circumstances upon the occurrence of a Tax Event.
Upon the repayment of the Subordinated Debt Securities, whether
at maturity or upon redemption, the proceeds from such repayment
shall simultaneously be applied to redeem Trust Securities having
an aggregate liquidation amount equal to the aggregate principal
amount of the Subordinated Debt Securities so repaid or redeemed
at the Redemption Price; provided, however, that holders of Trust
Securities shall be given not less than 30 nor more than 60 days'
notice of such redemption. Redemptions of the Preferred
Securities shall be made and the Redemption Price shall be
payable on the redemption date only to the extent that the Trust
has funds on hand available for the payment of such Redemption
Price. See "Description of the Subordinated Debt Securities -
Redemption" in the accompanying Prospectus. In the event that
fewer than all of the outstanding Preferred Securities are to be
redeemed, the Preferred Securities will be redeemed pro rata as
described under "- Redemption Procedures" below.
TAX EVENT REDEMPTION OR DISTRIBUTION
"Tax Event" means the receipt by the Company of an opinion of
counsel to the effect that, as a result of (a) any amendment to,
clarification of or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the
United States or any political subdivision or taxing authority
S-11
thereof or therein, (b) any judicial decision, official
administrative pronouncement, ruling, regulatory procedure,
notice or announcement, including any notice or announcement of
intent to adopt such procedures or regulations (an
"Administrative Action") or any amendment to, clarification of,
or change in the official position or the interpretation of such
Administrative Action or judicial decision that differs from the
theretofore generally accepted position, in each case, by any
legislative body, court, governmental agency or regulatory
authority, irrespective of the manner in which such amendment,
clarification or change is made known, which amendment,
clarification or change is effective or such pronouncement or
decision is announced, in each case, on or after the date of the
original issuance of the Subordinated Debt Securities (including
the enactment of any legislation and the publication of any
judicial decision or regulatory determination on or after such
date), there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date of such
amendment, clarification or change, subject to United States
federal income tax with respect to income accrued or received on
the Subordinated Debt Securities, (ii) the Trust is, or will be
within 90 days of the date of such amendment, clarification or
change, subject to more than a de minimis amount of taxes, duties
or other governmental charges or (iii) interest payable on the
Subordinated Debt Securities is not, or within 90 days of the
date of such amendment, clarification or change will not be,
deductible, in whole or in part, by the Company for United States
federal income tax purposes.
If, at any time, a Tax Event shall occur and be continuing, the
Company may, at its option, within 90 days following the
occurrence of such Tax Event, (i) dissolve the Trust with the
result that the Subordinated Debt Securities with an aggregate
principal amount equal to the aggregate stated liquidation amount
of, with an interest rate identical to the distribution rate of,
and accrued and unpaid interest equal to accrued and unpaid
distributions on, and having the same record date for payment as
the Trust Securities, would be distributed to the holders of the
Trust Securities in liquidation of such holders' interests in the
Trust on a pro rata basis, or (ii) upon not less than 30 nor more
than 60 days' notice, redeem the Subordinated Debt Securities, in
whole but not in part, for cash, and, following such redemption,
redeem the Trust Securities at the Redemption Price; provided,
however, that if at the time there is available to the Company or
the Trust the opportunity to eliminate, within such 90-day
period, the Tax Event, by taking some ministerial action such as
filing a form or making an election or pursuing some other
similar reasonable measure that has no adverse effect on the
Trust, the Company or the holders of the Trust Securities, the
Company or the Trust will pursue such measure in lieu of such
dissolution and distribution or redemption.
If the Subordinated Debt Securities are distributed to the
holders of the Preferred Securities upon termination of the Trust
in accordance with the Declaration, the Company will use all
reasonable efforts to cause the Subordinated Debt Securities to
be listed on the NYSE or on such other securities exchange as the
Preferred Securities are then listed.
After the date for any distribution of Subordinated Debt
Securities upon dissolution of the Trust, (i) the Preferred
Securities will be deemed to no longer be outstanding and (ii)
any certificates representing Preferred Securities will be deemed
to represent Subordinated Debt Securities having an aggregate
principal amount equal to the aggregate stated liquidation amount
of, with an interest rate identical to the distribution rate of,
and accrued and unpaid interest equal to accrued and unpaid
distributions on, and having the same record date for payment as
such Preferred Securities until such certificates are presented
to the Company or its agent for transfer or reissuance.
REDEMPTION PROCEDURES
The Trust may not redeem fewer than all of the outstanding
Preferred Securities unless all accrued and unpaid distributions
have been paid on all Preferred Securities for all quarterly
distribution periods terminating on or prior to the date of
redemption.
If the Trust gives a notice of redemption in respect of
Preferred Securities, then, provided that the Company has paid to
the Institutional Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the
Subordinated Debt Securities, upon presentation of the Preferred
Securities, the Institutional Trustee will pay the relevant
Redemption Price to the holder or holders of such Preferred
Securities. See "-Book-Entry Only Issuance - The Depository Trust
Company" for a more complete discussion of payment mechanics
applicable so long as the Preferred Securities are held in book-
entry form. If notice of redemption shall have been given and
funds deposited as required, then, immediately prior to the close
of business on the date of such deposit, distributions will cease
to accrue and all rights of holders of such Preferred Securities
so called for redemption will cease, except the right of the
holders of such Preferred Securities to receive the Redemption
Price but without interest on such Redemption Price. In the event
that any date fixed for redemption of Preferred Securities is not
a Business Day, then payment of the Redemption Price payable on
such date will be made on the next succeeding day that is a
S-12
Business Day, except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on such redemption date. In the event that
payment of the Redemption Price in respect of Preferred
Securities is improperly withheld or refused and not paid either
by the Trust, or by the Company pursuant to the Guarantee,
distributions on such Preferred Securities will continue to
accrue at the then applicable rate from the original redemption
date to the date of payment, in which case the actual payment
date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price.
In the event that fewer than all of the outstanding Preferred
Securities are to be redeemed, the Preferred Securities will be
redeemed pro rata. The particular Preferred Securities to be
redeemed shall be selected on a pro rata basis not more than 60
days prior to the redemption date by the Institutional Trustee
from the outstanding Preferred Securities not previously called
for redemption, by such method as the Institutional Trustee shall
deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to $25 or an integral multiple
of $25 in excess thereof) of the liquidation amount of Preferred
Securities of a denomination larger than $25. The Institutional
Trustee shall notify the transfer agent and registrar in writing
of the Preferred Securities selected for redemption, and in the
case of any Preferred Securities selected for partial redemption,
the liquidation amount thereof to be redeemed. For all purposes
of the Declaration, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed or
to be redeemed only in part, or to the portion of the aggregate
liquidation amount of Preferred Securities which has been or is
to be redeemed.
Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Company
or its subsidiaries may at any time, and from time to time,
purchase outstanding Preferred Securities by tender, in the open
market or by private agreement.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary liquidation,
dissolution, winding-up or termination of the Trust (each a
"Liquidation"), the then holders of the Preferred Securities will
be entitled to receive out of the assets of the Trust, after
satisfaction of liabilities to creditors, distributions in an
amount equal to the aggregate of the stated liquidation amount of
$25 per Preferred Security plus accrued and unpaid distributions
thereon to the date of payment (the "Liquidation Distribution"),
unless, in connection with such Liquidation, Subordinated Debt
Securities in an aggregate stated principal amount equal to the
aggregate stated liquidation amount of, with an interest rate
identical to the distribution rate of, and accrued and unpaid
interest equal to accrued and unpaid distributions on, and having
the same record date for payment as the Preferred Securities,
have been distributed on a pro rata basis to the holders of the
Preferred Securities in exchange for such Preferred Securities.
If, upon any such Liquidation, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution,
then the amounts payable directly by the Trust on the Preferred
Securities shall be paid on a pro rata basis.
Pursuant to the Declaration, the Trust shall terminate (i) on
___________, 20__, the expiration of the term of the Trust, (ii)
upon the bankruptcy of the Company, (iii) upon the filing of a
certificate of dissolution or its equivalent with respect to the
Company, the filing of a certificate of cancellation with respect
to the Trust after obtaining the consent of the holders of at
least a majority in liquidation amount of the Trust Securities
affected thereby voting together as a single class to file such
certificate of cancellation, or the revocation of the charter of
the Company and the expiration of 90 days after the date of
revocation without a reinstatement thereof, (iv) upon the
distribution of Subordinated Debt Securities in connection with
the occurrence of a Tax Event, (v) upon the entry of a decree of
a judicial dissolution of the Company or the Trust, or (vi) upon
the redemption of all the Trust Securities.
DECLARATION EVENTS OF DEFAULT
An event of default under the Indenture (an "Indenture Event of
Default") constitutes an event of default under the Declaration
with respect to the Trust Securities (a "Declaration Event of
Default"); provided, however, that pursuant to the Declaration,
the holder of the Common Securities will be deemed to have waived
any Declaration Event of Default with respect to the Common
Securities until all Declaration Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise
eliminated. Until such Declaration Events of Default with respect
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to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Institutional Trustee will be deemed to
be acting solely on behalf of the holders of the Preferred
Securities and only the holders of the Preferred Securities will
have the right to direct the Institutional Trustee with respect
to certain matters under the Declaration, and therefore the
Indenture.
If a Declaration Event of Default occurs and is continuing, the
Institutional Trustee will have the right to enforce its rights
against the Company as a holder of the Subordinated Debt
Securities. In addition, the holders of a majority in liquidation
amount of the Preferred Securities will have the right to direct
the time, method and place of conducting any proceeding for any
remedy available to the Institutional Trustee or to direct the
exercise of any trust or power conferred upon the Institutional
Trustee under the Declaration, including the right to direct the
Institutional Trustee to exercise the remedies available to it as
a holder of the Subordinated Debt Securities. If the
Institutional Trustee fails to enforce its rights under the
Subordinated Debt Securities after a holder of Preferred
Securities has made a written request, such holder of record of
Preferred Securities may institute a legal proceeding against the
Company to enforce the Institutional Trustee's rights under the
Subordinated Debt Securities without first instituting any legal
proceeding against the Institutional Trustee or any other person
or entity. Notwithstanding the foregoing, if a Declaration Event
of Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest or
principal on the Subordinated Debt Securities on the date such
interest or principal is otherwise payable (or in the case of
redemption, the redemption date), then a holder of Preferred
Securities may directly institute a proceeding for enforcement of
payment to such holder directly of the principal of or interest
on the Subordinated Debt Securities having a principal amount
equal to the aggregate liquidation amount of the Preferred
Securities of such holder on or after the respective due date
specified in the Subordinated Debt Securities. In connection with
such Direct Action, the Company will be subrogated to the rights
of such holder of Preferred Securities under the Declaration to
the extent of any payment made by the Company to such holder of
Preferred Securities in such Direct Action. The holders of
Preferred Securities will not be able to exercise directly any
other remedy available to the holders of the Subordinated Debt
Securities.
Upon the occurrence of a Declaration Event of Default, the
Institutional Trustee, as the sole holder of the Subordinated
Debt Securities, will have the right under the Indenture to
declare the principal of and interest on the Subordinated Debt
Securities to be immediately due and payable. The Company and the
Trust are each required to file annually with the Institutional
Trustee an officer's certificate as to its compliance with all
conditions and covenants under the Declaration.
VOTING RIGHTS
Except as described herein, under the Trust Act, the Trust
Indenture Act and under "Description of the Preferred Securities
Guarantees - Modification of the Preferred Securities Guarantees;
Assignment" in the accompanying Prospectus, and as otherwise
required by law and the Declaration, the holders of the Preferred
Securities will have no voting rights.
Subject to the requirement of the Institutional Trustee
obtaining a tax opinion in certain circumstances set forth in the
last sentence of this paragraph, the holders of a majority in
aggregate liquidation amount of the Preferred Securities have the
right to direct the time, method and place of conducting any
proceeding for any remedy available to the Institutional Trustee,
or direct the exercise of any trust or power conferred upon the
Institutional Trustee under the Declaration including the right
to direct the Institutional Trustee, as holder of the
Subordinated Debt Securities, to (i) exercise the remedies
available to it under the Indenture as a holder of the
Subordinated Debt Securities, (ii) waive any past Indenture Event
of Default that is waivable under the Original Indenture (as
defined herein), (iii) exercise any right to rescind or annul a
declaration that the principal of all the Subordinated Debt
Securities shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the
Subordinated Debt Securities where such consent shall be
required. If the Institutional Trustee fails to enforce its
rights under the Subordinated Debt Securities after a holder of
record of Preferred Securities has made a written request, such
holder of record of Preferred Securities may institute a legal
proceeding directly against the Company to enforce the
Institutional Trustee's rights under the Subordinated Debt
Securities, to the fullest extent permitted by law, without first
instituting any legal proceeding against the Institutional
Trustee or any other person or entity. Notwithstanding the
foregoing, if a Declaration Event of Default has occurred and is
continuing and such event is attributable to the failure of the
Company to pay interest or principal on the Subordinated Debt
Securities on the date such interest or principal is otherwise
payable (or in the case of redemption on the redemption date),
then a holder of Preferred Securities may, to the fullest extent
permitted by law, directly institute a proceeding for enforcement
of payment to such holder of the principal of or interest on the
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Subordinated Debt Securities having a principal amount equal to
the aggregate liquidation amount of the Preferred Securities of
such holder on or after the respective due date specified in the
Subordinated Debt Securities. The Institutional Trustee shall
notify all holders of the Preferred Securities of any notice of
default received from the Debt Trustee with respect to the
Subordinated Debt Securities. Such notice shall state that such
Indenture Event of Default also constitutes a Declaration Event
of Default. Except with respect to directing the time, method and
place of conducting a proceeding for a remedy, the Institutional
Trustee shall not take any of the actions described in clause
(i), (ii) or (iii) above unless the Institutional Trustee has
obtained an opinion of tax counsel to the effect that, as a
result of such action, the Trust will not be treated as an
association taxable as a corporation for United States federal
income tax purposes.
In the event the consent of the Institutional Trustee, as the
holder of the Subordinated Debt Securities, is required under the
Indenture with respect to any amendment, modification or
termination of the Indenture, the Institutional Trustee shall
request the direction of the holders of the Trust Securities with
respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination
as directed by a majority in liquidation amount of the Trust
Securities voting together as a single class. The Institutional
Trustee shall not take any such action in accordance with the
directions of the holders of the Trust Securities unless the
Institutional Trustee has obtained an opinion of tax counsel to
the effect that for the purposes of United States federal income
tax the Trust will not be treated as an association taxable as a
corporation.
A waiver of an Indenture Event of Default will constitute a
waiver of the corresponding Declaration Event of Default.
Any required approval or direction of holders of Preferred
Securities may be given at a separate meeting of holders of
Preferred Securities convened for such purpose, at a meeting of
all of the holders of Trust Securities or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting
at which holders of Preferred Securities are entitled to vote, or
of any matter upon which action by written consent of such
holders is to be taken, to be mailed to each holder of record of
Preferred Securities. Each such notice will include a statement
setting forth the following information: (i) the date of such
meeting or the date by which such action is to be taken; (ii) a
description of any resolution proposed for adoption at such
meeting on which such holders are entitled to vote or of such
matter upon which written consent is sought and (iii)
instructions for the delivery of proxies or consents. No vote or
consent of the holders of Preferred Securities will be required
for the Trust to redeem and cancel Preferred Securities or
distribute Subordinated Debt Securities in accordance with the
Declaration.
Notwithstanding that holders of Preferred Securities are
entitled to vote or consent under any of the circumstances
described above, any of the Preferred Securities that are owned
at such time by the Company or any entity directly or indirectly
controlling or controlled by, or under direct or indirect common
control with, the Company, shall not be entitled to vote or
consent and shall, for purposes of such vote or consent, be
treated as if such Preferred Securities were not outstanding.
Holders of the Preferred Securities will have no rights to
appoint or remove the Washington Water Power Trustees, who may be
appointed, removed or replaced solely by the Company as the
indirect or direct holder of all of the Common Securities.
MODIFICATION OF THE DECLARATION
The Declaration may be modified and amended if approved by the
Regular Trustees (and in certain circumstances the Institutional
Trustee), provided, however, that if any proposed amendment
provides for, or the Regular Trustees otherwise propose to
effect, (i) any action that would adversely affect the powers,
preferences or special rights of the Trust Securities in any
material respect, whether by way of amendment to the Declaration
or otherwise or (ii) the dissolution, winding-up or termination
of the Trust other than pursuant to the terms of the Declaration,
then the holders of the Trust Securities voting together as a
single class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective
except with the approval of at least a majority in liquidation
amount of the Trust Securities affected thereby; provided,
however, that if any amendment or proposal referred to in clause
(i) above would so adversely affect only the Preferred Securities
or the Common Securities, then only the affected class will be
entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of a
majority in liquidation amount of such class of Securities.
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Notwithstanding the foregoing, no amendment or modification may
be made to the Declaration if such amendment or modification
would (i) cause the Trust to be classified for purposes of United
States federal income taxation as an association taxable as a
corporation, (ii) reduce or otherwise adversely affect the powers
of the Institutional Trustee or (iii) cause the Trust to be
deemed an "investment company" which is required to be registered
under the Investment Company Act of 1940, as amended (the "1940
Act").
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS
The Trust may not consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties
and assets substantially as an entirety to, any corporation or
other body, except as described below. The Trust may, with the
consent of the Regular Trustees and without the consent of the
holders of the Trust Securities, the Institutional Trustee or the
Delaware Trustee, merge, consolidate or amalgamate with or into,
or be replaced by, or convey, transfer or lease its properties
and assets substantially as an entirety, to a trust organized as
such under the laws of any State of the United States; provided,
however, that (i) if the Trust is not the survivor such successor
entity either (x) expressly assumes all of the obligations of the
Trust under the Trust Securities or (y) substitutes for the
Preferred Securities other securities having substantially the
same terms as the Preferred Securities (the "Successor
Securities"), so long as the Successor Securities rank the same
as the Trust Securities rank with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) the
Company expressly appoints a trustee of such successor entity
possessing the same powers and duties as the Institutional
Trustee as the holder of the Subordinated Debt Securities, (iii)
the Preferred Securities or any Successor Securities are listed,
or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with another
organization on which the Preferred Securities are then listed or
quoted, if any, (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of
the Trust Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of the
holders' interest in the new entity), (vi) such successor entity
has a purpose identical to that of the Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Company has received an opinion of a
nationally recognized independent counsel to the Trust
experienced in such matters to the effect that, (A) such merger,
consolidation, amalgamation, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of
the holders of the Trust Securities (including any Successor
Securities) in any material respect (other than with respect to
any dilution of the holders' interest in the new entity), and (B)
following such merger, consolidation, amalgamation or
replacement, conveyance, transfer or lease, neither the Trust nor
such successor entity will be required to register as an
investment company under the 1940 Act and (viii) the Company or
any permitted successor guarantees the obligations of such
successor entity under the Successor Securities at least to the
extent provided by the Guarantee. Notwithstanding the foregoing,
the Trust shall not, except with the consent of holders of 100%
in liquidation amount of the Trust Securities, merge, consolidate
or amalgamate with or into, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an
entirety to, any other entity or permit any other entity to
merge, consolidate or amalgamate with or into, or replace it, if
such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease would cause the Trust or the
Successor Entity to be treated as an association taxable as a
corporation merge for United States federal income tax purposes.
BOOK-ENTRY ONLY ISSUANCE - THE DEPOSITORY TRUST COMPANY
DTC will act as securities depositary for the Preferred
Securities. The Preferred Securities will be issued only as
fully-registered securities registered in the name of Cede & Co.
(DTC's nominee). One or more fully-registered global Preferred
Securities certificates, representing the total aggregate number
of Preferred Securities, will be issued and will be deposited
with DTC.
DTC is a limited-purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of
the New York Banking Law, a member of the Federal Reserve System,
a "clearing corporation" within the meaning of the New York
Uniform Commercial Code and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934, as amended. DTC holds securities that its
participants ("Participants") deposit with DTC. DTC also
facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in
Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. "Direct Participants" in DTC
include securities brokers and dealers, banks, trust companies,
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clearing corporations and certain other organizations. DTC is
owned by a number of its Direct Participants and by the NYSE, the
American Stock Exchange, Inc., and the National Association of
Securities Dealers, Inc. Access to the DTC system is also
available to others, such as securities brokers and dealers,
banks and trust companies that clear transactions through or
maintain a custodial relationship with a Direct Participant
either directly or indirectly ("Indirect Participants"). The
rules applicable to DTC and its Participants are on file with the
Securities and Exchange Commission.
Purchases of Preferred Securities within the DTC system must be
made by or through Direct Participants, which will receive a
credit for the Preferred Securities on DTC's records. The
ownership interest of each actual purchaser of each Preferred
Security ("Beneficial Owner") is in turn to be recorded on the
Indirect Participants' records. Beneficial Owners will not
receive written confirmation from DTC of their purchase, but
Beneficial Owners are expected to receive written confirmation
providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect
Participants through which the Beneficial Owners entered into the
transaction. Transfers of ownership interests in the Preferred
Securities are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial
Owners will not receive certificates representing their ownership
interests in the Preferred Securities, except in the event that
use of the book-entry system for the Preferred Securities is
discontinued.
To facilitate subsequent transfers, all Preferred Securities
deposited by Participants with DTC are registered in the name of
DTC's partnership nominee, Cede & Co. The deposit of Preferred
Securities with DTC and their registration in the name of Cede &
Co. effect no change in beneficial ownership. DTC has no
knowledge of the actual Beneficial Owners of the Preferred
Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Preferred Securities are
credited, which may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their
holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants,
and by Direct Participants and Indirect Participants to
Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in
effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all
of the Preferred Securities are being redeemed, DTC's practice is
to determine by lot the amount of the interest of each Direct
Participant to be redeemed.
Neither DTC nor Cede & Co. will itself consent or vote with
respect to Preferred Securities. Under its usual procedures, DTC
mails an Omnibus Proxy to the Trust as soon as possible after the
record date. The Omnibus Proxy assigns Cede & Co.'s consenting or
voting rights to those Direct Participants to whose accounts the
Preferred Securities are credited on the record date (identified
in a listing attached to the Omnibus Proxy).
Distributions on the Preferred Securities will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on the
relevant payment date in accordance with their respective
holdings shown on DTC's records unless DTC has reason to believe
that it will not receive payment on such payment date. Payments
by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of
such Participants and not of DTC, the Trust or the Company,
subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of distributions to DTC is the
responsibility of the Trust, disbursement of such payments to
Direct Participants shall be the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners is the
responsibility of Direct Participants and Indirect Participants.
DTC may discontinue providing its services as securities
depositary with respect to the Preferred Securities at any time
by giving notice to the Trust. Under such circumstances, in the
event that a successor securities depositary is not obtained,
Preferred Security certificates are required to be printed and
delivered. Additionally, the Trust (with the consent of the
Company) may decide to discontinue use of the system of book-
entry transfers through DTC (or a successor depositary). In that
event, certificates for the Preferred Securities will be printed
and delivered.
The above information in this section concerning DTC and DTC's
book-entry system has been obtained from sources that the Trust
and the Company believe to be reliable, but the Trust and the
Issuer take no responsibility for the accuracy thereof.
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Except as provided herein, a Beneficial Owner of an interest in
a global Preferred Securities certificate will not be entitled to
receive physical delivery of Preferred Securities. Accordingly,
each Beneficial Owner must rely on the procedures of DTC to
exercise any rights under the Preferred Securities.
REGISTRAR, TRANSFER AGENT AND PAYING AGENT
Payments in respect of the Preferred Securities shall be made
by check mailed to the address of the holder or holders entitled
thereto as such address shall appear on the books and records of
the Trust on the record date. See "- Book-Entry Only Issuance -
The Depository Trust Company" for a more complete discussion of
payment mechanics applicable so long as the Preferred Securities
are held in book-entry form. The paying agent shall initially be
Wilmington Trust Company. The paying agent shall be permitted to
resign as paying agent upon 30 days' written notice to the
Regular Trustees. In the event that Wilmington Trust Company
shall no longer be the paying agent, the Regular Trustees shall
appoint a successor to act as paying agent (which shall be a bank
or trust company).
Wilmington Trust Company will act as registrar and transfer
agent for the Preferred Securities.
Registration of transfers of Preferred Securities will be
effected without charge by or on behalf of the Trust, but upon
payment (with the giving of such indemnity as the Trust or the
Company may reasonably require) in respect of any documentary
stamp tax or other similar governmental charges which may be
imposed in relation to it.
The Trust will not be required to register or cause to be
registered the transfer of Preferred Securities after such
Preferred Securities have been called for redemption.
INFORMATION CONCERNING THE INSTITUTIONAL TRUSTEE
The Institutional Trustee, prior to the occurrence of a default
with respect to the Trust Securities and after the curing of any
defaults that may have occurred, undertakes to perform only such
duties as are specifically set forth in the Declaration and,
after such default, shall exercise the same degree of care as a
prudent individual would exercise in the conduct of his or her
own affairs. Subject to such provisions, the Institutional
Trustee is under no obligation to exercise any of the powers
vested in it by the Declaration at the request of any holder of
Preferred Securities, unless offered reasonable indemnity by such
holder against the costs, expenses and liabilities which might be
incurred thereby; provided, however, that upon the occurrence of
a Declaration Event of Default, no such provisions shall be taken
to relieve the Institutional Trustee of its obligation to
exercise its rights and powers under the Declaration. The
Institutional Trustee also serves as trustee under the Guarantee
and the Indenture.
GOVERNING LAW
The Declaration and the Preferred Securities will be governed
by and construed in accordance with the laws of the State of
Delaware.
MISCELLANEOUS
The Regular Trustees are authorized and directed to operate the
Trust in such a way so that the Trust will not be required to
register as an "investment company" under the 1940 Act or treated
as an association taxable as a corporation for United States
federal income tax purposes. The Company is authorized and
directed to conduct its affairs so that the Subordinated Debt
Securities will be treated as indebtedness of the Company for
United States federal income tax purposes. In this connection,
the Company and the Regular Trustees are authorized to take any
action, not inconsistent with applicable law, the certificate of
trust of the Trust or the certificate of incorporation of the
Company, that each of the Company and the Regular Trustees
determine in their discretion to be necessary or desirable to
achieve such end, as long as such action does not materially
adversely affect the interests of the holders of the Preferred
Securities or vary the terms thereof.
Holders of the Preferred Securities have no preemptive rights.
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DESCRIPTION OF THE SUBORDINATED DEBT SECURITIES
Set forth below is a description of the specific terms of the
Subordinated Debt Securities in which the Trust will invest the
proceeds from the issuance and sale of the Trust Securities. This
description supplements the description of the general terms and
provisions of the Subordinated Debt Securities set forth in the
accompanying Prospectus under the caption "Description of the
Subordinated Debt Securities." The following description does not
purport to be complete and is subject to, and is qualified in its
entirety by reference to, the description in the accompanying
Prospectus and the Indenture, dated as of ______ 1, 199_ (the
"Original Indenture"), between the Company and Wilmington Trust
Company, as Trustee (the "Debt Trustee"), (the Original
Indenture, as amended and supplemented from time to time, is
hereinafter referred to as the "Indenture"), the form of which is
filed as an exhibit to the Registration Statement of which this
Prospectus Supplement and the accompanying Prospectus form a
part. Certain capitalized terms used herein are defined in the
Indenture.
Under certain circumstances involving the dissolution of the
Trust following the occurrence of a Tax Event, Subordinated Debt
Securities may be distributed to the holders of the Trust
Securities in liquidation of the Trust. See "Description of the
Preferred Securities - Tax Event Redemption or Distribution"
herein.
If the Subordinated Debt Securities are distributed to the
holders of the Preferred Securities upon termination of the Trust
in accordance with the Declaration, the Company will use all
reasonable efforts to have the Subordinated Debt Securities
listed on the NYSE or on such other national securities exchange
or similar organization on which the Preferred Securities are
then listed or quoted.
GENERAL
Concurrently with the issuance of the Preferred Securities, the
Trust will invest the proceeds thereof and the consideration paid
by the Company for the Common Securities in the Subordinated Debt
Securities issued by the Company. The Subordinated Debt
Securities will bear interest at the rate of __% per annum of the
principal amount thereof, payable quarterly in arrears on March
31, June 30, September 30 and December 31 of each year (each, an
"Interest Payment Date"), commencing ________ __, 199_, to the
persons in whose names the Subordinated Debt Securities are
registered, subject to certain exceptions, as of the close of
business on the Regular Record Date next preceding such Interest
Payment Date. Each Subordinated Debt Security will be held in the
name of the Institutional Trustee in trust for the benefit of the
holders of the Preferred Securities. The amount of interest
payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which
interest is payable on the Subordinated Debt Securities is not a
Business Day, then payment of the interest payable on such date
will be made on the next succeeding Business Day, except that, if
such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on the
date such payment was originally payable. Interest that is in
arrears for more than one quarter will bear additional interest
on the amount thereof, to the extent permitted by law, at the
rate of __% per annum thereof, compounded quarterly. The term
"interest" as used herein shall include quarterly interest
payments, interest on quarterly interest payments in arrears and
Additional Interest (as defined below), as applicable.
The Company will covenant, that, if at any time while the
Institutional Trustee under the Declaration is the holder of the
Subordinated Debt Securities, Washington Water Power Trust or the
Institutional Trustee shall be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any
other taxing authority, then, in any such case, the Company will
pay as additional interest ("Additional Interest") on the
Subordinated Debt Securities such additional amounts as shall be
required so that the net amounts received and retained by
Washington Water Power Trust and the Institutional Trustee after
paying such taxes, duties, assessments or other governmental
charges will be equal to the amounts Washington Water Power Trust
and the Institutional Trustee would have received had no such
taxes, duties, assessments or other governmental charges been
imposed.
The Subordinated Debt Securities will be issued as a series of
Subordinated Debt Securities under the Indenture. The
Subordinated Debt Securities will mature on ________ __, 20__.
The Subordinated Debt Securities will be unsecured and will rank
junior and be subordinate in right of payment to all Senior
Indebtedness of the Company. The Indenture does not limit the
incurrence or issuance of other secured or unsecured debt of the
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Company, whether under the Indenture, any other indenture that
the Company may enter into in the future or otherwise. See
"Description of the Subordinated Debt Securities - Subordination"
in the accompanying Prospectus.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as no Indenture Event of Default has occurred and is
continuing, the Company has the right under the Indenture at any
time, and from time to time, to extend the interest payment
period on the Subordinated Debt Securities to a period not
exceeding 20 consecutive quarters from the last Interest Payment
Date to which interest was paid in full, and such period may not
extend beyond the maturity of the Subordinated Debt Securities.
In the event that the Company exercises this right to defer
interest payments, the Company shall not (a) declare or pay any
dividend on, or make any distribution or liquidation payment with
respect to, or redeem or purchase any of its capital stock, (b)
make any payment of principal, premium, if any, or interest, if
any, on or repay, repurchase or redeem any debt securities
(including other Subordinated Debt Securities) issued by the
Company that rank pari passu with or junior in right of payment
to the Subordinated Debt Securities or (c) make any guarantee
payments with respect to the foregoing, other than pursuant to
the Preferred Securities Guarantees); provided, however, that
nothing herein shall be deemed to prohibit (i) dividends or
distributions payable in shares of the Company's capital stock,
(ii) reclassification of the Company's capital stock or exchange
or conversion of shares of one class or series of the Company's
capital stock into shares of another class or series of the
Company's capital stock, (iii) purchases or other acquisitions of
fractional interests in shares of the Company's capital stock and
(iv) purchases or other acquisitions of shares of the Company's
capital stock in connection with the satisfaction by the Company
of its obligations 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. Prior to the termination of any such
Extension Period, the Company may further extend the interest
payment period; provided, however, that such Extension Period,
together with all such previous and further extensions thereof,
may not exceed 20 consecutive quarters or extend beyond the
Stated Maturity of the Subordinated Debt Securities. Upon the
termination of an Extension Period and the payment of all amounts
then due, the Company may commence a new Extension Period,
subject to the above requirements. No interest shall be due and
payable during an Extension Period, except at the end thereof.
The Company must give the Institutional Trustee, the Regular
Trustees and the Debt Trustee written notice of (i) any election
by the Company to initiate an Extension Period and the duration
thereof, (ii) any election by the Company to extend an Extension
Period beyond the date on which that Extension Period is then
scheduled to terminate and the duration of such extension and
(iii) any election by the Company to make a full payment of
interest accrued on the Subordinated Debt Securities on any date
during an Extension Period and the amount of such payment. The
Company shall give such notice of any election described in
clause (i) or (ii) in the next preceding sentence not less than
10 days prior to the Regular Record Date with respect to the next
Interest Payment Date on which interest on the Subordinated Debt
Securities would otherwise be payable; and the Company shall give
such notice of any election described in clause (iii) in the next
preceding sentence in accordance with the provisions of the
Indenture relating to Unpaid Interest. A Regular Trustee shall
give prompt written notice of the Company's election to begin
such Extension Period to the holders of the Preferred Securities.
At the end of such Extension Period, the Company must pay all
interest then accrued and unpaid (together with interest thereon
at the rate of __% per annum to the extent permitted by
applicable law). During an Extension Period, interest will
continue to accrue and holders of Subordinated Debt Securities
will be required to accrue interest income for United States
federal income tax purposes. See "Certain United States Federal
Income Tax Considerations - Original Issue Discount" herein.
REGISTRATION AND TRANSFER
The Subordinated Debt Securities are to be initially registered
in the name of Wilmington Trust Company, as Institutional Trustee
of Washington Water Power Trust. The Subordinated Debt
Securities shall not be transferable, nor shall any purported
transfer be registered, except (i) to a nominee of such
Institutional Trustee, to such Institutional Trustee by such
nominee, by such Institutional Trustee to another nominee, by any
such nominee to a successor nominee or by such Institutional
Trustee or any nominee thereof to a successor Institutional
Trustee or a nominee thereof or (ii) to the holders of Trust
Securities in the event of the termination of Washington Water
Power Trust in accordance with the provisions of the Declaration.
No service charge shall be made for the registration of transfer
of exchange of Subordinated Debt Securities; provided, however,
that, after any distribution of the Subordinated Debt Securities
contemplated in clause (ii) above, the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with the exchange or
transfer.
S-20
REDEMPTION
The Subordinated Debt Securities are subject to redemption (i)
at any time on or after ________ __, 20__, in whole or in part,
at the election of the Company, at a redemption price equal to
100% of the principal amount thereof plus accrued interest, if
any (including Additional Interest, if any), to the date fixed
for redemption; provided, however, that the Subordinated Debt
Securities will not be so redeemable in part unless all interest
(including Additional Interest) accrued through the most recent
quarterly period ended on or prior to the date fixed for
redemption shall have been paid, or (ii) in whole but not in
part, at the election of the Company, on any date within 90 days
of the occurrence, and during the continuation, of a Tax Event at
a redemption price equal to 100% of the principal amount thereof
plus accrued interest, if any (including Additional Interest, if
any) to the date fixed for redemption.
DISTRIBUTION OF SUBORDINATED DEBT SECURITIES
Upon the occurrence of a Tax Event, at any time, the Company
has the right to terminate the Trust, and, in such event,
Subordinated Debt Securities will be distributed to the holders
of the Preferred Securities in liquidation of the Trust after
satisfaction of liabilities to creditors of the Trust as provided
by applicable law. If distributed to holders of Preferred
Securities in liquidation, the Subordinated Debt Securities will
initially be issued in the form of one or more global securities
and DTC, or any successor depositary for the Preferred
Securities, will act as depositary for the Subordinated Debt
Securities. It is anticipated that the depositary arrangements
for the Subordinated Debt Securities would be substantially
identical to those in effect for the Preferred Securities. If
the Subordinated Debt Securities are distributed to the holders
of the Preferred Securities upon termination of the Trust in
accordance with the Declaration, the Company will use all
reasonable efforts to cause the Subordinated Debt Securities to
be listed on the NYSE or on such other securities exchanges as
the Preferred Securities are then listed. There can be no
assurance as to the market price of any Subordinated Debt
Securities that may be distributed to the holders of Preferred
Securities.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following summary describes the principal United States
federal income tax consequences relevant to the purchase,
ownership and disposition of the Preferred Securities as of the
date hereof and represents the opinion of Reid & Priest LLP,
counsel to the Company, insofar as it relates to matters of law
or legal conclusions. Except where noted, it deals only with
Preferred Securities held as capital assets and does not deal
with special situations, such as those of dealers in securities
or currencies, financial institutions, life insurance companies,
tax-exempt organizations, persons holding Preferred Securities as
part of a hedging or conversion transaction or a straddle, United
States Holders (as defined herein) whose "functional currency" is
not the United States dollar, or persons who are not United
States Holders. In addition, this discussion does not address the
tax consequences to persons who purchase Preferred Securities
other than pursuant to their initial issuance and distribution.
Furthermore, the discussion below is based upon the provisions of
the Internal Revenue Code of 1986, as amended, and regulations,
rulings and judicial decisions thereunder as of the date hereof,
and such authorities may be repealed, revoked or modified at any
time, possibly retroactively, so as to result in United States
federal income tax consequences different from those discussed
below. These authorities are subject to various interpretations
and it is therefore possible that the United States federal
income tax treatment of the Preferred Securities may differ from
the treatment described below.
PROSPECTIVE PURCHASERS OF PREFERRED SECURITIES, INCLUDING
PERSONS WHO ARE NOT UNITED STATES HOLDERS AND PERSONS WHO
PURCHASE PREFERRED SECURITIES IN THE SECONDARY MARKET, ARE
ADVISED TO CONSULT WITH THEIR TAX ADVISORS AS TO THE UNITED
STATES FEDERAL INCOME TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP
AND DISPOSITION OF PREFERRED SECURITIES IN LIGHT OF THEIR
PARTICULAR CIRCUMSTANCES, AS WELL AS THE EFFECT OF ANY STATE,
LOCAL OR OTHER TAX LAWS.
UNITED STATES HOLDERS
As used herein, a "United States Holder" means a Preferred
Security holder that is a citizen or a resident of the United
States, a corporation, partnership or other entity created or
organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust the income
of which is subject to United States federal income taxation
regardless of its source.
S-21
CLASSIFICATION OF THE TRUST
Reid & Priest LLP, counsel to the Company and the Trust, is of
the opinion that, under current law and assuming full compliance
with the terms of the Indenture and the instruments establishing
the Trust (and certain other documents), the Trust will be
classified as a "grantor trust" for United States federal income
tax purposes and will not be classified as an association taxable
as a corporation. Each United States Holder will be treated as
owning an undivided beneficial interest in the Subordinated Debt
Securities. Investors should be aware that the opinion of Reid &
Priest LLP is not binding on the Internal Revenue Services (the
"IRS") or the courts.
CLASSIFICATION OF THE SUBORDINATED DEBT SECURITIES
Based on the advice of its counsel, the Company believes and
intends to take the position that the Subordinated Debt
Securities will constitute indebtedness for United States federal
income tax purposes. No assurance can be given that such position
will not be challenged by the IRS, or that any such challenge
will not be successful. By purchasing and accepting Preferred
Securities, each holder thereof covenants to treat the
Subordinated Debt Securities as indebtedness and the Preferred
Securities as evidence of an indirect beneficial ownership in the
Subordinated Debt Securities. The remainder of this discussion,
except as is expressly indicated to the contrary, assumes that
the Subordinated Debt Securities will be classified as
indebtedness of the Company for United States federal income tax
purposes.
POSSIBLE TAX LAW CHANGES
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the
"Bill"), the revenue portion of President Clinton's budget
proposal, was released. The Bill would, among other things,
generally treat as equity an instrument, issued by a corporation,
that has a maximum term of more than 20 years and that is not
shown as indebtedness on the separate balance sheet of the issuer
or, where the instrument is issued to a related party (other than
a corporation), where the holder or some other related party
issues a related instrument that is not shown as indebtedness on
the issuer's consolidated balance sheet. The above-described
provision was proposed to be effective generally for instruments
issued on or after December 7, 1995. If such provision were to
apply to the Subordinated Debt Securities, the Company would be
unable to deduct interest on the Subordinated Debt Securities.
However, on March 29, 1996, the Chairmen of the Senate Finance
and House Ways and Means Committees issued a joint statement to
the effect that it was their intention that the effective date of
the President's legislative proposals, if adopted, will be no
earlier than the date of appropriate Congressional action. There
can be no assurance, however, that current or future legislative
proposals or final legislation will not affect the ability of the
Company to deduct interest on the Subordinated Debt Securities.
If legislation were enacted limiting, in whole or in part, the
deductibility by the Company of interest on the Subordinated Debt
Securities for United States federal income tax purposes, such
enactment could give rise to a Tax Event. A Tax Event would
permit the Company to cause a redemption of the Preferred
Securities as described more fully under "Description of the
Preferred Securities - Tax Event Redemption or Distribution"
herein.
PAYMENTS OF INTEREST
Except as set forth below, stated interest on a Subordinated
Debt Security will generally be taxable to a United States Holder
as ordinary income at the time it is paid or accrued in
accordance with the United States Holder's method of accounting
for tax purposes.
ORIGINAL ISSUE DISCOUNT
Under income tax regulations that recently became effective,
the Company believes that the Subordinated Debt Securities will
not be treated as issued with OID. It should be noted that these
regulations have not yet been addressed in any rulings or other
interpretations by the IRS. Accordingly, it is possible that the
IRS could take a position contrary to the interpretation
described herein.
Under the Indenture, the Company has the right to defer the
payment of interest on the Subordinated Debt Securities at any
time or from time to time for a period not exceeding 20
consecutive quarters with respect to each Extension Period
provided, however, that no Extension Period may extend beyond the
Stated Maturity (as defined in the Indenture) of the Subordinated
Debt Securities. Should the Company exercise this right to defer
payments of interest, the Subordinated Debt Securities would at
that time be treated as issued with OID and all the stated
S-22
interest payments on the Subordinated Debt Securities would
thereafter be treated as OID for so long as they remained
outstanding. As a result, all United States Holders would, in
effect, be required to accrue interest income even if such United
States Holders are on a cash method of accounting. Consequently,
in the event that the payment of interest is deferred, a United
States Holder could be required to include OID in income on an
economic accrual basis, notwithstanding that the Company will not
make any interest payments during such period on the Subordinated
Debt Securities.
RECEIPT OF SUBORDINATED DEBT SECURITIES OR CASH UPON LIQUIDATION
OF THE TRUST
Upon the occurrence of a Tax Event the Company has the right to
cause Subordinated Debt Securities to be distributed to holders
of Preferred Securities in exchange for the Preferred Securities
and in liquidation of the Trust. Under current law, for United
States federal income tax purposes, if the Trust is treated as a
"grantor trust" at the time of distribution, such distribution
would be treated as a non-taxable event to each United States
Holder, and each United States Holder would receive an aggregate
tax basis in the Subordinated Debt Securities equal to such
holder's aggregate tax basis in its Preferred Securities. A
United States Holder's holding period for the Subordinated Debt
Securities received in liquidation of the Trust would include the
period during which such holder held the Preferred Securities.
Under certain circumstances, as described herein under the
caption "Description of Preferred Securities," the Subordinated
Debt Securities may be redeemed for cash and the proceeds of such
redemption distributed to holders of Preferred Securities in
redemption of the Preferred Securities. Under current law, such a
redemption would, for United States federal income tax purposes,
constitute a taxable disposition of the Preferred Securities, and
a United States Holder would recognize gain or loss as if such
holder had sold such redeemed Preferred Securities. See "- Sale,
Exchange and Redemption of the Preferred Securities" below.
SALE, EXCHANGE AND REDEMPTION OF THE PREFERRED SECURITIES
Upon the sale, exchange or redemption of Preferred Securities,
a United States Holder will recognize gain or loss equal to the
difference between the amount realized upon the sale, exchange or
redemption and such holder's adjusted tax basis in the Preferred
Securities. A United States Holder's adjusted tax basis will, in
general, be the issue price of the Preferred Securities,
increased by any interest income or OID previously included in
income by the United States Holder and reduced by any
distributions on the Preferred Securities. Such gain or loss
generally will be capital gain or loss and will be long-term
capital gain or loss if at the time of sale, exchange or
redemption, the Preferred Securities have been held for more than
one year. Under current law, net capital gains of individuals
are, under certain circumstances, taxed at lower rates than items
of ordinary income. The deductibility of capital losses is
subject to limitations.
INFORMATION REPORTING AND BACKUP WITHHOLDING
Subject to the qualification discussed below, income on the
Preferred Securities will be reported to holders on Form 1099,
which should be mailed to such holders by January 31 following
each calendar year.
So long as the Preferred Securities will be held in book-entry
only form, the Trust will be obligated to report annually to Cede
& Co., as holder of record of the Preferred Securities, the
interest income or OID related to the Subordinated Debt
Securities that accrued during the year. The Trust currently
intends to report such information on Form 1099 prior to January
31 following each calendar year. The Underwriters have indicated
to the Trust that, to the extent that they hold Preferred
Securities as nominees for beneficial holders, they currently
expect to report the interest income or OID that accrued during
the calendar year on such Preferred Securities to such beneficial
holders on Form 1099 by January 31 following each calendar year.
Under current law, holders of Preferred Securities who hold as
nominees for beneficial holders will not have any obligation to
report information regarding the beneficial holders to the Trust.
The Trust, moreover, will not have any obligation to report to
beneficial holders who are not also record holders. Thus,
beneficial holders of Preferred Securities who hold their
Preferred Securities through underwriters will receive Forms 1099
reflecting the income on their Preferred Securities from such
underwriters rather than from the Trust.
Payments made in respect of, and proceeds from the sale of,
Preferred Securities (or Subordinated Debt Securities distributed
to holders of Preferred Securities) may be subject to "backup"
S-23
withholding tax of 31% if the holder fails to comply with certain
identification requirements, if such holder has previously failed
to report in full dividend and interest income, or if the holder
does not otherwise establish its entitlement to an exemption.
Any withheld amount will be allowed as a credit against the
holder's United States federal income tax liability; provided,
however, that certain required information is provided to the
IRS.
These information reporting and "backup" withholding tax rules
are subject to temporary Treasury Regulations. Accordingly, the
application of such rules to the Preferred Securities could be
changed.
UNDERWRITING
Subject to the terms and conditions set forth in an
underwriting agreement (the "Underwriting Agreement"), Washington
Water Power Capital has agreed to sell to each of the
Underwriters named below, and each of the Underwriters, for whom
Merrill Lynch, Pierce, Fenner & Smith Incorporated is acting as
representative (the "Representative"), has severally agreed to
purchase the number of Preferred Securities set forth opposite
its name below. In the Underwriting Agreement, the several
Underwriters have agreed, subject to the terms and conditions set
forth therein, to purchase all the Preferred Securities offered
hereby if any of the Preferred Securities are purchased. In the
event of default by an Underwriter, the Underwriting Agreement
provides that, in certain circumstances, the purchase commitments
of the non-defaulting Underwriters may be increased or the
Underwriting Agreement may be terminated.
UNDERWRITERS NUMBER OF PREFERRED SECURITIES
----------------------------- ------------------------------
Merrill Lynch, Pierce, Fenner &
Smith Incorporated . . . . . . . .
___________
Total . . . . . . . . . . =========
The Underwriters propose to offer the Preferred Securities, in
part, directly to the public at the initial public offering price
set forth on the cover page of this Prospectus Supplement, and,
in part, to certain securities dealers at such price less a
concession of $____ per Preferred Security. The Underwriters may
allow, and such dealers may reallow, a concession not in excess
of $____ per Preferred Security to certain brokers and dealers.
After the Preferred Securities are released for sale to the
public, the offering price and other selling terms may from time
to time be varied by the Representative.
In view of the fact that the proceeds of the sale of the
Preferred Securities will ultimately be used to purchase the
Subordinated Debt Securities of the Company, the Underwriting
Agreement provides that the Company will pay as Underwriters'
Compensation to the Underwriters arranging the investment therein
of such proceeds, an amount in immediately available funds of
$.____ per Preferred Security (or $_____________ in the
aggregate) for the accounts of the several Underwriters;
provided, however, that such compensation for sales of 10,000 or
more Preferred Securities to any single purchaser will be $.____
per Preferred Security. Therefore, to the extent of such sales,
the actual amount of Underwriters' Compensation will be less than
the aggregate amount specified in the preceding sentence.
During a period of 30 days from the date of this Prospectus
Supplement, neither the Trust nor the Company will, without the
prior written consent of the Underwriters, directly or
indirectly, sell, offer to sell, grant any option for sale of or
otherwise dispose of, any Preferred Securities, any security
convertible into or exchangeable into or exercisable for
Preferred Securities or Subordinated Debt Securities or any debt
securities substantially similar to the Subordinated Debt
Securities or equity securities substantially similar to the
Preferred Securities (except for the Preferred Securities and the
Subordinated Debt Securities offered hereby).
S-24
Application will be made to list the Preferred Securities on
the NYSE. If approved, trading of the Preferred Securities on the
NYSE is expected to commence within a 30-day period after the
initial delivery of the Preferred Securities. The Representative
has advised Washington Water Power Capital that they intend to
make a market in the Preferred Securities prior to the
commencement of trading on the NYSE. The Representative will have
no obligation to make a market in the Preferred Securities,
however, and may cease market making activities, if commenced, at
any time.
Prior to this offering there has been no public market for the
Preferred Securities. In order to meet one of the requirements
for listing the Preferred Securities on the NYSE, the
Underwriters will undertake to sell lots of 100 or more Preferred
Securities to a minimum of 400 beneficial holders.
Washington Water Power Capital and the Company have agreed to
indemnify the Underwriters against, or contribute to payments
that the Underwriters may be required to make in respect of,
certain liabilities, including liabilities under the Securities
Act of 1933, as amended.
Certain of the Underwriters engage in transactions with, and,
from time to time, have performed services for, the Company and
its subsidiaries in the ordinary course of business.
S-25
PROSPECTUS
$150,000,000
THE WASHINGTON WATER POWER COMPANY
SUBORDINATED DEBT SECURITIES
_______________
WASHINGTON WATER POWER CAPITAL I
WASHINGTON WATER POWER CAPITAL II
WASHINGTON WATER POWER CAPITAL III
PREFERRED SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED BY
THE WASHINGTON WATER POWER COMPANY
_______________
The Washington Water Power Company (the "Company") a Washington
corporation, may from time to time offer its subordinated
debentures, notes or other evidence of indebtedness (the
"Subordinated Debt Securities") in one or more series and in
amounts, at prices and on terms to be determined at the time of
the offering. The Subordinated Debt Securities when issued will
be unsecured obligations of the Company. The Company's
obligations under the Subordinated Debt Securities will be
subordinate and junior in right of payment to certain other
indebtedness, as may be described in an accompanying Prospectus
Supplement (a "Prospectus Supplement") and in an aggregate amount
to be set forth as of the most recent practicable date in such
Prospectus Supplement.
Washington Water Power Capital I, Washington Water Power
Capital II and Washington Water Power Capital III (each, a
"Washington Water Power Trust"), each a statutory business trust
formed under the laws of the State of Delaware, may offer, from
time to time, preferred securities representing undivided
beneficial interests in the assets of the respective Washington
Water Power Trust ("Preferred Securities"). The payment of
periodic cash distributions ("distributions") with respect to
Preferred Securities of each of the Washington Water Power Trusts
out of moneys held by each of the Washington Water Power Trusts,
and payment on liquidation, redemption or otherwise with respect
to such Preferred Securities, will be guaranteed by the Company
to the extent described herein (each, a "Preferred Securities
Guarantee"). See "Description of the Preferred Securities
Guarantees" herein. The Company's obligations under the Preferred
Securities Guarantees are subordinate and junior in right of
payment to all other liabilities of the Company. Subordinated
Debt Securities may be issued and sold from time to time in one
or more series to a Washington Water Power Trust or a trustee of
such Washington Water Power Trust in connection with the
investment of the proceeds from the offering of Preferred
Securities and Common Securities (as defined herein, together the
"Trust Securities") of such Washington Water Power Trust. The
Subordinated Debt Securities purchased by a Washington Water
Power Trust may subsequently be distributed pro rata to holders
of Preferred Securities and Common Securities in connection with
the dissolution of such Washington Water Power Trust upon the
occurrence of certain events as may be described in an
accompanying Prospectus Supplement. The Subordinated Debt
Securities and the Preferred Securities and the related Preferred
Securities Guarantees are sometimes collectively referred to
hereafter as the "Offered Securities."
Specific terms of the Subordinated Debt Securities of any
series or the Preferred Securities of any Washington Water Power
Trust, the terms of which will be correlative the terms of the
Subordinated Debt Securities held by any Washington Water Power
Trust, in respect of which this prospectus (the "Prospectus") is
being delivered, will be set forth in a Prospectus Supplement
with respect to such securities which will describe, without
limitation and where applicable, the following: (i) in the case
of Subordinated Debt Securities, the specific designation,
aggregate principal amount, denomination, maturity, premium, if
any, any exchange, conversion, redemption or sinking fund
provisions, if any, interest rate (which may be fixed or
variable), if any, the time and method of calculating interest
payments, if any, dates on which premium, if any, and interest,
if any, will be payable, the right of the Company, if any, to
defer payment of interest on the Subordinated Debt Securities and
the maximum length of such deferral period, the initial public
offering price, subordination terms, and any listing on a
securities exchange and other specific terms of the offering; and
(ii) in the case of Preferred Securities, the designation, number
of securities, liquidation amount per security, initial public
offering price, any listing on a securities exchange,
distribution rate (or method of calculation thereof), dates on
which distributions shall be payable and dates from which
distributions shall accrue, any voting rights, terms for any
conversion or exchange into other securities, any redemption,
exchange or sinking fund provisions, any other rights,
preferences, privileges, limitations or restrictions relating to
the Preferred Securities and the terms upon which the proceeds of
the sale of the Preferred Securities shall be used to purchase a
specific series of Subordinated Debt Securities of the Company.
The Offered Securities may be offered in amounts, at prices and
on terms to be determined at the time of offering; provided,
however, that the aggregate initial public offering price of all
Offered Securities shall not exceed $150,000,000. The Prospectus
Supplement relating to any series of Offered Securities will
contain information concerning certain United States federal
income tax considerations, if applicable to the Offered
Securities.
The Company and/or each of the Washington Water Power Trusts
may sell the Offered Securities directly, through agents
designated from time to time, or through underwriters or dealers.
See "Plan of Distribution" below. If any agents of the Company
and/or any Washington Water Power Trust or any underwriters or
dealers are involved in the sale of the Offered Securities, the
names of such agents, underwriters or dealers and any applicable
commissions and discounts will be set forth in any related
Prospectus Supplement.
This Prospectus may not be used to consummate sales of
securities unless accompanied by a Prospectus Supplement.
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is ________, 199_
2
AVAILABLE INFORMATION
This Prospectus constitutes a part of a combined Registration
Statement on Form S-3 (together with all amendments and exhibits
thereto, the "Registration Statement") filed by the Company and
the Washington Water Power Trusts with the Securities and
Exchange Commission (the "SEC" or the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Offered Securities. This Prospectus does not
contain all of the information set forth in such Registration
Statement, certain parts of which are omitted in accordance with
the rules and regulations of the SEC, although it does include a
summary of the material terms of the Indenture and the
Declarations (as defined herein). Reference is made to such
Registration Statement and to the exhibits relating thereto for
further information with respect to the Company, the Washington
Water Power Trusts and the Offered Securities. Any statements
contained herein concerning the provisions of any document filed
as an exhibit to the Registration Statement or otherwise filed
with the SEC or incorporated by reference herein are not
necessarily complete, and, in each instance, reference is made to
the copy of such document so filed for a more complete
description of the matter involved. Each such statement is
qualified in its entirety by such reference.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and in accordance therewith files reports, proxy statements and
other information with the SEC. Information, as of particular
dates, concerning the Company's directors and officers, their
remuneration, the principal holders of the Company's securities,
and any material interest of such persons in transactions with
the Company is disclosed in proxy statements distributed to
shareholders of the Company and filed with the SEC. These
reports, proxy statements and other information can be inspected
and copied at the public reference facilities of the SEC at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549;
7 World Trade Center, 13th Floor, New York, New York 10048; and
500 West Madison Street, 14th Floor, Chicago, Illinois 60601; and
copies of such material can be obtained from the Public Reference
Section of the SEC, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The SEC maintains a
Web site that contains reports, proxy and information statements
and other information regarding reporting companies under the
Exchange Act, including the Company, at http://www.sec.gov. The
Company's Common Stock is listed on the New York and Pacific
Stock Exchanges, and reports, proxy statements and other
information concerning the Company can be inspected at the
offices of such exchanges located at the New York Stock Exchange,
20 Broad Street, New York, New York 10005, and the Pacific Stock
Exchange, 301 Pine Street, San Francisco, California 94104,
respectively.
No separate financial statements of any of the Washington Water
Power Trusts have been included herein. The Company does not
consider that such financial statements would be material to
holders of the Preferred Securities because (i) all of the voting
securities of each of the Washington Water Power Trusts will be
owned, directly or indirectly, by the Company, a reporting
company under the Exchange Act, (ii) each of the Washington Water
Power Trusts has no independent operations but exists for the
sole purpose of issuing securities representing undivided
beneficial interests in the assets of such Washington Water Power
Trust and investing the proceeds thereof in Subordinated Debt
Securities issued by the Company and (iii) the Company's
obligations described herein and in any accompanying Prospectus
Supplement to provide certain indemnities in respect of and be
responsible for certain costs, expenses, debts and liabilities of
each of Washington Water Power Capital I, II and III under the
Indenture (as defined herein), pursuant to the Declarations of
each Trust and under the Expense Agreements (as defined herein)
relating to each Trust, the guarantee issued with respect to
Preferred Securities issued by that Trust, the Subordinated Debt
Securities purchased by that Trust and the related Indenture,
taken together, effectively constitute a full and unconditional
guarantee, on a subordinated basis, of payments due on the
Preferred Securities. See "Description of the Subordinated Debt
Securities" and "Description of the Preferred Securities
Guarantees" herein.
The Washington Water Power Trusts are not currently subject to
the information reporting requirements of the Exchange Act. The
Washington Water Power Trusts will become subject to such
requirements upon the effectiveness of the Registration
Statement, although they intend to seek and expect to receive
exemptions therefrom.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates herein by reference, and as of
any time hereafter prior to the termination of the offering made
by this Prospectus the Company shall be deemed to have
incorporated herein by reference, (1) the Company's latest Annual
Report on Form 10-K (the "Latest Annual Report") filed by the
Company with the SEC pursuant to the Exchange Act, and (2) all
other reports and documents filed by the Company with the SEC
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the filing of the Latest Annual Report, and all of
3
such documents shall be deemed to be a part hereof from the
respective dates of filing thereof. The documents incorporated
herein by reference are sometimes hereinafter called the
"Incorporated Documents." Any statement contained in an
Incorporated Document shall be deemed to be modified or
superseded for all purposes to the extent that a statement in
this Prospectus or in any subsequently filed Incorporated
Document modifies or replaces such statement. The Incorporated
Documents incorporated herein by reference as of the date of this
Prospectus are the Annual Report on Form 10-K for the year ended
December 31, 1995, and the Quarterly Reports on Form 10-Q for the
quarters ended March 31, June 30 and September 30, 1996.
THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH
PERSON TO WHOM A COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, ON
THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR
ALL OF THE INCORPORATED DOCUMENTS, OTHER THAN EXHIBITS THERETO
(UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE
INTO SUCH INCORPORATED DOCUMENTS). REQUESTS FOR SUCH COPIES
SHOULD BE DIRECTED TO LAWRENCE J. PIERCE, VICE PRESIDENT AND
TREASURER, BY MAIL AT THE WASHINGTON WATER POWER COMPANY, POST
OFFICE BOX 3727, SPOKANE, WASHINGTON 99220, OR BY TELEPHONE AT
509-489-0500.
THE TRUSTS
Each of Washington Water Power Capital I and Washington Water
Power Capital II and Washington Water Power Capital III is a
statutory business trust formed under Delaware law pursuant to
(i) a separate declaration of trust (each a "Declaration")
executed by the Company, as sponsor for such trust and the
Washington Water Power Trustees (as defined herein) for such
trust and (ii) the filing of a certificate of trust with the
Delaware Secretary of State on November 4, 1996. Each Washington
Water Power Trust exists for the exclusive purposes of (i)
issuing the Preferred Securities and common securities
representing undivided beneficial interests in the assets of such
Trust (the "Common Securities" and, together with the Preferred
Securities, the "Trust Securities"), (ii) investing the gross
proceeds of the sale of the Trust Securities in the Subordinated
Debt Securities and (iii) engaging in only those other activities
necessary or incidental thereto. All of the Common Securities
will be directly or indirectly owned by the Company. The Common
Securities will rank pari passu, and payments will be made
thereon pro rata with the Preferred Securities except that upon
an event of default under the Declaration, the rights of the
holders of the Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and
otherwise will be subordinated to the rights of the holders of
the Preferred Securities. The Company will, directly or
indirectly, acquire Common Securities in an aggregate liquidation
amount equal to 3 percent of the total capital of each Washington
Water Power Trust. Each Washington Water Power Trust has a term
of approximately 45 years, but may terminate earlier as provided
in the related Declaration. Each Washington Water Power Trust's
business and affairs will be conducted by the trustees (the
"Washington Water Power Trustees") appointed by the Company as
the direct or indirect holder of all of the Common Securities.
The holder of the Common Securities will be entitled to appoint,
remove or replace any of, or increase or reduce the number of,
the Washington Water Power Trustees of a Washington Water Power
Trust. The duties and obligations of the Washington Water Power
Trustees shall be governed by the Declaration of such Washington
Water Power Trust. A majority of the Washington Water Power
Trustees (the "Regular Trustees") of each Washington Water Power
Trust will be persons who are employees or officers of or
affiliated with the Company. One Washington Water Power Trustee
of each Washington Water Power Trust will be a financial
institution which will be unaffiliated with the Company and which
shall act as property trustee and as indenture trustee for
purposes of the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), pursuant to the terms set forth in a
Prospectus Supplement (the "Institutional Trustee"). In addition,
unless the Institutional Trustee maintains a principal place of
business in the State of Delaware, and otherwise meets the
requirements of applicable law, one Washington Water Power
Trustee of each Washington Water Power Trust will have its
principal place of business or reside in the State of Delaware
(the "Delaware Trustee"). The Company will pay all fees and
expenses related to the Washington Water Power Trusts and the
offering of Trust Securities, the payment of which will be
guaranteed by the Company. The office of the Delaware Trustee for
each Washington Water Power Trust in the State of Delaware is
Wilmington Trust Company, Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890. The principal place of
business of each Washington Water Power Trust shall be c/o The
Washington Water Power Company, 1411 East Mission Avenue,
Spokane, Washington 99202. The telephone number is 509-489-0500.
4
USE OF PROCEEDS
Each Washington Water Power Trust will use all proceeds
received from the sale of the Preferred Securities to purchase
Subordinated Debt Securities from the Company. The Company
intends to use the net proceeds from the issuance and sale of the
Subordinated Debt Securities for any or all of the following
purposes: (i) to fund a portion of the Company's construction,
facility improvement and maintenance programs, (ii) to retire or
exchange one or more outstanding series of its preferred stock,
bonds or notes, (iii) to reimburse the Company's treasury for
funds previously expended for these purposes, and (iv) for other
general corporate purposes.
DESCRIPTION OF THE SUBORDINATED DEBT SECURITIES
Subordinated Debt Securities may be issued from time to time in
one or more series under an Indenture, dated as of _____________
1, 199_ (the "Original Indenture"), between the Company and
Wilmington Trust Company, as Trustee (the "Debt Trustee"), (the
Original Indenture, as amended and supplemented from time to
time, is hereinafter referred to as the "Indenture"). The terms
of the Subordinated Debt Securities will include those stated in
the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act. The following summary does not
purport to be complete and is subject in all respects to the
provisions of, and is qualified in its entirety by reference to,
the Indenture, which is filed as an exhibit to the Registration
Statement of which this Prospectus forms a part, and the Trust
Indenture Act. Capitalized terms used under this heading which
are not otherwise defined in this Prospectus, shall have the
meanings ascribed thereto in the Indenture. Whenever particular
provisions or defined terms in the Indenture are referred to
herein, such provisions or defined terms are incorporated by
reference herein.
GENERAL
Each series of Subordinated Debt Securities will rank pari
passu with all other series of Subordinated Debt Securities, will
be unsecured and subordinate and junior in right of payment to
the extent and in the manner set forth in the Indenture to all
Senior Indebtedness (as defined herein) of the Company. See "-
Subordination" herein. Except as otherwise provided in the
applicable Prospectus Supplement, the Indenture does not limit
the incurrence or issuance of other secured or unsecured debt of
the Company, whether under the Indenture, any other indenture
that the Company may enter into in the future or otherwise. See
"- Subordination" herein and the Prospectus Supplement relating
to any offering of Preferred Securities or Subordinated Debt
Securities.
Concurrently with the issuance of each Washington Water Power
Trust's Preferred Securities, such Washington Water Power Trust
will invest the proceeds from the sale thereof and the
consideration paid by the Company for the Common Securities of
such Washington Water Power Trust in a series of Subordinated
Debt Securities issued by the Company to such Washington Water
Power Trust. Each series of Subordinated Debt 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, will be in the principal amount
equal to the aggregate stated liquidation amount of the related
Preferred Securities plus the Company's concurrent investment in
the Common Securities and will rank pari passu with all other
series of Subordinated Debt Securities. Such Subordinated Debt
Securities will be unsecured and subordinate and junior in right
of payment to the extent and in the manner set forth in the
Indenture to all Senior Indebtedness of the Company. See "-
Subordination" herein and the Prospectus Supplement relating to
any offering of related Preferred Securities.
The applicable Prospectus Supplement or Prospectus Supplements
will describe the following terms of the Subordinated Debt
Securities: (1) the title of the Subordinated Debt Securities;
(2) any limit upon the aggregate principal amount of the
Subordinated Debt Securities; (3) the date or dates on which the
principal of the Subordinated Debt Securities is payable or the
method of determination thereof and the right, if any, to extend
such date or dates; (4) the rate or rates, if any, or the method
by which such rate or rates shall be determined, at which the
Subordinated Debt Securities shall bear interest, if any, the
date or dates from which any such interest will accrue, the
Interest Payment Dates on which any such interest shall be
payable, the right, if any, of the Company to defer or extend an
Interest Payment Date, and the Regular Record Date for any
interest payable on any Interest Payment Date and the person or
persons to whom interest on such Subordinated Debt Securities
shall be payable on any Interest Payment Date, if other than the
persons in whose names such Subordinated Debt Securities are
registered at the close of business on the Regular Record Date
for such interest; (5) the place or places where, subject to the
terms of the Indenture as described below under "- Payment and
5
Paying Agents," the principal of and premium, if any, and
interest on the Subordinated Debt Securities will be payable and
where, subject to the terms of the Indenture as described below
under "- Registration and Transfer," the Subordinated Debt
Securities may be presented for registration of transfer or
exchange and the place or places where notices and demands to or
upon the Company in respect of the Subordinated Debt Securities
and the Indenture may be served; the Security Registrar and
Paying Agents for such Subordinated Debt Securities; and, if such
is the case, that the principal of such Subordinated Debt
Securities shall be payable without presentation or surrender
thereof; (6) any period or periods within, or date or dates on,
which, the price or prices at which and the terms and conditions
upon which Subordinated Debt Securities may be redeemed, in whole
or in part, at the option of the Company; (7) the obligation or
obligations, if any, of the Company to redeem or purchase any of
the Subordinated Debt Securities pursuant to any sinking fund or
other mandatory redemption provisions or at the option of the
holder thereof, and the period or periods within which, the price
or prices at which, and the terms and conditions upon which the
Subordinated Debt Securities shall be redeemed or purchased, in
whole or in part, pursuant to such obligation, and applicable
exceptions to the requirements of a notice of redemption in the
case of mandatory redemption or redemption at the option of the
holder; (8) the denominations in which any Subordinated Debt
Securities shall be issuable if other than denominations of
$1,000 and any integral multiple thereof (in the case of
Subordinated Debt 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
denominations in which any Subordinated Debt Securities shall be
issuable if other than denominations of $25 and any integral
multiple thereof); (9) if the Subordinated Debt Securities are to
be issued in global form, the identity of the depositary thereof;
and (10) any other terms of the Subordinated Debt Securities not
inconsistent with the provisions of the Indenture.
PAYMENT AND PAYING AGENTS
Except as may be provided in the applicable Prospectus
Supplement, interest, if any, on each Subordinated Debt Security
payable on each Interest Payment Date will be paid to the person
in whose name such Subordinated Debt Security is registered as of
the close of business on the regular record date relating to such
Interest Payment Date; provided, however, that interest payable
at maturity (whether at stated maturity, upon redemption or
otherwise, hereinafter "Maturity") will be paid to the person to
whom principal is paid. However, if there has been a default in
the payment of interest on any Subordinated Debt Security, such
defaulted interest may be payable to the holder of such
Subordinated Debt Security as of the close of business on a date
selected by the Debt Trustee which is not more than 30 days and
not less than 10 days prior to the date proposed by the Company
for payment of such defaulted interest or in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which such Subordinated Debt Security may be listed,
if the Debt Trustee deems such manner of payment practicable.
Unless otherwise specified in the applicable Prospectus
Supplement, the principal of and premium, if any, and interest,
if any, on the Subordinated Debt Securities at Maturity will be
payable upon presentation of the Subordinated Debt Securities at
the corporate trust office of Wilmington Trust Company, in
Wilmington, Delaware, as Paying Agent for the Company. The
Company may change the Place of Payment on the Subordinated Debt
Securities, may appoint one or more additional Paying Agents
(including the Company) and may remove any Paying Agent, all at
its discretion.
REGISTRATION AND TRANSFER
Unless otherwise specified in the applicable Prospectus
Supplement, the transfer of Subordinated Debt Securities may be
registered, and Subordinated Debt Securities may be exchanged for
other Subordinated Debt Securities of the same series and
tranche, of authorized denominations and of like tenor and
aggregate principal amount, at the corporate trust office of
Wilmington Trust Company, in Wilmington, Delaware, as Security
Registrar for the Subordinated Debt Securities. The Company may
change the place for registration of transfer and exchange of the
Subordinated Debt Securities and may designate one or more
additional places for such registration and exchange, all at its
discretion. Except as otherwise provided in the applicable
Prospectus Supplement, no service charge will be made for any
transfer or exchange of the Subordinated Debt 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 the Subordinated
Debt Securities. The Company will not be required to execute or
to provide for the registration of transfer of or the exchange of
(a) any Subordinated Debt Security during a period of 15 days
prior to giving any notice of redemption or (b) any Subordinated
Debt Security selected for redemption in whole or in part, except
the unredeemed portion of any Subordinated Debt Security being
redeemed in part.
6
REDEMPTION
Any terms for the optional or mandatory redemption of
Subordinated Debt Securities will be set forth in the applicable
Prospectus Supplement. Except as shall otherwise be provided in
the applicable Prospectus Supplement with respect to Subordinated
Debt Securities redeemable at the option of the holder,
Subordinated Debt Securities will be redeemable only upon notice
by mail not less than 30 nor more than 60 days prior to the date
fixed for redemption, and, if less than all the Subordinated Debt
Securities of a series, or any tranche thereof, are to be
redeemed, the particular Subordinated Debt Securities to be
redeemed will be selected by such method as shall be provided for
such series or Tranche, or in the absence of any such provision,
by such method of random selection as the Security Registrar
deems fair and appropriate.
Any notice of redemption at the option of the Company may state
that such redemption will be conditional upon receipt by the
Paying Agent or Agents, on or prior to the dated fixed for such
redemption, of money sufficient to pay the principal of and
premium, if any, and interest, if any, on such Subordinated Debt
Securities and that if such money has not been so received, such
notice will be of no force or effect and the Company will not be
required to redeem such Subordinated Debt Securities.
MODIFICATION OF INDENTURE
Without the consent of any holders of Subordinated Debt
Securities, the Company and the Trustee may enter into one or
more supplemental indentures 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 in the Indenture and in the
Subordinated Debt Securities; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of all holders of Subordinated Debt
Securities or for the benefit of the holders of, or to remain
in effect only so long as there shall be outstanding,
Subordinated Debt Securities of one or more specified series,
or one or more tranches thereof, or to surrender any right or
power conferred upon the Company by the Indenture; or
(c) to change or eliminate any provision of the Indenture
or to add any new provision to the Indenture, provided that if
such change, elimination or addition adversely affects the
interests of the holders of the Subordinated Debt Securities of
any series or tranche in any material respect, such change,
elimination or addition will become effective with respect to
such series or tranche only when no Subordinated Debt Security
of such series or tranche remains outstanding; or
(d) to provide collateral security for the Subordinated
Debt Securities; or
(e) to establish the form or terms of the Subordinated Debt
Securities of any series or tranche as permitted by the
Indenture; or
(f) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto representing
interest, if any, thereon and for the procedures for the
registration, exchange and replacement thereof and for the
giving of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all other
matters incidental thereto; or
(g) to evidence and provide for the acceptance of
appointment by a successor trustee with respect to the
Subordinated Debt Securities of one or more series; or
(h) to provide for the procedures required to permit the
utilization of a non-certificated system of registration for
all, or any series or tranche of, the Subordinated Debt
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 Subordinated Debt Securities, or any tranche thereof,
will be payable, (2) all or any series of Subordinated Debt
Securities, or any tranche thereof, may be surrendered for
registration of transfer, (3) all or any series of Subordinated
Debt 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 Subordinated Debt Securities,
or any tranche thereof, and the Indenture may be served; or
7
(j) to cure any ambiguity, to correct or supplement any
provision therein which may be defective or inconsistent with
any other provision therein, or to make any other changes to
the provisions thereof or to add other provisions with respect
to matters and questions arising under the Indenture, so long
as such other changes or additions do not adversely affect the
interests of the holders of Subordinated Debt Securities of any
series or tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act is amended after the date of the Original Indenture
in such a way as to require changes to the Indenture or the
incorporation therein of additional provisions or so as to permit
changes to, or the elimination of, provisions which, at the date
of the Original Indenture or at any time thereafter, were
required by the Trust Indenture Act to be contained in the
Indenture, the Indenture will be deemed to have been amended so
as to conform to such amendment or to effect such changes or
elimination, and the Company and the Debt Trustee may, without
the consent of any holders of Subordinated Debt Securities, enter
into one or more supplemental indentures to evidence or effect
such amendment.
Except as provided above, the consent of the holders of a
majority in aggregate principal amount of the Subordinated Debt
Securities of all series then outstanding, considered as one
class, is required for the purpose of adding any provisions to,
or changing in any manner, or eliminating any of the provisions
of, the Indenture pursuant to one or more supplemental
indentures; provided, however, that if less than all of the
series of Subordinated Debt Securities outstanding are directly
affected by a proposed supplemental indenture, then the consent
only of the holders of a majority in aggregate principal amount
of outstanding Subordinated Debt Securities of all series so
directly affected, considered as one class, will be required; and
provided, further, that if the Subordinated Debt Securities of
any series have been issued in more than one tranche and if the
proposed supplemental indenture directly affects the rights of
the holders of one or more, but less than all, such tranches,
then the consent only of the holders of a majority in aggregate
principal amount of the outstanding Subordinated Debt Securities
of all tranches so directly affected, considered as one class,
will be required; and provided, further, that no such amendment
or modification may (a) change the Stated Maturity of the
principal of, or any installment of principal of or interest on,
any Subordinated Debt Security other than pursuant to the terms
thereof, or reduce the principal amount thereof or the rate of
interest thereon (or the amount of any installment of interest
thereon) or change the method of calculating such rate or reduce
any premium payable upon the redemption thereof, or reduce the
amount of the principal of any Discount Security that would be
due and payable upon a declaration of acceleration of Maturity or
change the coin or currency (or other property) in which any
Subordinated Debt Security or any premium or the interest thereon
is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
of any Subordinated Debt Security (or, in the case of redemption,
on or after the redemption date) without, in any such case, the
consent of the holder of such Subordinated Debt Security,
(b) reduce the percentage in principal amount of the outstanding
Subordinated Debt Securities of any series, or any tranche
thereof, the consent of the holders of which is required for any
such supplemental indenture, or the consent of the holders of
which is required for any waiver of compliance with any provision
of the Indenture or of any default thereunder and its
consequences, or reduce the requirements for quorum or voting,
without, in any such case, the consent of the holder of each
outstanding Subordinated Debt Security of such series or tranche,
or (c) modify certain of the provisions of the Indenture relating
to supplemental indentures, waivers of certain covenants and
waivers of past defaults with respect to the Subordinated Debt
Securities of any series, or any tranche thereof, without the
consent of the holder of each outstanding Subordinated Debt
Security of such series or tranche.
A supplemental indenture which changes or eliminates any
covenant or other provision of the Indenture which has expressly
been included solely for the benefit of the holders of, or which
is to remain in effect only so long as there shall be
outstanding, Subordinated Debt Securities of one or more
specified series, or one or more tranches thereof, or modifies
the rights of the holders of Subordinated Debt Securities of such
series or tranches with respect to such covenant or other
provision, will be deemed not to affect the rights under the
Indenture of the holders of the Subordinated Debt Securities of
any other series or tranche.
Notwithstanding the foregoing, so long as the Subordinated Debt
Securities of any series are held by a Washington Water Power
Trust, the Debt Trustee may not consent to a supplemental
indenture contemplated in the second preceding paragraph 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 Preferred Securities issued by such
trust, or, in the case of changes described in clauses (a), (b)
and (c) above, of each holder of outstanding Preferred
Securities.
8
INDENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following
described events with respect to a series of Subordinated Debt
Securities that has occurred and is continuing constitutes an
"Indenture Event of Default" with respect to such series of
Subordinated Debt Securities:
(i) failure for 60 days to pay any interest on such series
of Subordinated Debt Securities, when due and payable;
provided, however, that no such failure shall constitute an
Indenture Event of Default if the Company shall have made a
valid extension of the interest payment period with respect to
such series of Subordinated Debt Securities if so provided with
respect to such series; or
(ii) failure to pay any principal or premium, if any, on
such series of Subordinated Debt Securities within 3 days after
its maturity; provided, however, that no such failure shall
constitute an Indenture Event of Default if the Company shall
have made a valid extension of the maturity of such series of
Subordinated Debt Securities, if so provided with respect to
such series; or
(iii) failure to perform, or breach of, any covenant or
warranty of the Company contained in the Indenture for 90 days
after written notice to the Company from the Debt Trustee or to
the Company and the Debt Trustee by the holders of at least 33%
in principal amount of such series of outstanding Subordinated
Debt Securities as provided in the Indenture; or
(iv) certain events in bankruptcy, insolvency or
reorganization of the Company; or
(v) in the event Subordinated Debt Securities are 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 and so long as such Trust
Securities remain outstanding, the voluntary or involuntary
dissolution, winding-up or termination of such Washington Water
Power Trust, except in connection with the distribution of
Subordinated Debt Securities in liquidation of such Washington
Water Power Trust, the redemption of all of the Trust
Securities of such Washington Water Power Trust, or certain
mergers, consolidations or amalgamations, each as permitted by
the Declaration of such Washington Water Power Trust.
REMEDIES
If an Indenture Event of Default applicable to the Subordinated
Debt Securities of such series occurs and is continuing, then
either the Debt Trustee or the holders of not less than 33% in
aggregate principal amount of the outstanding Subordinated Debt
Securities of such series may declare the principal of all of the
Subordinated Debt Securities of such series and interest accrued
thereon to be due and payable immediately (subject to the
subordination provisions of the Indenture); provided, however,
that if an Indenture Event of Default occurs and is continuing
with respect to more than one series of Subordinated Debt
Securities, the Debt Trustee or the holders of not less than 33%
in aggregate principal amount of the outstanding Subordinated
Debt Securities of all such series, considered as one class, may
make such declaration of acceleration and not the holders of the
Subordinated Debt Securities of any one such series.
At any time after such a declaration of acceleration with
respect to the Subordinated Debt Securities of any series has
been made, but before a judgment or decree for payment of the
money due has been obtained, the Indenture Event or Events of
Default giving rise to such declaration of acceleration will,
without further act, be deemed to have been cured, and such
declaration and its consequences will, without further act, be
deemed to have been rescinded and annulled, if
(a) the Company has paid or deposited with the Debt Trustee
a sum sufficient to pay
(1) all overdue interest, if any, on all Subordinated Debt
Securities of such series;
(2) the principal of and premium, if any, on any
Subordinated Debt Securities of such series which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor in such Subordinated Debt Securities;
9
(3) interest upon overdue interest at the rate or rates
prescribed therefor in such Subordinated Debt Securities, to
the extent that payment of such interest is lawful; and
(4) all amounts due to the Debt Trustee under the Indenture;
and
(b) any other Indenture Event or Events of Default with
respect to Subordinated Debt Securities of such series, other
than the non-payment of the principal of the Subordinated Debt
Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as
provided in the Indenture.
If an Indenture Event of Default with respect to the
Subordinated Debt Securities of any series occurs and is
continuing, the holders of a majority in principal amount of the
outstanding Subordinated Debt Securities of such series will have
the right to direct the time, method and place of conducting any
proceedings for any remedy available to the Debt Trustee or
exercising any trust or power conferred on the Debt Trustee;
provided, however, that if an Indenture Event of Default occurs
and is continuing with respect to more than one series of
Subordinated Debt Securities, the holders of a majority in
aggregate principal amount of the outstanding Subordinated Debt
Securities of all such series, considered as one class, will have
the right to make such direction, and not the holders of the
Subordinated Debt Securities of any one of such series; and
provided, further, that (a) such direction does not conflict with
any rule of law or with the Indenture, and could not involve the
Debt Trustee in personal liability in circumstances where
indemnity would not, in the Debt Trustee's sole discretion, be
adequate and (b) the Debt Trustee may take any other action
deemed proper by the Debt Trustee which is not inconsistent with
such direction.
The Indenture provides that no holder of any Subordinated Debt
Security will have any right to institute any proceeding,
judicial or otherwise, with respect to the Indenture or for the
appointment of a receiver or for any other remedy thereunder
unless (a) such holder has previously given to the Debt Trustee
written notice of a continuing Indenture Event of Default with
respect to the Subordinated Debt Securities of any one or more
series; (b) the holders of a majority in aggregate principal
amount of the outstanding Subordinated Debt Securities of all
series in respect of which such Indenture Event of Default has
occurred, considered as one class have made written request to
the Debt Trustee to institute proceedings in respect of such
Indenture Event of Default and have offered the Debt Trustee
reasonable indemnity against costs and liabilities to be incurred
in complying with such request; and (c) for 60 days after receipt
of such notice, the Debt Trustee has failed to institute any such
proceeding and no direction inconsistent with such request has
been given to the Debt Trustee during such sixty day period by
the holders of a majority in aggregate principal amount of
Subordinated Debt Securities then outstanding. Furthermore, no
holder will be entitled to institute any such action if and to
the extent that such action would disturb or prejudice the rights
of other holders. Notwithstanding that the right of a holder to
institute a proceeding with respect to the Indenture is subject
to certain conditions precedent, each holder of a Subordinated
Debt Security has the right, which is absolute and unconditional,
to receive payment of the principal of and premium, if any, and
interest, if any, on such Subordinated Debt Security when due and
to institute suit for the enforcement of any such payment, and
such rights may not be impaired without the consent of such
holder. The Indenture provides that the Debt Trustee give the
holders notice of any default under the Indenture to the extent
required by the Trust Indenture Act, unless such default shall
have been cured or waived, except that no such notice to holders
of a default of the character described in clause (iii) under "-
Indenture Events of Default" may be given until at least 75 days
after the occurrence thereof. For purposes of the preceding
sentence, the term "default" means any event which is, or after
notice or lapse of time, or both, would become, an Indenture
Event of Default. The Trust Indenture Act currently permits the
Debt Trustee to withhold notices of default (except for certain
payment defaults) if the Debt Trustee in good faith determines
the withholding of such notice to be in the interests of the
holders.
If the Subordinated Debt Securities of any series shall be held
by the Institutional Trustee of a Washington Water Power Trust
and if such Institutional Trustee, as such holder, shall have
failed to exercise any of the rights and remedies available under
the Indenture to the holders of such Subordinated Debt
Securities, the holders of the Preferred Securities of such trust
shall have and may exercise all such rights and remedies, to the
same extent as if such holders of such Preferred Securities held
a principal amount of Subordinated Debt Securities of such series
equal to the liquidation amount of such Preferred Securities,
without first proceeding against such trustee or trust.
Notwithstanding the foregoing, in the case of an Indenture Event
of Default described above in clause (i) or (ii) under "-
Indenture Events of Default," each holder of such Preferred
Securities shall have and may exercise all rights available to
the Institutional Trustee as the holder of such Subordinated Debt
Securities. If action shall have been taken by both the holder
of such Subordinated Debt Securities and the holders of such
Preferred Securities to exercise such rights, the action taken by
the holders of the Preferred Securities shall control.
10
The Company is required to file annually with the Debt Trustee
a certificate as to whether or not the Company is in compliance
with all the conditions and covenants applicable to it under the
Indenture.
CERTAIN COVENANTS OF THE COMPANY
If at any time (a) there shall have occurred and be continuing
a payment default with respect to Subordinated Debt Securities of
a series, (b) the Company shall have given notice of its election
of an Extension Period as provided in the Indenture with respect
to the Subordinated Debt Securities of such series, and any such
period, as so extended, shall be continuing, or (c) the Company
shall be in default with respect to its payment or other
obligations under the Preferred Securities Guarantee relating to
the Preferred Securities of the Washington Water Power Trust to
which Subordinated Debt Securities of such series have been
issued, then the Company shall not (a) declare or pay any
dividend on, or make any distribution or liquidation payment with
respect to, or redeem or purchase any of its capital stock, (b)
make any payment of principal, premium, if any, or interest, if
any, on or repay, repurchase or redeem any debt securities
(including other Subordinated Debt Securities) issued by the
Company that rank pari passu with or junior in right of payment
to the Subordinated Debt Securities or (c) make any guarantee
payments with respect to the foregoing (other than pursuant to
the Preferred Securities Guarantees); provided, however, that
nothing herein shall be deemed to prohibit (i) dividends or
distributions payable in shares of the Company's capital stock,
(ii) reclassification of the Company's capital stock or exchange
or conversion of shares of one class or series of the Company's
capital stock into shares of another class or series of the
Company's capital stock, (iii) purchases or other acquisitions of
fractional interests in shares of the Company's capital stock and
(iv) redemption, purchases or other acquisitions of shares 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.
If Subordinated Debt 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 will (a) maintain 100% direct ownership of the Common
Securities of such Washington Water Power Trust by the Company or
any affiliate thereof, except as otherwise provided below under
"- Consolidation, Merger, Sale of Assets and Other Transactions,"
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 Subordinated Debt
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.
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that 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 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
Subordinated Debt 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
and shall expressly assume the due and punctual payment of the
principal of and premium, if any, and interest, if any, on all
the Subordinated Debt Securities then outstanding and the
performance and observance of every covenant and condition of the
Indenture to be performed or observed by the Company. In the
case of the conveyance or other transfer of all of the properties
of the Company, as or substantially as an entirety, to any person
as contemplated above, the Company would be released and
discharged from all obligations under the Indenture and on all
Subordinated Debt Securities then outstanding unless the Company
elects to waive such release and discharge. Upon any such
consolidation or merger or any such conveyance or other transfer
of properties of the Company, the successor or transferee shall
succeed to, and be substituted for, and may exercise every power
and right of, the Company under the Indenture. For purposes of
the Indenture, 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
11
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.
If the Company shall convey or otherwise transfer 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 the second preceding
paragraph, and if (a) such transferee shall expressly assume the
due and punctual payment of the principal of and premium, if any,
and interest, if any, on all Subordinated Debt Securities then
outstanding and the performance and observance of every covenant
and condition of the Indenture to be performed or observed by the
Company, (b) there shall be delivered to the Trustee an
independent expert's certificate (i) describing the property so
conveyed or transferred and identifying the same as facilities
for the generation, transmission or distribution of electric
energy or for the storage, transportation or distribution of
natural gas and (ii) stating that the aggregate principal amount
of the Subordinated Debt Securities then outstanding does not
exceed 70% of the fair value of such property, and (c) the
Company shall assign or otherwise transfer all Common Securities
then outstanding to such transferee, then the Company shall be
released and discharged from all obligations and covenants under
the Indenture and on all Subordinated Debt Securities then
outstanding unless the Company elects to waive such release and
discharge. In such event, the transferee corporation shall
succeed to, and be substituted for, and may exercise every right
and power of, the Company under the Indenture.
SATISFACTION AND DISCHARGE
Any Subordinated Debt Securities, or any portion of the
principal amount thereof, will be deemed to have been paid for
purposes of the Indenture and, at the Company's election, the
entire indebtedness of the Company in respect thereof will be
deemed to have been satisfied and discharged, if there shall have
been irrevocably deposited with the Debt Trustee or any Paying
Agent (other than the Company), in trust: (a) money in an amount
which will be sufficient, or (b) in the case of a deposit made
prior to the maturity of the Subordinated Debt Securities,
Eligible Obligations, which do not contain provisions permitting
the redemption or other prepayment thereof at the option of the
issuer thereof, the principal of and the interest on which when
due, without any regard to reinvestment thereof, will provide
moneys which, together with the money, if any, deposited with or
held by the Debt Trustee or such Paying Agent, will be
sufficient, or (c) a combination of (a) and (b) which will be
sufficient, to pay when due the principal of and premium, if any,
and interest, if any, due and to become due on such Subordinated
Debt Securities. For this purpose, Eligible Obligations include
direct obligations of, or obligations unconditionally guaranteed
by, the United States entitled to the benefit of the full faith
and credit thereof and certificates, depositary receipts or other
instruments which evidence a direct ownership interest in such
obligations or in any specific interest or principal payments due
in respect thereof and such other obligations or instruments as
shall be specified in an accompanying Prospectus Supplement.
The Indenture will be deemed to have been satisfied and
discharged when no Subordinated Debt Securities remain
outstanding thereunder and the Company has paid or caused to be
paid all other sums payable by the Company under the Indenture.
SUBORDINATION
In the Indenture, the Company has covenanted and agreed that
any Subordinated Debt Securities issued thereunder will be
subordinate and junior in right of payment to all Senior
Indebtedness to the extent provided in the Indenture. Upon any
payment or distribution of assets to creditors upon any
liquidation, dissolution, winding- up, reorganization, assignment
for the benefit of creditors, marshaling of assets or any
bankruptcy, insolvency, debt restructuring or similar proceedings
in connection with any insolvency or bankruptcy proceeding of the
Company, the holders of Senior Indebtedness will first be
entitled to receive payment in full of principal of and premium,
if any, and interest, if any, on such Senior Indebtedness before
the holders of Subordinated Debt Securities will be entitled to
receive any payment in respect of the principal of, premium, if
any, or interest, if any, on the Subordinated Debt Securities;
and if, notwithstanding the foregoing, payment in respect of the
Subordinated Debt Securities is received by the Debt Trustee or a
holder of a Subordinated Debt Security before all Senior
Indebtedness is paid in full, such payment in respect of the
Subordinated Debt Securities is to be paid over to the holders of
Senior Indebtedness or their representatives.
In the event of the acceleration of the maturity of any
Subordinated Debt Securities, the holders of all Senior
Indebtedness outstanding at the time of such acceleration will be
entitled to receive payment in full of all amounts due thereon
(including any amounts due upon acceleration) before the holders
12
of Subordinated Debt Securities will be entitled to receive any
payment upon the principal of, premium, if any, or interest, if
any, on the Subordinated Debt Securities. No payments on account
of principal, premium, if any, or interest, if any, in respect of
the Subordinated Debt Securities may be made if there shall have
occurred and be continuing a default in any payment with respect
to Senior Indebtedness, or an event of default with respect to
any Senior Indebtedness resulting in the acceleration of the
maturity thereof remaining uncured.
The term Senior Indebtedness is defined in the Indenture to
mean, with respect to any person, (a) indebtedness (including
premium, if any, and interest, if any, thereon) 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 Subordinated Debt
Securities); (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 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 Subordinated Debt
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.
The Indenture places no limitation on the amount of additional
Senior Indebtedness that may be incurred by the Company. The
Company expects from time to time to incur additional
indebtedness constituting Senior Indebtedness.
INFORMATION CONCERNING THE DEBT TRUSTEE
The Debt Trustee shall have, and shall be subject to, all the
duties and responsibilities specified with respect to an
indenture trustee under the Trust Indenture Act. Subject to such
provisions, the Debt Trustee is under no obligation to exercise
any of the powers vested in it by the Indenture at the request of
any holder of Subordinated Debt Securities, unless offered
reasonable indemnity by such holder against the costs, expenses
and liabilities which might be incurred thereby. The Debt Trustee
is not required to expend or risk its own funds or otherwise
incur personal financial liability in the performance of its
duties if the Debt Trustee reasonably believes that repayment or
adequate indemnity is not reasonably assured to it.
GOVERNING LAW
The Indenture and the Subordinated Debt Securities will be
governed by and construed in accordance with the laws of the
State of New York.
DESCRIPTION OF THE PREFERRED SECURITIES
Each Washington Water Power Trust may issue, from time to time,
only one series of Preferred Securities having terms described in
the Prospectus Supplement relating thereto. The Declaration of
each Washington Water Power Trust authorizes the Regular Trustees
of such Washington Water Power Trust to issue on behalf of such
Washington Water Power Trust one series of Preferred Securities.
The Declaration will be qualified as an indenture under the Trust
Indenture Act. The Preferred Securities will have such terms,
including distributions, redemption, voting, liquidation rights
and such other preferred, deferred or other special rights or
such restrictions as shall be set forth in the Declaration or
made part of the Declaration by the Trust Indenture Act and which
will be correlative to the terms of the Subordinated Debt
Securities held by the Washington Water Power Trust and described
in the Prospectus Supplement relating thereto. Reference is made
to the Prospectus Supplement relating to the Preferred Securities
of the Washington Water Power Trust for specific terms, including
(i) the distinctive designation of such Preferred Securities;
(ii) the number of Preferred Securities issued by such Washington
Water Power Trust; (iii) the annual distribution rate (or method
of determining such rate) for Preferred Securities issued by such
13
Washington Water Power Trust and the date or dates upon which
such distributions shall be payable; provided, however, that
distributions on such Preferred Securities shall be payable on a
quarterly basis to holders of such Preferred Securities as of a
record date in each quarter during which such Preferred
Securities are outstanding; (iv) whether distributions on
Preferred Securities issued by such Washington Water Power Trust
shall be cumulative, and, in the case of Preferred Securities
having such cumulative distribution rights, the date or dates or
method of determining the date or dates from which distributions
on Preferred Securities issued by such Washington Water Power
Trust shall be cumulative; (v) the amount or amounts which shall
be paid out of the assets of such Washington Water Power Trust to
the holders of Preferred Securities of such Washington Water
Power Trust upon voluntary or involuntary dissolution, winding-up
or termination of such Washington Water Power Trust; (vi) the
obligation, if any, of such Washington Water Power Trust to
purchase or redeem Preferred Securities issued by such Washington
Water Power Trust and the price or prices at which, the period or
periods within which, and the terms and conditions upon which,
Preferred Securities issued by such Washington Water Power Trust
shall be purchased or redeemed, in whole or in part, pursuant to
such obligation; (vii) the voting rights, if any, of Preferred
Securities issued by such Washington Water Power Trust in
addition to those required by law, including the number of votes
per Preferred Security and any requirement for the approval by
the holders of Preferred Securities, or of Preferred Securities
issued by one or more Washington Water Power Trusts, or of both,
as a condition to specified action or amendments to the
Declaration of such Washington Water Power Trust; (viii) the
enforcement rights, if any, of holders of Preferred Securities
with respect to the applicable series of Subordinated Debt
Securities; (ix) the terms and conditions, if any, upon which the
Subordinated Debt Securities may be distributed to holders of
Preferred Securities; (x) if applicable, any securities exchange
upon which the Preferred Securities shall be listed; and (xi) any
other relevant rights, preferences, privileges, limitations or
restrictions of Preferred Securities issued by such Washington
Water Power Trust not inconsistent with the Declaration of such
Washington Water Power Trust or with applicable law. All
Preferred Securities offered hereby will be guaranteed by the
Company to the extent set forth below under "Description of the
Preferred Securities Guarantees." Certain United States federal
income tax considerations applicable to any offering of Preferred
Securities will be described in the Prospectus Supplement
relating thereto.
In connection with the issuance of Preferred Securities, each
Washington Water Power Trust will issue one series of Common
Securities. The Declaration of each Washington Water Power Trust
authorizes the Regular Trustees of such trust to issue on behalf
of such Washington Water Power Trust one series of Common
Securities having such terms including distributions, redemption,
voting, liquidation rights or such restrictions as shall be set
forth therein. The terms of the Common Securities issued by a
Washington Water Power Trust will be substantially identical to
the terms of the Preferred Securities issued by such trust and
the Common Securities will rank pari passu, and payments will be
made thereon pro rata, with the Preferred Securities except that,
upon an event of default under the Declaration, the rights of the
holders of the Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and
otherwise will be subordinated to the rights of the holders of
the Preferred Securities. Except in certain limited
circumstances, the Common Securities will also carry the right to
vote to appoint, remove or replace any of the Washington Water
Power Trustees of a Washington Water Power Trust. All of the
Common Securities of each Washington Water Power Trust will be
directly or indirectly owned by the Company.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the
Preferred Securities Guarantees which will be executed and
delivered by the Company for the benefit of the holders from time
to time of Preferred Securities. Each Preferred Securities
Guarantee will be qualified as an indenture under the Trust
Indenture Act. Wilmington Trust Company will act as indenture
trustee under each Preferred Securities Guarantee for purposes of
the Trust Indenture Act (the "Preferred Guarantee Trustee"). The
terms of each Preferred Securities Guarantee will be those set
forth in such Preferred Securities Guarantee and those made part
of such Preferred Securities Guarantee by the Trust Indenture
Act. The summary of the material terms of the Preferred
Securities Guarantees does not purport to be complete and is
subject in all respects to the provisions of, and is qualified in
its entirety by reference to, the form of Preferred Securities
Guarantee, which is filed as an exhibit to the Registration
Statement of which this Prospectus forms a part, and the Trust
Indenture Act. Each Preferred Securities Guarantee will be held
by the Preferred Guarantee Trustee for the benefit of the holders
of the Preferred Securities of the applicable Washington Water
Power Trust.
GENERAL
14
Pursuant to each Preferred Securities Guarantee, the Company
will irrevocably and unconditionally agree, to the extent set
forth therein, to pay in full to the holders of the Preferred
Securities issued by a Washington Water Power Trust, the
Guarantee Payments (as defined herein) (except to the extent paid
by such Washington Water Power Trust), as and when due,
regardless of any defense, right of set-off or counterclaim which
such Washington Water Power Trust may have or assert. The
following payments with respect to Preferred Securities issued by
a Washington Water Power Trust to the extent not paid by such
Washington Water Power Trust (the "Guarantee Payments"), will be
subject to the Preferred Securities Guarantee thereon (without
duplication): (i) any accrued and unpaid distributions which are
required to be paid on such Preferred Securities, to the extent
such Washington Water Power Trust shall have funds available
therefor; (ii) the redemption price, including all accrued and
unpaid distributions (the "Redemption Price"), with respect to
any Preferred Securities called for redemption by such Washington
Water Power Trust, to the extent such Washington Water Power
Trust shall have funds available therefor, and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination
of such Washington Water Power Trust (other than in connection
with the distribution of Subordinated Debt Securities to the
holders of Preferred Securities or the redemption of all of the
Preferred Securities), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid distributions on
such Preferred Securities to the date of payment and (b) the
amount of assets of such Washington Water Power Trust remaining
available for distribution to holders of such Preferred
Securities in liquidation of such Washington Water Power Trust.
The redemption price and liquidation amount will be fixed at the
time the Preferred Securities are issued. The Company's
obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Company to the holders of
Preferred Securities or by causing the applicable Washington
Water Power Trust to pay such amounts to such holders.
If the Company does not make interest payments on the
Subordinated Debt Securities purchased by a Washington Water
Power Trust, such Washington Water Power Trust will not pay
distributions on the Preferred Securities issued by such
Washington Water Power Trust and will not have funds available
therefor. See "Description of the Subordinated Debt Securities -
Certain Covenants of the Company" herein. The Preferred
Securities Guarantee, when taken together with the Company's
obligations under the Subordinated Debt Securities, the
Indenture, the Declaration and the Expense Agreement, will
effectively provide a full and unconditional guarantee, on a
subordinated basis, by the Company of payments due on the
Preferred Securities.
The Company has also agreed separately to irrevocably and
unconditionally guarantee the obligations of the Washington Water
Power Trusts with respect to the Common Securities to the same
extent as the Preferred Securities Guarantees, except that upon
an Indenture Event of Default, holders of Preferred Securities
shall have priority over holders of Common Securities with
respect to distributions and payments on liquidation, redemption
or otherwise.
CERTAIN COVENANTS OF THE COMPANY
In each Preferred Securities Guarantee, the Company will
covenant that, so long as any Preferred Securities issued by the
applicable Washington Water Power Trust remain outstanding, if
there shall have occurred and be continuing any event that would
constitute an event of default under such Preferred Securities
Guarantee or the Declaration of such Washington Water Power
Trust, then the Company shall not (a) declare or pay any dividend
on, or make any distribution or liquidation payment with respect
to, or redeem or purchase any of its capital stock, (b) make any
payment of principal, premium, if any, or interest, if any, on or
repay, repurchase or redeem any debt securities (including other
Subordinated Debt Securities) issued by the Company that rank
pari passu with or junior in right of payment to the Subordinated
Debt Securities and (c) make any guarantee payments with respect
to the foregoing, other than pursuant to the Preferred Securities
Guarantees); provided, however, that nothing herein shall be
deemed to prohibit (i) dividends or distributions payable in
shares of the Company's capital stock, (ii) reclassification of
the Company's capital stock or exchange or conversion of shares
of one class or series of the Company's capital stock into shares
of another class or series of the Company's capital stock, (iii)
purchases or other acquisitions of fractional interests in shares
of the Company's capital stock and (iv) purchases or other
acquisitions of shares of the Company's capital stock in
connection with the satisfaction by the Company of its
obligations 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.
MODIFICATION OF THE PREFERRED SECURITIES GUARANTEES; ASSIGNMENT
15
Except with respect to any changes which do not materially
adversely affect the rights of holders of Preferred Securities
(in which case no vote will be required), each Preferred
Securities Guarantee may be amended only with the prior approval
of the holders of a majority in liquidation amount of the
outstanding Preferred Securities issued by the applicable
Washington Water Power Trust. The manner of obtaining any such
approval of holders of such Preferred Securities will be as set
forth in an accompanying Prospectus Supplement under "Description
of the Preferred Securities - Voting Rights." All guarantees and
agreements contained in a Preferred Securities Guarantee shall
bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of
the holders of the Preferred Securities of the applicable
Washington Water Power Trust then outstanding.
TERMINATION
Each Preferred Securities Guarantee will terminate as to the
Preferred Securities issued by the applicable Washington Water
Power Trust (a) upon full payment of the Redemption Price of all
Preferred Securities of such Washington Water Power Trust, (b)
upon distribution of the Subordinated Debt Securities held by
such Washington Water Power Trust to the holders of the Preferred
Securities of such Washington Water Power Trust or (c) upon full
payment of the amounts payable in accordance with the Declaration
of such Washington Water Power Trust upon liquidation of such
Washington Water Power Trust. Each Preferred Securities Guarantee
will continue to be effective or will be reinstated, as the case
may be, if at any time any holder of Preferred Securities issued
by the applicable Washington Water Power Trust must restore
payment of any sums paid under such Preferred Securities or such
Preferred Securities Guarantee.
EVENTS OF DEFAULT
An event of default under a Preferred Securities Guarantee will
occur upon the failure of the Company to perform any of its
payment or other obligations thereunder.
The holders of a majority in liquidation amount of the
Preferred Securities relating to such Preferred Securities
Guarantee have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
Preferred Guarantee Trustee in respect of the Preferred
Securities Guarantee or to direct the exercise of any trust or
power conferred upon the Preferred Guarantee Trustee under such
Preferred Securities Guarantee. If the Preferred Guarantee
Trustee fails to enforce such Preferred Securities Guarantee, any
holder of Preferred Securities relating to such Preferred
Securities Guarantee may institute a legal proceeding directly
against the Company to enforce the Preferred Guarantee Trustee's
rights under such Preferred Securities Guarantee, without first
instituting a legal proceeding against the relevant Washington
Water Power Trust, the Preferred Guarantee Trustee or any other
person or entity. Notwithstanding the foregoing, if the Company
has failed to make a guarantee payment, a holder of Preferred
Securities may directly institute a proceeding against the
Company for enforcement of the Preferred Securities Guarantee for
such payment. The Company waives any right or remedy to require
that any action be brought first against such Washington Water
Power Trust or any other person or entity before proceeding
directly against the Company.
The Company, as guarantor, is required to file annually with
the Preferred Guarantee Trustee a certificate as to whether or
not the Company is in compliance with all the conditions and
covenants applicable to it under the Preferred Securities Guarantees.
STATUS OF THE PREFERRED SECURITIES GUARANTEES
Each Preferred Securities Guarantee will constitute an
unsecured obligation of the Company and will rank (i) subordinate
and junior in right of payment to all other liabilities of the
Company and (ii) pari passu with any other Preferred Securities
Guarantee and any other guarantee now or hereafter entered into
by the Company with respect to any preferred securities issued by
any trust, partnership or other entity which is a financing
vehicle of the Company, except that, where an Indenture Event of
Default occurs and is continuing, the rights of holders of the
Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise are
subordinated to the rights to payment of holders of Preferred
Securities. None of the Preferred Securities Guarantees places a
limitation on the amount of additional Senior Indebtedness that
may be incurred by the Company. The Company expects from time to
time to incur additional indebtedness constituting Senior
Indebtedness. The terms of the Preferred Securities provide that
each holder of Preferred Securities issued by the applicable
Washington Water Power Trust by acceptance thereof agrees to the
subordination provisions and other terms of a Preferred
Securities Guarantee relating thereto.
16
Each Preferred Securities Guarantee will constitute a guarantee
of payment and not of collection (that is, the guaranteed party
may institute a legal proceeding directly against the Company to
enforce its rights under a Preferred Securities Guarantee without
instituting a legal proceeding against any other person or
entity).
INFORMATION CONCERNING THE PREFERRED GUARANTEE TRUSTEE
The Preferred Guarantee Trustee, other than prior to the
occurrence and after the curing of a default with respect to a
Preferred Securities Guarantee, undertakes to perform only such
duties as are specifically set forth in such Preferred Securities
Guarantee and, after default, shall exercise the same degree of
care as a prudent individual would exercise in the conduct of his
or her own affairs. Notwithstanding such provisions, the
Preferred Guarantee Trustee is under no obligation to exercise
any of the powers vested in it by a Preferred Securities
Guarantee at the request of any holder of Preferred Securities,
unless offered reasonable indemnity against the costs, expenses
and liabilities which might be incurred thereby.
GOVERNING LAW
The Preferred Securities Guarantees will be governed by and
construed in accordance with the laws of the State of New York.
EXPENSE AGREEMENTS
Pursuant to the Expense Agreements entered into by the Company
under the Declarations (the "Expense Agreements"), the Company
will irrevocably and unconditionally guarantee to each person or
entity to whom each Washington Water Power Trust becomes indebted
or liable, the full payment of any costs, expenses or liabilities
of such Washington Water Power Trust, other than obligations of
such Washington Water Power Trust to pay to the holders of the
related Preferred Securities or other similar interests in such
Washington Water Power Trust the amounts due such holders
pursuant to the terms of such Preferred Securities or such other
similar interests, as the case may be.
EFFECT OF OBLIGATIONS UNDER THE
SUBORDINATED DEBT SECURITIES AND THE GUARANTEE
As set forth in the Declaration, the sole purpose of each of
the Washington Water Power Trusts is to issue the Trust
Securities evidencing undivided beneficial interests in the
assets of each of the Washington Water Power Trusts and to invest
the proceeds from such issuance and sale in the Subordinated Debt
Securities.
As long as payments of interest and other payments are made
when due on the Subordinated Debt Securities, such payments will
be sufficient to cover distributions and payments due on the
Trust Securities because of the following factors: (i) the
aggregate principal amount of Subordinated Debt Securities will
be equal to the aggregate stated liquidation amount of the Trust
Securities; (ii) the interest rate and the interest and other
payment dates on the Subordinated Debt Securities will be
correlative to the distribution rate and distribution and other
payment dates for the Preferred Securities; (iii) the Company
shall pay all, and the applicable Washington Water Power Trust
shall not be obligated to pay, directly or indirectly, all costs,
expenses, debt and obligations of the applicable Washington Water
Power Trust (other than to the holders of Trust Securities); and
(iv) the Declaration further provides that the Washington Water
Power Trustees shall not take or cause or permit the applicable
Washington Water Power Trust to, among other things, engage in
any activity that is not consistent with the purposes of the
applicable Washington Water Power Trust.
Payments of distributions and other payments due on the
Preferred Securities (each, to the extent funds therefor are
available) are guaranteed by the Company as and to the extent set
forth above under "Description of the Preferred Securities
Guarantees." If the Company does not make interest payments on
the Subordinated Debt Securities purchased by the applicable
Washington Water Power Trust, it is expected that the applicable
Washington Water Power Trust will not have sufficient funds to
pay distributions on the Preferred Securities. The Guarantee does
not apply to any payment of distributions unless and until the
applicable Washington Water Power Trust has sufficient funds for
the payment of such distributions. The Guarantee covers the
payment of distributions and other payments on the Preferred
Securities only if and to the extent that the Company has made a
17
payment of interest or principal on the Subordinated Debt
Securities held by the applicable Washington Water Power Trust as
its only assets. The Guarantee, when taken together with the
Company's obligations under the Subordinated Debt Securities, the
Indenture, the Declaration and the Expense Agreement, effectively
provides a full and unconditional guarantee, on a subordinated
basis, of amounts on the Preferred Securities.
If the Company fails to make interest or other payments on the
Subordinated Debt Securities when due (taking account of any
Extension Period), the Declaration provides a mechanism whereby
the holders of the Preferred Securities, using the procedures
described in "Description of the Preferred Securities - Voting
Rights" in an accompanying Prospectus Supplement, may direct the
Institutional Trustee to enforce its rights under the
Subordinated Debt Securities. If the Institutional Trustee fails
to enforce its rights under the Subordinated Debt Securities, a
holder of Preferred Securities may institute a legal proceeding
against the Company to enforce the Institutional Trustee's rights
under the Subordinated Debt Securities without first instituting
any legal proceeding against the Institutional Trustee or any
other person or entity. Notwithstanding the foregoing, if a
Declaration Event of Default has occurred and is continuing and
such event is attributable to the failure of the Company to pay
interest or principal on the Subordinated Debt Securities on the
date such interest or principal is otherwise payable (or in the
case of redemption on the redemption date), then a holder of
Preferred Securities may institute a Direct Action for payment on
or after the respective due date specified in the Subordinated
Debt Securities. In connection with such Direct Action, the
Company will be subrogated to the rights of such holder of
Preferred Securities under the Declaration to the extent of any
payment made by the Company to such holder of Preferred
Securities in such Direct Action. The Company, under the
Guarantee, acknowledges that the Preferred Securities Guarantee
Trustee shall enforce the Preferred Securities Guarantee on
behalf of the holders of the Preferred Securities. If the Company
fails to make payments under the Preferred Securities Guarantee,
the Preferred Securities Guarantee provides a mechanism whereby
the holders of the Preferred Securities may direct the Preferred
Securities Guarantee Trustee to enforce its rights thereunder.
Any holder of Preferred Securities may institute a legal
proceeding directly against the Company to enforce the Preferred
Securities Guarantee Trustee's rights under the Preferred
Securities Guarantee without first instituting a legal proceeding
against the applicable Washington Water Power Trust, the
Preferred Securities Guarantee Trustee, or any other person or
entity.
The Company and each of the Washington Water Power Trusts
believe that the above mechanisms and obligations, taken
together, effectively provide a full and unconditional guarantee,
on a subordinated basis, by the Company of payments due on the
Preferred Securities. See "Description of the Preferred
Securities Guarantees - General" herein.
PLAN OF DISTRIBUTION
The Company may sell the Subordinated Debt Securities and any
Washington Water Power Trust may sell Preferred Securities in any
of, or any combination of, the following ways: (i) directly to
purchasers, (ii) through agents, (iii) through underwriters and
(iv) through dealers.
Offers to purchase Offered Securities may be solicited directly
by the Company and/or any Washington Water Power Trust, as the
case may be, or by agents designated by the Company and/or any
Washington Water Power Trust, as the case may be, from time to
time. Any such agent, who may be deemed to be an underwriter as
that term is defined in the Securities Act, involved in the offer
or sale of the Offered Securities in respect of which this
Prospectus is delivered will be named, and any commissions
payable by the Company to such agent will be set forth, in the
Prospectus Supplement. Unless otherwise indicated in the
Prospectus Supplement, any such agency will be acting on a best
efforts basis for the period of its appointment (ordinarily five
business days or less). Agents, dealers and underwriters may be
customers of, engage in transactions with, or perform services
for the Company in the ordinary course of business.
If an underwriter or underwriters are utilized in the sale, the
Company will execute an underwriting agreement with such
underwriters at the time of sale to them and the names of the
underwriters and the terms of the transaction will be set forth
in the Prospectus Supplement, which will be used by the
underwriters to make releases of the Offered Securities in
respect of which this Prospectus is delivered to the public.
If a dealer is utilized in the sale of the Offered Securities
in respect of which this Prospectus is delivered, the Company
and/or any Washington Water Power Trust, as the case may be, will
sell such Offered Securities to the dealer, as principal. The
dealer may then resell such Offered Securities to the public at
18
varying prices to be determined by such dealer at the time of
resale. The name of the dealer and the terms of the transaction
will be set forth in the Prospectus Supplement.
Agents, underwriters, and dealers may be entitled under the
relevant agreements to indemnification by the Company and/or any
Washington Water Power Trust, as the case may be, against certain
liabilities, including liabilities under the Securities Act.
The place and time of delivery for the Offered Securities in
respect of which this Prospectus is delivered will be set forth
in the Prospectus Supplement.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the
Preferred Securities, the enforceability of the Declarations and
the creation of the Washington Water Power Trusts will be passed
upon on behalf of the Washington Water Power Trusts by Richards,
Layton & Finger, P.A., Wilmington, Delaware, special Delaware
counsel to the Company and the Washington Water Power Trusts.
Certain matters of New York law and of federal securities laws
relating to the validity of the Subordinated Debt Securities and
the Preferred Securities Guarantees and certain matters relating
thereto will be passed upon for the Company by Reid & Priest LLP,
New York, New York, counsel to the Company. Certain matters of
Washington corporate law and of public utility regulatory
approvals under Washington, Idaho, Montana, Oregon and California
law relating to the authorization of the Subordinated Debt
Securities and the Preferred Securities Guarantees will be passed
upon for the Company by Paine, Hamblen, Coffin, Brooke & Miller
LLP, Spokane, Washington, general counsel for the Company.
Certain United States federal income taxation matters will be
passed upon for the Company and the Washington Water Power Trusts
by Reid & Priest LLP, special tax counsel to the Company and the
Washington Water Power Trusts. The validity of the Offered
Securities will be passed upon for the underwriters by Sullivan &
Cromwell, New York, New York. In giving their opinions Reid &
Priest LLP and Sullivan & Cromwell may assume the conclusions of
Washington, California, Idaho, Montana and Oregon law set forth
in the opinion of Paine, Hamblen, Coffin, Brooke & Miller LLP and
the conclusions of Delaware law set forth in the opinion of
Richards, Layton & Finger, P.A.
EXPERTS
The financial statements and the related financial statement
schedules incorporated in this prospectus by reference from the
Company's Latest Annual Report on Form 10-K have been audited by
Deloitte & Touche LLP, independent auditors, as stated in, and
for the periods set forth in, their reports which are
incorporated herein by reference and have been so incorporated in
reliance upon the reports of such firm given upon their authority
as experts in accounting and auditing.
19
===================================================================
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN
THOSE CONTAINED OR INCORPORATED IN THIS PROSPECTUS SUPPLEMENT AND
PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS
SUPPLEMENT AND PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFOR-
MATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY, THE TRUST OR ANY OF THE UNDERWRITERS.
NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT AND PROSPECTUS
NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY OR THE TRUST SINCE THE DATE
HEREOF. THIS PROSPECTUS SUPPLEMENT AND PROSPECTUS DO NOT CONSTI-
TUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE
PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO
SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
--------------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
PAGE
-----
THE WASHINGTON WATER POWER
COMPANY SELECTED HISTORICAL
FINANCIAL INFORMATION . . . . . . . . . . . . . . . . . . . 4
RISK FACTORS . . . . . . . . . . . . . . . . . . . . . . . . 5
THE WASHINGTON WATER POWER COMPANY . . . . . . . . . . . . . 8
WASHINGTON WATER POWER CAPITAL . . . . . . . . . . . . . . . 8
ACCOUNTING TREATMENT . . . . . . . . . . . . . . . . . . . . 9
CAPITALIZATION . . . . . . . . . . . . . . . . . . . . . . . 9
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . 9
DESCRIPTION OF THE PREFERRED SECURITIES . . . . . . . . . . . 10
DESCRIPTION OF THE SUBORDINATED DEBT
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . 19
CERTAIN UNITED STATES FEDERAL INCOME TAX
CONSIDERATIONS . . . . . . . . . . . . . . . . . . . . . . 21
UNDERWRITING . . . . . . . . . . . . . . . . . . . . . . . . 24
PROSPECTUS
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . 3
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . 3
THE TRUSTS . . . . . . . . . . . . . . . . . . . . . . . . . 4
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . 5
DESCRIPTION OF THE SUBORDINATED DEBT
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . 5
DESCRIPTION OF THE PREFERRED SECURITIES . . . . . . . . . . . 13
DESCRIPTION OF THE PREFERRED SECURITIES
GUARANTEES . . . . . . . . . . . . . . . . . . . . . . . . 14
EFFECT OF OBLIGATIONS UNDER THE
SUBORDINATED DEBT SECURITIES AND
THE GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . 17
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . 18
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . 19
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
===================================================================
______________
PREFERRED SECURITIES
WASHINGTON WATER
POWER CAPITAL I
____% TRUST ORIGINATED
PREFERRED SECURITIES,SM SERIES A
("TOPrSSM")
FULLY AND UNCONDITIONALLY
GUARANTEED BY
THE WASHINGTON WATER
POWER COMPANY
_________________________
PROSPECTUS SUPPLEMENT
_________________________
MERRILL LYNCH & CO.
________, 199_
===================================================================
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION (ESTIMATED).
Filing fee - Securities and Exchange Commission $ 45,455.00
Fees of state regulatory authorities . . . . 4,550.00
Legal counsel fees . . . . . . . . . . . . . 200,000.00
Trustees' fees . . . . . . . . . . . . . . . 5,000.00
Auditors' fees . . . . . . . . . . . . . . . 15,000.00
Listing fee - New York Stock Exchange . . . 88,500.00
Fees of rating agencies . . . . . . . . . . 35,000.00
Blue Sky counsel and filing fees . . . . . . 5,500.00
Printing, including Form S-3, prospectus,
exhibits, etc. . . . . . . . . . . . . . . 20,000.00
Miscellaneous expenses . . . . . . . . . . . 10,995.00
-----------
Total Estimated Expenses . . . . . . . . $430,000.00
===========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Seventh of the Company's Restated Articles of
Incorporation ("Articles") provides, in part, as follows:
"The Corporation shall, to the full extent permitted by
applicable law, as from time to time in effect, indemnify any
person made a party to, or otherwise involved in, any proceeding
by reason of the fact that he or she is or was a director of the
Corporation against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by him or her in connection
with any such proceeding. The Corporation shall pay any
reasonable expenses incurred by a director in connection with any
such proceeding in advance of the final determination thereof
upon receipt from such director of such undertakings for
repayment as may be required by applicable law and a written
affirmation by such director that he or she has met the standard
of conduct necessary for indemnification, but without any prior
determination, which would otherwise be required by Washington
law, that such standard of conduct has been met. The Corporation
may enter into agreements with each director obligating the
Corporation to make such indemnification and advances of expenses
as are contemplated herein. Notwithstanding the foregoing, the
Corporation shall not make any indemnification or advance which
is prohibited by applicable law. The rights to indemnity and
advancement of expenses granted herein shall continue as to any
person who has ceased to be a director and shall inure to the
benefit of the heirs, executors and administrators of such a
person."
The Company has entered into indemnification agreements with
each director as contemplated in Article Seventh of the Articles.
Reference is made to Revised Code of Washington 23B.08.510,
which sets forth the extent to which indemnification is permitted
under the laws of the State of Washington.
Article IX of the Company's Bylaws contains an indemnification
provision similar to that contained in the Articles and, in
addition, provides in part as follows:
"SECTION 2. LIABILITY INSURANCE. The Corporation shall have the
power to purchase and maintain insurance on behalf of any person
who is, or was a director, officer, employee, or agent of the
Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, other enterprise,
or employee benefit plan against any liability asserted against
him and incurred by him in any such capacity or arising out of
his status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the laws of
the State of Washington."
II-1
Insurance is maintained on a regular basis (and not
specifically in connection with this offering) against
liabilities arising on the part of directors and officers out of
their performance in such capacities or arising on the part of
the Company out of its foregoing indemnification provisions,
subject to certain exclusions and to the policy limits.
Section 10.4 of each Declaration provides with respect to the
Trust established thereby that:
(a) (i) The Company shall indemnify, to the full extent
permitted by law, any Company Indemnified Person (as defined
therein) who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investi-
gative (other than an action by or in the right of such Trust)
by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the
best interests of such Trust, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the Company Indemnified
Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best
interests of such Trust, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
(ii) The Company shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of such
Trust to procure a judgment in its favor by reason of the fact
that he is or was a Company Indemnified Person against expenses
(including attorneys' fees and expenses) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to
the best interests of such Trust and except that no such
indemnification shall be made in respect of any claim, issue or
matter as to which such Company Indemnified Person shall have
been adjudged to be liable to such Trust unless and only to the
extent that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise (including
dismissal of an action without prejudice or the settlement of
an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and
(ii) of Section 10.4(a), or in defense of any claim, issue or
matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of
Section 10.4(a) (unless ordered by a court) shall be made by
the Company only as authorized in the specific case upon a
determination that indemnification of the Company Indemnified
Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and
(ii). Such determination shall be made (1) by the respective
Regular Trustees by a majority vote of a quorum consisting of
such Regular Trustees who were not parties to such action, suit
or proceeding, (2) if such a quorum is not obtainable, or, even
if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion, or
(3) by the holders of the Common Securities.
(v) Expenses (including attorneys' fees and expenses)
incurred by a Company Indemnified Person in defending civil,
criminal, administrative or investigative action, suit or
proceeding referred to in paragraphs (i) and (ii) of Section
10.4(a) shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf such Company Indemnified Person
II-2
to repay such amount if it shall ultimately be determined that
he is not entitled to indemnified by the Company as authorized
in Section 10.4(a). Notwithstanding the foregoing, no advance
shall be made by the Company if a determination is reasonably
and promptly made (i) by the Regular Trustees by a majority
vote of a quorum of disinterested Regular Trustees, (ii) if
such a quorum is not obtainable, or, even if obtainable, if a
quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion or (iii) the
Common Security holder of such Trust, that, based upon the
facts known to the Regular Trustees, counsel or the Common
Security holder at the time such determination is made, such
Company Indemnified Person acted in bad faith or in a manner
that such person did not believe to be in or not opposed to the
best interests of such Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the
Regular Trustees, independent legal counsel or holders of the
Common Securities reasonably determine that such person
deliberately breached his duty to such Trust or the holders of
the Preferred Securities.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
Section 10.4(a) shall not be deemed exclusive of any other
rights to which those seeking indemnification and advancement
of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Company or vote
of holders of Preferred Securities or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office. All rights to
indemnification under Section 10.4(a) shall be deemed to be
provided by a contract between the Company and each Company
Indemnified Person who serves in such capacity at any time
while Section 10.4(a) is in effect. Any repeal or modification
of Section 10.4(a) shall not affect any rights or obligations
then existing.
(vii) The Company or such Trust may purchase and
maintain insurance on behalf of any person who is or was a
Company Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Company
would have the power to indemnify him against such liability
under the provisions of Section 10.4(a).
(viii) For purposes of Section 10.4(a), references to the
"Trust" shall include, in addition to the resulting or
surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a merger,
consolidation, amalgamation or other business combination so
that any person who is or was a director, trustee, officer or
employee of such constituent entity, or is or was serving at
the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in
the same position under the provisions of Section 10.4(a) with
respect to the resulting or surviving entity as he would have
with respect to such constituent entity if its separate
existence had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, Section 10.4(a) shall,
unless otherwise provided when authorized or ratified, continue
as to a person who has ceased to be a Company Indemnified
Person and shall inure to the benefit of the heirs, executors
and administrators of such a person.
(b) The Company agrees to indemnify (i) the Institutional
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate (as
defined in the respective Declaration) of the Institutional
Trustee and the Delaware Trustee, and (iv) any officers,
directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the
Institutional Trustee and the Delaware Trustee (each of the
Persons in (i) through (iv) being referred to as a "Fiduciary
Indemnified Person") for, and to hold each Fiduciary
Indemnified Person harmless against, any and all loss,
liability, damage, claim or expense including taxes (other than
taxes based on the income of such Fiduciary Indemnified Person)
incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of
defending itself against or investigating any claim or
liability in connection with the exercise or performance of any
of its powers or duties hereunder.
II-3
The obligation to indemnify as set forth in each
respective Section 10.4(b) shall survive the satisfaction and
discharge of the Declarations.
Section 8.2 of each Preferred Securities Guarantee provides with
respect to the related Trust that:
The Company agrees to indemnify each Indemnified Person (as
defined therein) for, and to hold each Indemnified Person
harmless against, any and all loss, liability, damage, claim or
expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of the trust or trusts thereunder, including the
costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any
claim or liability in connection with the exercise or
performance of any of its powers or duties thereunder.
The obligation to indemnify as set forth in each respective
Section 8.2 shall survive the termination of the Preferred
Securities Guarantees.
II-4
ITEM 16. EXHIBITS.
Reference is made to the Exhibit Index on p. II-10
hereof.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in this
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
registrants pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in this registration statement shall
be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof;
(5) That, for purposes of determining any liability under
the Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon rule 430A and contained in a form of prospectus
filed by the registrants pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
(6) That, for the purpose of determining any liability
under the Securities Act, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(7) To provide to the underwriter at the closing specified
in the underwriting agreements, certificates in such
denominations and registered in such names as required by the
underwriter to permit prompt delivery to each purchaser.
(8) That, insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors,
officers and controlling persons of the registrants pursuant to
the foregoing provisions, or otherwise, the registrants have been
II-5
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the registrants of expenses incurred or paid
by a director, officer or controlling person of the registrants
in the successful defense of any action, suit or proceeding) is
asserted against either of the registrants by such director,
officer or controlling person in connection with the securities
being registered, such registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-6
POWER OF ATTORNEY
The Registrant hereby appoints each Agent for Service named in
this Registration Statement as its attorney-in-fact to sign in
their name and behalf, and to file with the Commission any and
all amendments, including post-effective amendments, to this
Registration Statement, and each director and/or officer of the
Registrant whose signature appears below hereby appoints each
such Agent for Service as his attorney-in-fact with like
authority to sign in his name and behalf, in any and all
capacities stated below, and to file with the Commission, any and
all such amendments.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Spokane and State of Washington on the 18th day of November,
1996.
THE WASHINGTON WATER POWER COMPANY
By /s/ Paul A. Redmond
--------------------------------
Paul A. Redmond
Chairman of the Board and Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATE INDICATED.
Signature Title Date
----------------------- -------------- ------------
/s/ Paul A. Redmond
----------------------------- Principal November 18, 1996
Paul A. Redmond Executive
(Chairman of the Board and Officer
Chief Executive Officer and Director
/s/ J.E. Eliassen
----------------------------- Principal November 18, 1996
J.E. Eliassen Financial and
(Senior Vice President Accounting
and Chief Financial Officer) Officer
/s/ David A. Clack
----------------------------- Director November 18, 1996
David A. Clack
/s/ Duane B. Hagadone
----------------------------- Director November 18, 1996
Duane B. Hagadone
/s/ Eugene W. Meyer
----------------------------- Director November 18, 1996
Eugene W. Meyer
/s/ H. Nornam Schwarzkopf
----------------------------- Director November 18, 1996
General H. Norman Schwarzkopf
/s/ B. Jean Silver
----------------------------- Director November 18, 1996
B. Jean Silver
/s/ Larry A. Stanley
----------------------------- Director November 18, 1996
Larry A. Stanley
/s/ R. John Taylor
----------------------------- Director November 18, 1996
R. John Taylor
==================================================================
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Washington Water Power Capital I, Washington Water Power Capital
II and Washington Water Power Capital III certify that they have
reasonable grounds to believe that they meet all of the
requirements for filing on Form S-3 and have duly caused the
Registration Statement to be signed on their behalf by the
undersigned, thereunto duly authorized, in the City of Spokane
and State of Washington on the 18th day of November, 1996.
WASHINGTON WATER POWER CAPITAL I
By: THE WASHINGTON WATER POWER COMPANY, as Sponsor
By: /s/ Lawrence J. Pierce
-----------------------------------------------
Lawrence J. Pierce
Vice President and Treasurer
WASHINGTON WATER POWER CAPITAL II
By: THE WASHINGTON WATER POWER COMPANY, as Sponsor
By: /s/ Lawrence J. Pierce
-----------------------------------------------
Lawrence J. Pierce
Vice President and Treasurer
WASHINGTON WATER POWER CAPITAL III
By: THE WASHINGTON WATER POWER COMPANY, as Sponsor
By: /s/ Lawrence J. Pierce
-----------------------------------------------
Lawrence J. Pierce
Vice President and Treasurer
II-8
EXHIBIT 23(a)-1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Washington Water Power Company on
Form S-3 of our report dated January 26, 1996 (March 1, 1996, as
to Note 15) appearing in and incorporated by reference in the
Annual Report on Form 10-K of the Washington Water Power Company
for the year ended December 31, 1995, and to the reference to us
under the heading "Experts" in the Prospectus, which is part of ]
this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Seattle, Washington
November 18, 1996
II-9
EXHIBIT INDEX
Exhibit Description
------- -----------
1(a) Form of Underwriting Agreement for offering of
Preferred Securities.
*1(b) Form of Underwriting Agreement for offering of
Subordinated Debt Securities.
4(a)-1 Certificate of Trust of Washington Water Power
Capital I.
4(a)-2 Certificate of Trust of Washington Water Power
Capital II.
4(a)-3 Certificate of Trust of Washington Water Power
Capital III.
4(a)-4 Declaration of Trust of Washington Water Power
Capital I.
4(a)-5 Declaration of Trust of Washington Water Power
Capital II.
4(a)-6 Declaration of Trust of Washington Water Power
Capital III.
4(a)-7 Form of Amended and Restated Declaration of Trust
for Washington Water Power Capital I.
4(a)-8 Form of Amended and Restated Declaration of Trust
for Washington Water Power Capital II.
4(a)-9 Form of Amended and Restated Declaration of Trust
for Washington Water Power Capital III.
4(a)-10 Form of Indenture between The Washington Water Power
Company and Wilmington Trust Company, as Trustee.
4(a)-11 Form of Officer's Certificate to be used in connection
with the issuance of Subordinated Debt Securities and
Preferred Securities.
4(a)-12 Form of Preferred Security (included in 4(a)-7, 4(a)-8
and 4(a)-9 above).
4(a)-13 Form of Subordinated Debt Security (included in 4(a)-11
above).
4(a)-14 Form of Preferred Securities Guarantee issued by The
Washington Water Power Company for the benefit of the
holders of Preferred Securities of Washington Water
Power Capital I.
4(a)-15 Form of Preferred Securities Guarantee issued by The
Washington Water Power Company for the benefit of the
holders of Preferred Securities of Washington Water
Power Capital II.
4(a)-16 Form of Preferred Securities Guarantee issued by The
Washington Water Power Company for the benefit of the
holders of Preferred Securities of Washington Water
Power Capital III.
4(a)-17 Form of Agreement as to Expenses and Liabilities
between The Washington Water Power Company and
Washington Water Power Capital I.
4(a)-18 Form of Agreement as to Expenses and Liabilities
between The Washington Water Power Company and
Washington Water Power Capital II.
4(a)-19 Form of Agreement as to Expenses and Liabilities
between The Washington Water Power Company and
Washington Water Power Capital III.
5(a) Opinion and Consent of Paine, Hamblen, Coffin,
Brooke & Miller LLP.
5(b)
and 8(a) Opinion and Consent of Reid & Priest LLP.
5(c) Opinion and Consent of Richards, Layton & Finger, P.A.
**12 Computation of Ratio of Earnings to Fixed Charges of
The Washington Water Power Company (filed as Exhibit 12
to Form 10-Q for the quarter ended September 30, 1996
in File No. 1-3701).
23(a)-1 Consent of Deloitte & Touche LLP (included on page II-9
hereof).
23(a)-2 Consents of Paine, Hamblen, Coffin, Brooke & Miller
LLP, Reid & Priest LLP and Richards, Layton & Finger,
P.A. are contained in Exhibits 5(a), 5(b) and 5(c),
respectively.
24 Power of Attorney (included on page II-7 hereof).
25(a)-1 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as
Debt Trustee under the Indenture.
25(a)-2 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as
Institutional Trustee under the Amended and Restated
Declaration of Trust of Washington Water Power Capital I.
25(a)-3 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as
Institutional Trustee under the Amended and Restated
Declaration of Trust of Washington Water Power Capital II.
25(a)-4 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as
Institutional Trustee under the Amended and Restated
Declaration of Trust of Washington Water Power Capital III.
25(a)-5 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as
Preferred Securities Guarantee Trustee under the
Preferred Securities Guarantee of Washington Water
Power Company for the benefit of the holders of
Preferred Securities of Washington Water Power Capital I.
25(a)-6 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as
Preferred Securities Guarantee Trustee under the
Preferred Securities Guarantee of Washington Water
Power Company for the benefit of the holders of
Preferred Securities of Washington Water Power Capital II.
25(a)-7 Statement of Eligibility under the Trust Indenture Act
of 1939, as amended, of Wilmington Trust Company, as
Preferred Securities Guarantee Trustee under the
Preferred Securities Guarantee of Washington Water
Power Company for the benefit of the holders of
Preferred Securities of Washington Water Power Capital III.
--------------
* To be filed subsequently as an exhibit to a report on Form 8-K.
** Incorporated by reference herein.
II-10
Exhibit 1(a)
_________ Preferred Securities
WASHINGTON WATER POWER CAPITAL I
(a Delaware Trust)
__% Trust Originated Preferred Securities,(SM)
Series A ("TOPrS(SM)")
(Liquidation Amount of $25 Per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
___________, 199__
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
as Representative of the several Underwriters
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Washington Water Power Capital I (the "Trust"), a
statutory business trust created under the Business Trust Act
(the "Delaware Act") of the State of Delaware (Chapter 38, Title
12, of the Delaware Code, 12 Del. C. SECTION 3801 et seq.), and
-------
The Washington Water Power Company, a Washington corporation (the
"Company" and, together with the Trust, the "Offerors") confirm
their agreement (the "Agreement") with Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill
Lynch") and each of the other Underwriters named in Schedule A
hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in
Section 11 hereof), for whom Merrill Lynch is acting as
representative (in such capacity, Merrill Lynch shall
____________________
(SM) "Trust Originated Preferred Securities" and "TOPrS" are
service marks of Merrill Lynch & Co., Inc.
hereinafter be referred to as the "Representative"), with respect
to the sale by the Trust and the purchase by the Underwriters,
acting severally and not jointly, of the respective numbers of
___% Trust Originated Preferred Securities (liquidation amount of
$25 per preferred security) of the Trust ("Preferred Securities")
set forth in said Schedule A. The Preferred Securities will be
guaranteed by the Company with respect to distributions and
payments upon liquidation, redemption and otherwise (the
"Preferred Securities Guarantee") pursuant to the Preferred
Securities Guarantee Agreement (the "Preferred Securities
Guarantee Agreement"), dated as of _____________, ____, between
the Company and Wilmington Trust Company, as trustee (the
"Guarantee Trustee"), and entitled to the benefits of certain
backup undertakings described in the Prospectus (as defined
herein) with respect to the Company's agreement pursuant to the
Declaration (as defined herein) to pay all expenses relating to
the administration of the Trust. In certain circumstances, the
Trust may distribute Subordinated Debt Securities (as defined
herein) to holders of the Preferred Securities. The Preferred
Securities and the related Preferred Securities Guarantee are
referred to herein as the "Securities".
The Offerors understand that the Underwriters propose
to make a public offering of the Securities. The entire proceeds
from the sale of the Securities will be combined with the entire
proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities"), as guaranteed by the
Company, to the extent set forth in the Prospectus, with respect
to distributions and payments upon liquidation and redemption
(the "Common Securities Guarantee" and, together with the
Preferred Securities Guarantee, the "Guarantees") pursuant to the
Common Securities Guarantee Agreement (the "Common Securities
Guarantee Agreement" and, together with the Preferred Securities
Guarantee Agreement, the "Guarantee Agreements"), dated as of
___________________, ____, of the Company, and will be used by
the Trust to purchase the $____________ of ____% Subordinated
Debt Securities, Series A (the "Subordinated Debt Securities")
issued by the Company. The Preferred Securities and the Common
Securities will be issued pursuant to the Amended and Restated
Declaration of Trust of the Trust, dated as of __________, ____
(the "Declaration"), among the Company, as Sponsor, __________
and __________ (the "Regular Trustees") and Wilmington Trust
Company, a Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee) and as institutional trustee (the
"Institutional Trustee" and, together with the Regular Trustees
and the Delaware Trustee, the "Trustees"). The Subordinated Debt
Securities will be issued pursuant to an indenture, dated as of
_________, ____ (the "Indenture"), between the Company and
Wilmington Trust Company, as Trustee (the "Debt Trustee").
Section 1. Representations and Warranties of the
-------------------------------------
Offerors.
--------
The Offerors jointly and severally represent and
warrant to, and agree with, each of the several Underwriters
that:
(a) The Offerors have carefully prepared in conformity
with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") promulgated thereunder, and
have filed with the Commission, a registration statement on
Form S-3 (File Nos. 333-______ and 333-_______) for the
registration of $150,000,000 in aggregate amount of a
combination of the Company's and the Trust's securities,
including the Securities and the Subordinated Debt
Securities, and such Registration Statement has become
effective. A prospectus supplement setting forth the terms
of the Preferred Securities and the Subordinated Debt
Securities and of their sale and distribution (the
"Prospectus Supplement") has been or will be so prepared and
will be filed or transmitted for filing pursuant to Rule 424
under the Act. The Registration Statement (including
exhibits) in the form in which it became effective, and as
amended to the date hereof, is herein referred to as a
"Registration Statement"; the prospectus included as a part
of the Registration Statement, as such prospectus may have
been amended to the date hereof, is hereinafter referred to
as the "Basic Prospectus"; and the Basic Prospectus, as
supplemented by the Prospectus Supplement, is herein
referred to as the "Prospectus"; provided, however, that (i)
-------- -------
any reference herein to the terms "Registration Statement",
"Basic Prospectus", "Prospectus" or "Prospectus Supplement"
shall be deemed to refer to and include the documents
incorporated therein by reference pursuant to Item 12 of
Form S-3 under the Act and the information, if any, deemed
to be part thereof pursuant to Rule 430A(b) of the Rules
and Regulations, (ii) any reference to any amendment or
supplement to the Prospectus shall be deemed to refer to and
include any documents filed after the date of the Prospectus
pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and so incorporated by reference (all of such
documents so incorporated by reference referred to in clause
(i) above and this clause (ii) being hereinafter referred to
as the "Incorporated Documents"), (iii) if any revised
prospectus shall be provided to the Underwriters for use in
connection with the offering of the Securities which differs
from the prospectus on file with the Commission at the time
the Registration Statement became effective, the term
"Prospectus" shall refer to such revised prospectus from and
after the time it is first provided to the Underwriters for
such use, and (iv) no prospectus supplement to the Basic
Prospectus which relates to securities of the Company or the
Trust other than the Securities or the Subordinated Debt
Securities shall be deemed to be a part of the Basic
Prospectus or the Prospectus. The Offerors qualify for use
of Form S-3 for the registration of the securities.
(b) No order has been issued by the Commission
preventing or suspending the use of any prospectus relating
to the Securities; and the Registration Statement when it
became effective, and the Prospectus and any amendment or
supplement thereto, when filed or transmitted for filing
with the Commission and at the Closing Time (as defined
herein), complied or will comply in all material respects
with the applicable provisions of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the applicable Rules and Regulations and did not
or will not include an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, that the Offerors make no
-------- -------
representations or warranties as to (i) information
contained in or omitted from the Registration Statement or
the Prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished
in writing to the Offerors by any Underwriter, through the
Representative, specifically for use in the preparation
thereof or (ii) that part of the Registration Statement
which shall constitute the Statement of Eligibility (Form T-
1) under the Trust Indenture Act.
(c) The Incorporated Documents, when they were filed
with the Commission, complied in all material respects with
the applicable requirements of the Exchange Act and the
applicable rules and regulations of the Commission
thereunder, and none of such documents included an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and any additional
Incorporated Documents, when they are filed with the
Commission, will comply in all material respects with the
applicable requirements of the Exchange Act and the
applicable rules and regulations of the Commission
thereunder and will not include an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
are made, not misleading; provided, however, that the
-------- -------
Offerors make no representations or warranties as to
information contained in or omitted from any such documents
in reliance upon and in conformity with information
furnished in writing to the Offerors by any Underwriter,
through the Representative, specifically for use in the
preparation thereof.
(d) The financial statements included in the
Registration Statement and Prospectus present fairly the
financial condition of the Company as of the dates indicated
and the results of its operations and its cash flows for the
periods indicated. Except as may be specifically mentioned
in the Registration Statement and Prospectus, said financial
statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent
basis. Deloitte & Touche LLP, who has audited certain of
said financial statements, are independent public
accountants with respect to the Company as required by the
Act and the Rules and Regulations.
(e) Except as set forth in or contemplated by the
Prospectus, (i) since the date as of which information is
given in the Prospectus there has not been any material
adverse change in the condition of the Trust or the Company
and its subsidiaries as a whole, financial or otherwise,
(ii) since the date of the Prospectus there has not been any
transaction entered into by the Trust or the Company or any
subsidiary of the Company which is material to the Trust or
to the Company and its subsidiaries as a whole other than
transactions in the ordinary course of business, and (iii)
none of the Trust or the Company or any of the subsidiaries
of the Company has any contingent obligation which is
material to the Trust or the Company and its subsidiaries as
a whole.
(f) The Preferred Securities to be issued and sold by
the Trust hereunder conform in all material respects, or
will when issued so conform, to the description thereof in
the Prospectus and have been, or when issued as contemplated
hereby and in the Declaration will be, duly authorized and
validly issued, and, when so issued will be, subject to the
terms of the Declaration, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust
and will be entitled to the benefits of the Declaration.
The issuance of the Preferred Securities is not subject to
preemptive or other similar rights.
(g) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Act, with power and authority to own its properties
and conduct its business as described in the Prospectus and
to enter into and perform its obligations under this
Agreement and the Declaration. The Trust has no
subsidiaries and has been duly qualified for the transaction
of business and is in good standing under the laws of each
other jurisdiction in which qualification is required,
except where the failure to so qualify would not have a
material adverse effect on the Trust. The Trust is not a
party to or otherwise bound by any agreement other than
those described in the Prospectus. The Trust is and will be
treated as a consolidated subsidiary of the Company pursuant
to generally accepted accounting principles. The Trust is
and will be classified for United States federal income tax
purposes as a grantor trust and not as an association
taxable as a corporation.
(h) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Washington, with corporate power and
authority to own, lease and operate its properties and
conduct its business as described in the Prospectus, to
enter into and perform its obligations under this Agreement,
the Declaration, the Indenture and each of the Guarantees
and to purchase and hold the Common Securities, and the
Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under
the laws of each other jurisdiction in which qualification
is required, except where the failure to so qualify would
not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(i) Each of Pentzer Corporation, Washington Irrigation
& Development Company, WWP Energy Solutions, Inc. and WWP
Resource Services, Inc. is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction with corporate power and authority under such
laws to own, lease and operate its properties and conduct
its business.
(j) The Indenture has been and will at the Closing
Time be, duly authorized by the Company and qualified under
the Trust Indenture Act and at Closing Time will have been
duly executed and delivered by the Company and, assuming due
authorization, execution and delivery thereby by the Debt
Trustee, the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its
terms, except to the extent the enforcement of the Indenture
may be limited by any applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other
laws affecting creditors' rights generally, by general
principles of equity (whether asserted in an action in
equity or at law) and by rules of law governing specific
performance, injunctive relief, foreclosure, receivership
and other equitable remedies; and the Indenture will conform
in all material respects to the description thereof
contained in the Prospectus.
(k) The Subordinated Debt Securities have been duly
authorized, and when issued and delivered pursuant to this
Indenture, and duly authenticated by the Debt Trustee
pursuant to the Indenture, will have been duly executed,
authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture and
enforceable in accordance with their terms, except to the
extent the enforcement of the Subordinated Debt Securities
may be limited by any applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other
laws affecting creditors' rights generally, by general
principles of equity (whether asserted in an action in
equity or at law) and by rules of law governing specific
performance, injunctive relief, foreclosure, receivership
and other equitable remedies; and the Subordinated Debt
Securities will conform in all material respects to the
description thereof contained in the Prospectus.
(l) The Declaration has been and will at the Closing
Time be, duly authorized by the Company and qualified under
the Trust Indenture Act and at Closing Time will have been
duly executed and delivered by the Company and the Regular
Trustees, and assuming due authorization, execution and
delivery thereof by the Delaware Trustee and by the
Institutional Trustee, the Declaration will, at Closing
Time, be a valid and legally binding instrument enforceable
against the Company and the Regular Trustees in accordance
with its terms, except to the extent the enforcement of the
Declaration may be limited by any applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium or other laws affecting creditors' rights
generally, by general principles of equity (whether asserted
in an action in equity or at law) and by rules of law
governing specific performance, injunctive relief,
foreclosure, receivership and other equitable remedies; and
the Declaration will conform in all material respects to the
description thereof contained in the Prospectus.
(m) Each of the Guarantee Agreements has been and will
at the Closing Time be, duly authorized by the Company and,
in the case of the Preferred Securities Guarantee, qualified
under the Trust Indenture Act and, when executed and
delivered by the Company and the Guarantee Trustee (as
appropriate), will constitute valid and legally binding
instruments, enforceable against the Company in accordance
with its terms, except to the extent enforcement of the
Guarantee Agreements may be limited by any applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws affecting
creditors' rights generally, by general principles of equity
(whether asserted in an action in equity or at law) and by
rules of law governing specific performance, injunctive
relief, foreclosure, receivership and other equitable
remedies; each of the Guarantees and the Guarantee
Agreements will conform in all material respects to the
descriptions thereof contained in the Prospectus.
(n) The Common Securities to be issued and delivered
by the Trust to the Company against payment therefor as
described in the Registration Statement and Prospectus
conform in all material respects, or will when issued so
conform, to the description thereof in the Prospectus, and
have been, or when issued as contemplated by the Declaration
will be, duly authorized and validly issued and, when so
issued, subject to the terms of the Declaration, will be
fully paid and nonassessable undivided beneficial interests
in the assets of the Trust. The issuance of the Common
Securities is not subject to preemptive or other similar
rights; and at Closing Time all of the issued and
outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(o) Each of the Regular Trustees of the Trust is an
employee of the Company and has been duly authorized by the
Company to execute and deliver the Declaration.
(p) The Trust is not in violation of the Declaration
or its certificate of trust, filed with the Secretary of
State of the State of Delaware on November 4, 1996 (the
"Certificate of Trust"). The execution, delivery and
performance by the Company and the Trust of their respective
obligations under this Agreement, the Declaration, the
Preferred Securities, the Common Securities, the Indenture,
the Subordinated Debt Securities and the Guarantee
Agreements and the consummation of the transactions
contemplated herein and therein and compliance by the
Offerors with their respective obligations hereunder and
thereunder will not result in a breach or violation of any
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or the Trust is
a party or by which the Company or the Trust is bound or
which any of the property or assets of the Company or the
Trust are subject, nor will such action result in any
violation of the provisions of any statute or the Restated
Articles of Incorporation, as amended, of the Company, or
the Bylaws, as amended, of the Company or the Certificate of
Trust or the Declaration or, to the best of the Company's
and the Trust's knowledge, information or belief, any order,
rule or regulation of any court or any federal or state
regulatory authority or other governmental agency or body
having jurisdiction over the Company or the Trust or any of
their properties;
(q) This Agreement has been duly authorized, executed
and delivered by each of the Offerors.
(r) The Company has filed or will file with the
Washington Utilities and Transportation Commission, the
California Public Utilities Commission, the Idaho Public
Utilities Commission and the Public Utility Commission of
Oregon appropriate applications and any required amendment
or amendments thereto for orders authorizing the issuance
and sale of the Preferred Securities Guarantee and the
Subordinated Debt Securities on the terms set forth in or
contemplated by this Agreement; and no other consent,
approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body is required for the offering, issuance or sale of the
Common Securities, the Preferred Securities, Subordinated
Debt Securities or the Guarantee Agreements hereunder or the
consummation by the Company and the Trust of the other
transactions contemplated by this Agreement, except such as
have been, or will have been prior to the Closing Time,
obtained under the Act or the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws.
(s) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or to which any property of the Company or any of its
subsidiaries is subject which, if determined adversely to
the Company or any of its subsidiaries, would individually
or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries;
and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(t) None of the Offerors is and, after giving effect
to the offering and sale of the Preferred Securities, will
be, an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
Section 2. Sale and Purchase.
-----------------
On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein
set forth, the Trust agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and
not jointly, agrees to purchase from the Trust, the number of
Preferred Securities set forth in Schedule A opposite the name of
such Underwriter, plus any additional number of Preferred
Securities that such Underwriter may become obligated to purchase
pursuant to the provisions of Section 11 hereof, at the price per
security set forth in Schedule B hereto.
Section 3. Delivery and Payment.
--------------------
Certificates for the Preferred Securities will be
delivered to the Representative for the accounts of the several
Underwriters at the offices of Reid & Priest LLP, 40 West 57th
Street, New York, N.Y., against payment of the purchase price
therefor by certified or official bank check, payable to the
order of the Trust in New York Clearing House funds or similar
next day funds, at 10:00 A.M., New York time, on the date
specified in Schedule B hereto (or if the New York and American
Stock Exchanges and commercial banks in the City of New York are
not open on such day, the next day on which such exchanges and
banks are open), or at such other time not later than eight full
business days thereafter as the Representative and the Offerors
determine. The hour and date of such delivery and payment are
hereinafter called the "Closing Time".
Certificates for the Preferred Securities shall be in
definitive form and registered in such names and denominations as
the Representative may request in writing not later than 10:00
A.M., New York time, on the second full business day prior to the
Closing Time or, if no such instructions shall have been received
by that time, in the names of the several Underwriters in such
authorized denominations as the Offerors may determine.
The certificates for the Preferred Securities shall be
delivered to the Representative through the facilities of the
Depository Trust Company in New York, New York ("DTC") for the
account of the Representative against payment of the purchase
price therefor. For the purpose of expediting the checking and
packaging of the certificates evidencing the Preferred Securities
by the Representative on behalf of the several Underwriters, the
Offerors agree to make such certificates available to the
Representative for such purpose at the offices of DTC, not later
than 2:00 P.M., New York time, on the first full business day
prior to the Closing Date.
It is understood that the person, firm or corporation
acting as the Representative, individually and not as the
Representative of the several Underwriters, may (but shall not be
obligated to) make payment to the Offerors on behalf of any
Underwriter whose check shall not have been received by the
Representative at the time of delivery of the Preferred
Securities to be purchased by such Underwriter. No such payment
by such person, firm or corporation shall relieve any such
Underwriter of any of its obligations hereunder.
At the Closing Time, the Trust agrees to pay, or cause
to be paid, a commission payable at such time to the Underwriters
in an amount specified in Schedule B hereto by or certified or
official bank check or checks payable to Merrill Lynch, Pierce,
Fenner & Smith Incorporated in New York Clearing House funds or
other similar next day funds.
Section 4. Covenants of the Offerors.
-------------------------
Each of the Offerors jointly and severally covenant
with each Underwriter:
(a) At the earliest practicable time after the
execution of this Agreement, to file or transmit for filing
the Prospectus Supplement with the Commission pursuant to
Rule 424 of the Rules and Regulations and to notify the
Representative by telephone promptly after the Prospectus
Supplement has been so filed or transmitted for filing; and
to notify the Representative by telephone, promptly after
they shall receive notice thereof, of the time when any
amendment to the Registration Statement has become effective
or any supplement to the Prospectus has been filed with the
Commission or transmitted for filing. The Company will
timely file all documents required to be filed by the
Company with the Commission pursuant to the Exchange Act
subsequent to the effective date of the Registration
Statement and for so long as the delivery of a Prospectus is
required in connection with the offering or sale of the
Securities. The Offerors will not file any amendment or
supplement to the Registration Statement or the Prospectus
to which the Representative shall reasonably object by
notice to the Offerors after having been furnished with
copies a reasonable time prior to filing.
(b) To give the Representative immediate advice, and
to confirm the advice in writing, of any request received by
the Offerors from the Commission for amendment of the
Registration Statement or supplements to the Prospectus or
for additional information with respect thereto, and of the
institution by the Commission of any proceedings for, or any
issuance by the Commission of, a stop order suspending the
effectiveness of the Registration Statement, and to make
every reasonable effort to prevent the issuance of any such
stop order or to obtain the prompt withdrawal of any such
stop order which may be issued.
(c) To deliver to the Representative, at or before the
Closing Time, one signed copy of the Registration Statement
as initially filed and of each amendment thereto including
all exhibits filed therewith or incorporated therein by
reference and not previously furnished and of the
Incorporated Documents and to furnish to the Representative
upon request, at the earliest practicable time following the
filing thereof, such number of conformed copies of the
Registration Statement as initially filed and of each
amendment or supplement thereto without exhibits for each of
the Underwriters.
(d) To furnish the Underwriters through or upon the
order of the Representative, with copies of the Prospectus
in such quantities as the Representative may from time to
time reasonably request, and if the delivery of a Prospectus
is required at any time prior to the expiration of nine
months after the effective date of the Registration
Statement and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made when such
Prospectus is delivered, not misleading, or if for any other
reason it shall be necessary to amend or supplement the
Prospectus in order to comply with the Act, promptly to
notify the Representative and upon request of the
Representative to amend or supplement the Prospectus by
either (i) preparing and furnishing without charge to each
Underwriter and to any dealer in securities, upon the order
of the Representative, as many copies as the Representative
may from time to time reasonably request of an amended
Prospectus or a supplement to be attached to or furnished
with the Prospectus or (ii) making an appropriate filing
pursuant to Section 13 or 14 of the Exchange Act, which, in
the case of both clauses (i) and (ii), will correct such
statement or omission or effect such compliance, provided
that should such event relate solely to activities of any
Underwriter, then such Underwriter shall assume the expense
of preparing and furnishing any such amendment or
supplement.
(e) To make generally available to the Trust's
security holders, as promptly as may be practicable, an
earning statement of the Company in reasonable detail (which
need not be audited) covering a period of twelve consecutive
months beginning on the first day of the month next
succeeding the date upon which the Prospectus Supplement is
filed or transmitted for filing pursuant to Rule 424 under
the Act, which earnings statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158
thereunder.
(f) During a period of five years from the date of
this Agreement, to deliver to the Representative and, upon
request, to each of the other Underwriters, a copy of each
annual and interim report of the Company to its
stockholders, and to deliver to the Representative quarterly
balance sheets and statements of income and retained
earnings (which need not be audited) and annual balance
sheets and statements of income and retained earnings (which
shall be audited) of the Company, and copies of all such
documents, reports and information as shall be of general
interest which shall be furnished by the Company to its
stockholders. To the extent the accounts of the Company and
its subsidiaries are consolidated, such financial statements
shall be furnished on a consolidated basis.
(g) To cooperate with the Representative in
qualifying the Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the
Representative may reasonably designate; provided, however,
that none of the Offerors shall be required to qualify as a
foreign corporation or to file a general consent to service
of process in any jurisdiction, or to comply with any other
requirement reasonably deemed by either of them to be unduly
burdensome. The Offerors will, from time to time, prepare
and file such statements and reports as are or may be
required to continue such qualifications in effect for so
long a period as the Representative may reasonably request,
but in no event beyond the last day of the calendar month in
which the first anniversary of the date of this Agreement
shall fall.
(h) To use all reasonable efforts to effect the
listing of the Preferred Securities (including the Preferred
Securities Guarantee with respect thereto) on the New York
Stock Exchange.
(i) During the period beginning from the date of this
Agreement and continuing for a period of thirty (30) days
from the date of this Agreement, not to sell, offer to sell,
or otherwise dispose of, any Preferred Securities, any
security convertible into or exchangeable into or
exercisable for Preferred Securities or Subordinated Debt
Securities or any other securities substantially similar to
the Subordinated Debt Securities or the Preferred Securities
(except for the Subordinated Debt Securities and the
Preferred Securities) without the prior consent of the
Representative; provided, however, that nothing herein shall
be deemed to restrict the offer or sale by the Company of
any debt issued under its Mortgage and Deed of Trust, dated
as of June 1, 1939, from the Company to Citibank, N.A., as
trustee.
Section 5. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the
performance of each Offerors' obligations under this Agreement,
including, but not limited to, (i) the preparation and filing of
the Registration Statement as originally filed and of each
amendment thereto, (ii) the preparation, issuance and delivery of
the certificates for the Preferred Securities to the
Underwriters, (iii) the fees and disbursements of the Company's
and the Trust's counsel and accountants, (iv) the qualification
of the Securities and the Subordinated Debt Securities under
securities laws in accordance with the provisions of Section 4(g)
hereof, including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky survey and any
legal investment survey, (v) the printing and delivery to the
Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of each
preliminary prospectus, and of the Prospectus and any amendments
or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of any Blue Sky survey and any legal
investment survey, (vii) the fee, if any, of the National
Association of Securities Dealers, Inc., (viii) the fees and
expenses of the Debt Trustee, including the fees and
disbursements of counsel for the Debt Trustee in connection with
the Indenture and the Subordinated Debt Securities, (ix) the fees
and expenses of the Institutional Trustee, the Delaware Trustee
and the Guarantee Trustee, including the fees and disbursements
of counsel for the Institutional Trustee in connection with the
Declaration and the Certificate of Trust, (x) any fees payable in
connection with the rating of the Preferred Securities and the
Subordinated Debt Securities, (xi) the fees and expenses incurred
in connection with the listing of the Preferred Securities and,
if applicable, the Subordinated Debt Securities on the New York
Stock Exchange, (xii) the cost and charges of any transfer agent
or registrar, and (xiii) the cost of qualifying the Preferred
Securities with DTC.
If this Agreement is terminated by the Representative
in accordance with the provisions of Section 6 or Section 10
hereof, the Company shall reimburse the Underwriters for all out-
of-pocket expenses (including the reasonable fees and
disbursements of counsel for the Underwriters), but not exceeding
[$ ], reasonably incurred by them in contemplation of the
performance of this Agreement. In no event shall the Company or
the Trust be liable to any Underwriter for damages for loss of
anticipated profits from the transactions contemplated by this
Agreement.
Section 6. Conditions of Underwriters'
---------------------------
Obligations.
-----------
The obligations of the several Underwriters shall be
subject (i) to the accuracy, at and as of the Closing Time, of
the representations and warranties of the Offerors herein
contained, (ii) to the performance by the Offerors of their
obligations hereunder as are to be performed at or prior to the
Closing Time, and (iii) to the following further conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued prior to the
Closing Time; no proceedings for that purpose shall have
been initiated or be pending before, or to the knowledge of
the Offerors or the Representative contemplated by, the
Commission at the Closing Time; and any request of the
Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall
have been complied with to the satisfaction of the
Representative.
(b) At or before 1:00 P.M., New York time, on the
second business day following the date of this Agreement, or
at such later time and date as may be agreed upon in writing
by the Representative, there shall have been issued, and at
the Closing Time there shall be in full force and effect,
appropriate orders of the Washington Utilities and
Transportation Commission, the California Public Utilities
Commission, the Idaho Public Utilities Commission and the
Public Utility Commission of Oregon permitting the issuance
and sale of the Preferred Securities Guarantee and the
Subordinated Debt Securities on the terms herein set forth
or contemplated, and containing no provision reasonably
unacceptable to the Representative (it being understood that
no such order in effect on the date of this Agreement
contains any such unacceptable provision).
(c) At the Closing Time, the Representative shall have
received from Paine, Hamblen, Coffin, Brooke & Miller LLP,
of Spokane, Washington, general counsel for the Company , an
opinion, dated as of the Closing Time, substantially in the
form of Exhibit 1 hereto.
(d) At the Closing Time, the Representative shall have
received from Reid & Priest LLP, of New York, New York,
counsel for the Offerors, an opinion, dated as of the
Closing Time, substantially in the form of Exhibit 2 hereto.
(e) At the Closing Time, the Representative shall have
received from Richards, Layton & Finger, P.A., special
Delaware counsel to the Offerors, an opinion, dated as of
the Closing Time, substantially in the form of Exhibit 3
hereto.
(f) At the Closing Time, the Representative shall have
received from Richards, Layton & Finger, P.A., counsel to
Wilmington Trust Company, as Institutional Trustee under the
Declaration, and Guarantee Trustee under the Preferred
Securities Guarantee Agreement, an opinion, dated as of the
Closing Time, substantially in the form of Exhibit 4 hereto.
(g) At the Closing Time, the Representative shall have
received the opinion of Sullivan & Cromwell, New York, New
York, counsel for the several Underwriters, in form and
substance satisfactory to the Representative with respect to
the incorporation and legal existence of the Company, the
formation and legal existence of the Trust, the Preferred
Securities, the Indenture, the Preferred Securities
Guarantee Agreement, this Agreement, the Registration
Statement, the Prospectus and other related matters as the
Representative may reasonably require.
In rendering such opinions, Reid & Priest LLP and
Sullivan & Cromwell may assume the conclusions of Delaware law
relating to the Trust, the Preferred Securities and the
Declaration set forth in the opinion of Richards, Layton &
Finger, P.A., special Delaware counsel for the Offerors, which
shall be delivered in accordance with Section 6(e) hereto, and as
to the incorporation of the Company and as to all other matters
of Washington, California, Idaho, Montana or Oregon law, may
assume the conclusions set forth in the opinion of Paine,
Hamblen, Coffin, Brooke & Miller LLP which shall be delivered in
accordance with Section 6(c) hereto.
(h) At the Closing Time, the Representative shall have
received from Deloitte & Touche LLP a letter, dated as of
Closing Time, substantially to the effect set forth in
Exhibit 5 hereto.
(i) At the Closing Time, the Preferred Securities
shall be rated in one of the four highest rating categories
for long term debt ("Investment Grade") by any nationally
recognized statistical rating agency (as defined for
purposes of Rule 436(g) under the Act), and the Trust shall
have delivered to the Representative a letter, dated the
Closing Time, from such nationally recognized statistical
rating agency, or other evidence satisfactory to the
Representative, confirming that the Preferred Securities and
the Subordinated Debt Securities have Investment Grade
ratings.
(j) At the Closing Time, the Preferred Securities
shall have been approved for listing on the New York Stock
Exchange upon notice of issuance.
(k) At the Closing Time, the Representative shall have
received certificates, dated the Closing Time, from the
Chairman of the Board of Directors, the President, any Vice
President or the Treasurer of the Company and from a Regular
Trustee of the Trust, to the effect that, to the best of his
knowledge based on a reasonable investigation:
(i) no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
are pending or contemplated under the Act;
(ii) except as set forth in or contemplated by the
Prospectus, (A) since the date of the Prospectus there
has not been any material adverse change in the
condition of the Trust or the Company and its
subsidiaries as a whole, financial or otherwise, or in
the business prospects of the Company and its
subsidiaries as a whole (B) since the date of the
Prospectus there has not been any transaction entered
into by the Trust or the Company or any subsidiary of
the Company which is material to the Trust or the
Company and its subsidiaries as a whole other than
transactions in the ordinary course of business, and
(C) none the Trust or the Company or any subsidiaries
of the Company has any contingent obligation which is
material to the Trust or the Company and its
subsidiaries as a whole; and
(iii) the representations and warranties on the
part of the Company and the Trust contained in this
Agreement are true and correct as if made on and as of
the Closing Time, and the Trust and the Company have in
all material respects complied with all of the
agreements and satisfied all of the conditions on its
part to be performed or satisfied under this Agreement
at or prior to the Closing Time.
(l) At or prior to the Closing Time, the Offerors
shall have furnished to the Representative such further
certificates as the Representative shall reasonably request.
The opinions and certificates mentioned in this
Agreement shall be deemed to be in compliance with the provisions
hereof only if they are in all material respects satisfactory to
the Representative.
If any condition specified in this Section shall not
have been fulfilled, this Agreement may be terminated by the
Representative without liability of any party to any other party,
except for the obligation of the Company to pay certain expenses
to the extent provided in Section 5 hereof and except for any
liability under Sections 8 and 9 hereof.
Section 7. Conditions of Offerors'
-----------------------
Obligations.
-----------
The obligations of the Offerors to sell and deliver the
Securities and such of the other obligations of the Offerors
hereunder as are to be performed by them at or prior to the
Closing Time shall be subject to the following conditions:
(a) At the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall be in
effect and no proceedings for that purpose shall be pending
before, or to the knowledge of the Offerors or the
Representative contemplated by, the Commission.
(b) At or before 1:00 P.M., New York time, on the
second business day following the date of this Agreement, or
at such later time and date as may be agreed upon in writing
by the Offerors, there shall have been issued, and at the
Closing Time there shall be in full force and effect,
appropriate orders of the Washington Utilities and
Transportation Commission, the California Public Utilities
Commission, the Idaho Public Utilities Commission and the
Public Utility Commission of Oregon permitting the issuance
and sale of the Preferred Securities, the Preferred
Securities Guarantee and the Subordinated Debt Securities on
the terms herein set forth or contemplated, and containing
no provision reasonably unacceptable to the Offerors (it
being understood that no such order in effect on the date of
this Agreement contains any such unacceptable provision).
If any of the conditions specified above in this
Section shall not have been fulfilled, this Agreement may be
terminated by the Offerors without liability on the part of any
party to any other party, except for the obligation of the
Offerors to pay certain expenses to the extent provided for in
Section 5 hereof and except for any liability under Sections 8
and 9 hereof.
Section 8. Indemnification.
---------------
(a) The Offerors agree to jointly and severally
indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of
a material fact contained in the Registration
Statement, the Basic Prospectus or the Prospectus (or
any amendment or supplement thereto), including the
omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make
the statements therein not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of
any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such
untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expenses whatsoever
incurred (including, subject to Section 8(c) hereof,
the fees and disbursements of counsel chosen by the
Representative) reasonably incurred, in investigating,
preparing or defending against any litigation or any
investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or
omission or alleged untrue statement or omission, to
the extent that any such expense is not paid under (i)
or (ii) above;
provided, however, that this indemnity agreement shall not
-------- -------
apply to any loss, liability, claim, damage or expense to
the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to
the Trust or the Company by any Underwriter through the
Representative specifically for use in the Registration
Statement (or any amendment thereto), the Basic Prospectus
or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto); and provided, further,
-------- -------
that, insofar as it relates to the Basic Prospectus, the
indemnity agreement contained in this subsection (a) shall
not inure to the benefit of any Underwriter on account of
any loss, liability, claim, damage or expense whatsoever (or
actions in respect thereof) arising from the sale of
Securities by such Underwriter to any person if a copy of
the Prospectus shall not have been sent or given to such
person with or prior to the written confirmation of the sale
involved to the extent that the Prospectus, if so sent or
delivered, would have cured the defect in the Basic
Prospectus giving rise to such loss, liability, claim,
damage or expense; and provided, further, that if, at any
-------- -------
time after the date of filing the Prospectus or any
amendment or supplement to the Prospectus with the
Commission, any event shall have occurred as a result of
which the Prospectus as then amended or supplemented
("Current Prospectus") would include an untrue statement of
a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made when such
Prospectus is delivered, not misleading, and if the Offerors
shall have furnished to any Underwriter copies of an amended
Prospectus ("amended Prospectus") or of a supplement to be
attached to or furnished with the current Prospectus
("Supplement"), to which the Representative shall not have
objected pursuant to Section 4(a) hereof, for delivery in
connection with offers and sales of the Securities, the
indemnity agreement contained in this Section 8, insofar as
it relates to the current Prospectus, shall not inure to the
benefit of such Underwriter on account of any loss,
liability, claim, damage or expense (or actions in respect
thereof) arising from the sale of Securities by such
Underwriter to any person subsequent to the time such copies
have been so furnished to such Underwriter, if a copy of the
amended Prospectus or the Supplement, as the case may be,
shall not have been sent or given to such person with or
prior to the written confirmation of the sale involved, to
the extent that the amended Prospectus or the Supplement, if
so sent or delivered, would have cured the defect in the
current Prospectus giving rise to such loss, liability,
claim, damage or expense.
(b) The Company agrees to indemnify the Trust against
any and all loss, liability, claim, damage and expense
whatsoever, as incurred and as due from the Trust under
Section 8(a) hereof.
(c) Each Underwriter severally agrees to indemnify and
hold harmless the Offerors, their directors, trustees, each
of their officers and trustees who signed the Registration
Statement and each person, if any, who controls the Company
within the meaning of Section 15 under the Act against any
and all loss, liability, claim, damage and expense
whatsoever described in the indemnity contained in Section
8(a) hereof, as incurred, but only with respect to untrue
statements or omissions made in the Registration Statement
(or any amendment thereto), the Basic Prospectus or any
preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by any
Underwriter through the Representative specifically for use
in the Registration Statement (or any amendment thereto),
the Basic Prospectus or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(d) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying
party from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party
may participate at its own expense in the defense of any
action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in
addition to local counsel) separate from their own counsel
for all indemnified parties in connection with any one
action or separate but similar or related actions in the
same jurisdiction arising out of the same general
allegations or circumstances.
Section 9. Contribution. In order to provide for just
------------
and equitable contribution in circumstances in which the
indemnity agreement provided for in Section 8 is for any reason
held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Offerors and the
Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Offerors
and one or more of the Underwriters, as incurred, in such
proportion as is appropriate to reflect the relative benefits
received by the Trust and the Company on the one hand and the
Underwriters on the other from the offering of the Securities
from which such loss, liability, claim, damage or expense relates
and the relative fault of the Trust and the Company on the one
hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations. The relative benefits
received by the Trust and the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before
deducting expenses) received by the Trust and the Company bear to
the total underwriting discounts and commissions received by the
Underwriters in each case as set forth on the cover page of the
Prospectus. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading
relates to information supplied by the Trust and the Company on
the one hand or by the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Trust, the
Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable
considerations referred to above in this Section. The amount
paid or payable by an indemnified party as a result of the
losses, liabilities, claims, damages or expenses (or actions in
respect thereof) referred to above in this Section 9 shall be
deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total
price at which the Preferred Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters to contribute are several in
proportion to their respective underwriting obligations with
respect to the Preferred Securities and not joint. For purposes
of this Section 9, each person, if any, who controls an
Underwriter within the meaning of Section 15 under the Act shall
have the same rights to contribution as such Underwriter and each
director of the Company, each Trustee of the Trust, each officer
of the Company and each Trustee of the Trust who signed the
Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 under the Act shall have
the same rights to contribution as the Offerors.
Section 10. Termination.
-----------
(a) The Representative shall have the right to
terminate this Agreement by giving the notice hereinafter
specified at any time at or prior to the Closing Time if (i)
trading in securities generally on the New York Stock
Exchange shall have been generally suspended or materially
limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either
federal or New York authorities, (iii) there is the outbreak
of major hostilities or the major escalation of existing
hostilities so as to result in major hostilities, or the
declaration by the United States of a national emergency or
war, or other national or international calamity or crisis,
or (iv) there shall have occurred any downgrading in the
rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization" (as
that term is defined for purposes of Rule 436 under the Act)
or any such organization shall have publicly announced or
shall have informed the Company that it has placed any of
the Company's outstanding debt securities or preferred stock
on what is commonly termed a "watch list" for possible
downgrading; provided, however, that in the case of any
event described in clause (iii) or clause (iv) above, the
effect of such event, in the reasonable judgment of the
Underwriters, shall be to make it impracticable or
inadvisable to market and sell the Securities, or to enforce
contracts for the sale of the Securities, upon the terms
specified in the Prospectus.
(b) If the Representative elects to terminate this
Agreement as provided in this Section, the Company and each
Underwriter shall be notified promptly by the Representative
by telephone or telegram, confirmed by letter.
Section 11. Substitution of Underwriters.
----------------------------
(a) If any Underwriter or Underwriters shall fail to
take up and pay for the number of Preferred Securities
agreed by such Underwriter or Underwriters to be purchased
hereunder upon tender of such Preferred Securities in
accordance with the terms hereof, and the aggregate number
of Preferred Securities which such defaulting Underwriter or
Underwriters so fail to purchase does not exceed 10% of the
aggregate number of Preferred Securities agreed to be
purchased hereunder, the Representative shall have the right
to postpone the time for delivery of the Preferred
Securities as hereinafter provided but the remaining
Underwriters shall be obligated severally and not jointly,
in proportion to their respective purchase obligations
hereunder or in such proportions as may be agreed upon among
them, to take up and pay for, at the Closing Time, the
number of Preferred Securities which the defaulting
Underwriters agreed but failed to purchase; or
(b) If the aggregate number of Preferred Securities
which such defaulting Underwriter or Underwriters so fail to
purchase exceeds 10% of the aggregate number of Preferred
Securities, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter.
(c) If it shall be arranged for the remaining
Underwriters or substituted purchasers to take up the
Preferred Securities of the defaulting Underwriter or
Underwriters as provided in Section 11(a) hereof, (i) the
Representative or the Offerors shall have the right to
postpone the Closing Time for a period of not more than
seven full business days from the date specified in Section
3 hereof in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and
the Offerors agree promptly to file any amendments to the
Registration Statement or supplements to the Prospectus
which may thereby be made necessary, and (ii) the respective
number of Preferred Securities to be purchased by the
remaining Underwriters or substituted purchasers shall be
taken as the basis of their respective purchase obligations
for all purposes of this Agreement.
(d) Nothing contained in this Section 11 or elsewhere
in this Agreement shall relieve any defaulting Underwriter
of its liability to the Offerors for damages occasioned by
its default hereunder.
(e) The term "Underwriter" as used in this Agreement
shall refer to and include any purchaser substituted under
this Section 11 with like effect as if such substituted
purchaser had originally been named in Schedule A annexed
hereto.
Section 12. Representations to Survive
--------------------------
Delivery.
--------
All representations and warranties contained herein or
in certificates delivered pursuant hereto and all covenants and
agreements herein not fully performed before delivery of the
Preferred Securities to the Underwriters shall remain operative
and in full force and effect regardless of any investigation made
by or on behalf of any Underwriter or any controlling person, or
by or on behalf of the Offerors, and shall survive delivery of
the Preferred Securities to the Underwriters.
Section 13. Notices.
-------
Except as provided herein, all communications hereunder
shall be in writing and shall be deemed to have been duly given
if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
to the Representative at Merrill Lynch World Headquarters, North
Tower, World Financial Center, New York, New York 10281-1201,
Attention: Russell Robertson, Senior Managing Director; notices
to the Trust or the Company shall be directed to them at The
Washington Water Power Company, 1411 East Mission Avenue,
Spokane, Washington, 99202, Attention: Treasurer.
Section 14. Successors.
----------
This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Trust and the Company and
their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the
Trust and the Company and their respective successors and the
controlling persons and officers, directors and trustees referred
to in Sections 8 and 9 any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive
benefit of the Underwriters, the Trust and the Company and their
respective successors, and said controlling persons and officers,
directors and trustees and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. The
term "successor" shall not include any purchaser of Securities
merely because of such purchase.
Section 15. Governing Law and Time.
----------------------
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as
otherwise set forth herein, specified times of day refer to New
York City time.
Section 16. Counterparts.
------------
This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same
instrument.
Section 17. Representative to Act for the Several
-------------------------------------
Underwriters.
------------
The Representative will act for the several
Underwriters in connection with this financing, and any action
under this Agreement taken by the Representative will be binding
upon all the Underwriters. The Repre-sentative represents that
it has been authorized to execute this Agreement by the several
Underwriters named in Schedule A hereto.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Trust a counterpart hereof, whereupon this instrument, along with
all counterparts, will become a binding agreement between the
Underwriters and the Trust and the Company in accordance with its
terms.
Very truly yours,
THE WASHINGTON WATER POWER COMPANY
By---------------------------------
Title:
WASHINGTON WATER POWER CAPITAL I
By---------------------------------
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By--------------------------------------
Authorized Signatory
For itself and as Representative of the other
Underwriters named in Schedule A hereto.
SCHEDULE A
Number
Name of Underwriter of Securities
------------------- -------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . .
SCHEDULE B
INFORMATION REGARDING THE
PREFERRED SECURITIES AND THE SALE THEREOF
-----------------------------------------
1. Title of Preferred Securities:
-----------------------------
2. Registration Statement Nos.: 333-______ and 333-______
----------------------------
3. Aggregate Number of Securities:
------------------------------
4. Stated Value of Securities: $25 per security or $_________
--------------------------
total
5. Price Per Security to be Paid to Company: $___, plus
----------------------------------------
accrued distributions, if any, from the date of issuance.
6. Initial Public Offering Price per Security:
------------------------------------------
7. Closing Time:
------------
8. Compensation Payable to Underwriters:
------------------------------------
EXHIBIT 1
FORM OF OPINION OF PAINE, HAMBLEN, COFFIN, BROOKE & MILLER LLP
________________, 199___
[Names and Addresses of Underwriters]
Dear Sirs:
This opinion is being delivered to you pursuant to Section
6(d) of the Underwriting Agreement, dated _________, 1996 (the
"Underwriting Agreement"), among you as Representative of the
Underwriters and The Washington Water Power Company, a Washington
corporation (the "Company"), and Washington Water Power Capital
I, a statutory business trust created under the Business Trust
Act of the State of Delaware (the "Trust"), relating to (i) the
issuance and sale by the Trust to the Underwriters of
$___________________ in aggregate liquidation amount of _____%
Trust Originated Preferred Securities (liquidation amount of $25
per Preferred Security) (the "Preferred Securities"), issued
pursuant to the Declaration and guaranteed pursuant to the
Preferred Securities Guarantee Agreement, dated as of __________,
by and between the Company, as guarantor, and Wilmington Trust
Company, as preferred guaranty trustee, and (ii) the related
issuance and sale by the Company to the Trust of $___________ in
aggregate principal amount of Junior Subordinated Deferrable
Interest Debentures, ____% Series due ____ (the "Subordinated
Debt Securities"), to be issued under an Indenture, dated as of
____________________, by and between the Company and Wilmington
Trust Company as trustee (the "Debt Trustee").
Capitalized terms used herein but not otherwise defined
herein shall have the meaning ascribed to them in the
Underwriting Agreement. The Declaration, the Indenture
(including the Officer's Certificate establishing the terms of
the Subordinated Debt Securities), the Subordinated Debt
Securities and the Guarantee Agreements are sometimes
collectively referred to herein as the "Company Documents".
In connection with rendering this opinion, we have examined,
or are generally familiar with, the following: (a) the Restated
Articles of Incorporation, as amended, and the Bylaws, as
amended, of the Company; (b) the Underwriting Agreement; (c) the
Company Documents; (d) the Preferred Securities; (e) the Common
Securities; (f) a Certificate of Existence/Authorization issued
by the Secretary of State of Washington, a Certificate of
Corporate Status issued by the Secretary of State of Idaho, a
Certificate of Authorization issued by the Secretary of State of
Montana, a Certificate of Authorization issued by the Secretary
of State of Oregon, and a Certificate of Status of Foreign
Corporation issued by the Secretary of State of California; (g)
the orders of the Washington Utilities and Transportation
Commission (the "WUTC"), the California Public Utilities
Commission (the "CPUC"), the Idaho Public Utilities Commission
(the "IPUC") and the Public Utility Commission of Oregon (the
"OPUC"); (h) the registration statement (File Nos. 33-____ and
33-____) (the "Registration Statement") filed by the Company and
the Trust with the Securities and Exchange Commission (the "SEC")
for the registration under the Securities Act of 1933, as amended
(the "Act"), of $150,000,000 in aggregate amount of the Trust's
and the Company's securities and for qualification under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") of the Indenture, the Declaration and the Guarantee
Agreements, together with all exhibits thereto, which
Registration Statement, we are advised, became effective on
________________; (i) the final prospectus relating to the
Securities and the prospectus supplement dated _______________,
relating to the Securities and filed with the SEC pursuant to
Rule 424 under the Act (collectively, the "Prospectus"); (j) the
Incorporated Documents, which are incorporated by reference in
the Registration Statement and the Prospectus, consisting of the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995 (the "10-K"), the Company's Quarterly Reports
on Form 10-Q for the fiscal quarters ended March 31, 1996 and
June 30, 1996 and September 30, 1996 (the "10-Q's"), and the
June 28, 1996 Form 8-K (the "8-K")in each case, together with all
exhibits thereto; and (k) the records of various corporate and
other proceedings relating to the authorization of the
Underwriting Agreement and the Company Documents. We have also
examined such other documents and satisfied ourselves as to such
other matters as we have deemed necessary in order to render this
opinion.
As to various questions of fact (but not as to the legal
conclusions contained therein) material to the opinions set forth
below, in rendering such opinions we have relied, with your
permission, upon certificates of public officials, certificates
of officers or other employees of the Company, representations
contained in the Underwriting Agreement, the Company Documents
and related documents, and other oral or written assurances by
officers or other employees of the Company.
We are general counsel to the Company and the following
subsidiaries: WP Laboratories, Inc., WWP Energy Solutions, Inc.,
WWP Resource Services, Inc., WP International, Inc., Washington
Irrigation and Development Company, and WP Finance Co. In such
capacity, we represent the Company and such subsidiaries on
various matters referred to us by them, but not on all matters.
We do not serve as counsel to other direct or indirect
subsidiaries and affiliates of the Company (including the Trust)
and, as to various questions relating to the activities of such
subsidiaries and affiliates, we further have relied upon
certificates of officers thereof and assumed or otherwise based
this opinion upon legal conclusions set forth in opinions of
counsel thereto.
We have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as copies, and the due authorization, execution and delivery of
all documents by all parties thereto other than the Company.
As used in this opinion, the expression "to the best of our
knowledge" with reference to matters of fact means that, after an
examination of the documents made available to us by the Company
and after inquiries of officers or employees of the Company, we
find no reason to believe that the opinions expressed herein are
factually inaccurate; but beyond that, we have not made an
independent factual investigation for the purpose of rendering
this opinion.
Based upon the foregoing, and subject to the qualifications
set forth herein, we are of the opinion that:
(1)(a) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Washington, is duly qualified to do business and
in good standing as a foreign corporation under the laws of
the States of California, Idaho, Montana and Oregon, and has
adequate corporate powers and has all material required
approvals and authorizations to own, lease and operate its
properties and to transact an electric and/or gas public
utility business in such States as described in the
Registration Statement, the Prospectus and the Incorporated
Documents. The Company has adequate corporate powers to
execute and deliver, and perform its obligations under, the
Underwriting Agreement and the Company Documents.
(b) Each of the Company's following subsidiaries,
Pentzer Corporation, WWP Energy Solutions, Inc., WWP
Resource Services, Inc., and Washington Irrigation &
Development Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Washington.
(2) The WUTC, CPUC, IPUC and OPUC have entered
appropriate orders authorizing the issuance and sale by the
Company of the Subordinated Debt Securities and the
Preferred Securities Guarantee on the terms set forth or
contemplated in such orders; each of such orders, to the
best of our knowledge, remain in full force and effect on
the date of this opinion; and no further approval,
authorization, consent or other order of, or filing with,
any governmental agency of the States of Washington,
California, Idaho, Montana and Oregon is legally required
for the authorization of the issuance and sale by the
Company of the Subordinated Debt Securities or in order for
(A) the Company Documents to constitute valid and binding
obligations of the Company or (B) the Preferred Securities
and the Common Securities to be validly issued by the Trust.
(3) The Underwriting Agreement and the Company Documents
have been duly authorized, executed and delivered by the
Company.
(4) The execution, delivery and performance by the
Company of its obligations under the Underwriting Agreement
and the Company Documents, and the issuance and sale by the
Company of the Subordinated Debt Securities, will not (A)
breach or violate the Company's Restated Articles of
Incorporation, as amended, or Bylaws, as amended, or (B)
breach or violate, or constitute a default under, (i) any
order of any court or governmental agency of such States
having jurisdiction over the Company or any of its
properties which is material to Company or (ii) any
contract, indenture, mortgage, agreement or other instrument
for borrowed money to which the Company is a party or to
which any of its properties is subject and which is listed
as an Exhibit to the 10-K, except that we express no opinion
as to any such contract, indenture, mortgage, agreement or
other instrument which is addressed in the separate opinion
to you of Reid & Priest LLP.
(5) Except as described in the Registration Statement,
the Prospectus or the Incorporated Documents, to the best of
our knowledge, there are no legal or governmental
proceedings, either pending or overtly threatened in
writing, which arise out of the operations of the Company in
the States of Washington, California, Idaho, Montana or
Oregon to which the Company is a party or to which the
Company or any of its properties are subject and which are
material to the Company, other than ordinary, routine legal
or governmental proceedings incidental to the kind of
business conducted by the Company.
(6) The descriptions of legal or governmental
proceedings contained in Item 1 (Note 2) of the 10-Q's and
in Item 14 (Note 14) of the 10-K are fair and accurate
descriptions thereof in all material respects.
As noted above, we are general counsel to the Company and
certain of its subsidiaries and we represent them on various, but
not all, matters. Our involvement in the preparation of the
Registration Statement, the Prospectus and the Incorporated
Documents was limited to generally reviewing drafts thereof
prepared by the Company or other counsel to the Company and to
participating in the conferences referred to below. However, we
have not been engaged to make the ultimate determination of
materiality for purposes of, or to determine the wording and
degree of disclosure contained in, the Registration Statement,
the Prospectus or the Incorporated Documents; we have not been
engaged to advise the Company with respect to compliance with
securities laws; and we have not otherwise acted as securities
law counsel to the Company.
Accordingly, in such capacity during the course of the
preparation by the Company of the Registration Statement, the
Prospectus and the Incorporated Documents, we have participated
in conferences with certain officers and other employees of the
Company, with other counsel for the Company, with you and your
counsel, and with Deloitte & Touche LLP, the independent
certified public accountants who examined the financial
statements included in the Registration Statement, the Prospectus
and the Incorporated Documents, but we have made no independent
verification of the accuracy or completeness of the
representations and statements made to us by the Company or the
information included by the Company in the Registration
Statement, the Prospectus or the Incorporated Documents, and we
take no responsibility therefor, except insofar as such
information relates to us.
The nature and extent of our engagement by the Company and
our participation in the above-mentioned conferences, as
described above, would not necessarily be adequate to bring to
our attention all matters which could be deemed material or to
enable us to make a valid assessment of the materiality of such
matters as were brought to our attention or of the wording and
degree of disclosure contained in the Registration Statement, the
Prospectus or the Incorporated Documents.
However, during the course of our examination of the
Registration Statement, the Prospectus and the Incorporated
Documents and our participation in the above-mentioned
conferences, nothing came to our attention which gives us reason
to believe that, when the Registration Statement became
effective, the Registration Statement, the Prospectus and the
Incorporated Documents contained an untrue statement of a
material fact or omitted to state a material fact necessary to
make the statements therein not misleading, or that, as of the
date of this opinion, the Prospectus, as then amended or
supplemented, and the Incorporated Documents contains an untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that we do not express any belief as to any
financial statements or other financial or statistical
information, data or computations contained in the Registration
Statement, the Prospectus or the Incorporated Documents, as to
any statements contained in the Statements of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act with
respect to the Debt Trustee, the Institutional Trustee and the
Guaranty Trustee, or as to any portions of the Registration
Statement or the Prospectus other than the sections entitled "The
Washington Water Power Company" and "Use of Proceeds" and Part II
of the Registration Statement.
The opinions expressed above are limited to the laws of the
States of Washington, California, Idaho, Montana and Oregon
(excluding therefrom principles of conflicts of laws, state
securities or blue sky laws, and laws of political subdivisions
of such States). This opinion is limited to the opinions and
confirmations expressed above, and no additional opinions or
confirmations are to be implied or inferred. Without limiting
the generality of the foregoing, it is specifically understood
that we express no opinion or confirmation as to (i) whether the
Underwriting Agreement, the Company Documents or related
documents constitute legal, valid and binding obligations,
enforceable in accordance with their terms, (ii) whether the
Preferred Securities or the Common Securities have been validly
issued, or (iii) the tax treatment or other description of the
Securities, the Subordinated Securities or related documents
contained in the Registration Statement and Prospectus.
This opinion is being delivered as of this date solely in
connection with the issuance and sale of the Preferred Securities
and the related issuance and sale of the Subordinated Debt
Securities for the benefit of the addressees hereof. Wilmington
Trust Company, as Debt Trustee under the Indenture, is hereby
also authorized to rely upon this opinion in connection therewith
as if it were addressed to it. Sullivan & Cromwell, Reid &
Priest LLP and Richards, Layton & Finger are hereby also
authorized to rely upon this opinion in connection therewith as
if it were addressed to them. This opinion is not being
delivered, nor may it be relied upon, for any other purpose; this
opinion is not being delivered for the benefit of, nor may it be
relied upon by, the holders of the Securities or the Subordinated
Securities or any other party to which it is not specifically
addressed or to which reliance is not expressly permitted hereby;
and this opinion is not to be used, delivered, circulated, quoted
or otherwise referred to except as expressly permitted hereby.
This opinion is given as of the date hereof, without any
obligation upon us to update this opinion or to advise the
addressees hereof or any other party of any changes in
circumstances or laws that may hereafter be brought to our
attention or occur which may affect this opinion.
Very truly yours,
PAINE, HAMBLEN, COFFIN,
BROOKE & MILLER LLP
EXHIBIT 2
FORM OF OPINION OF REID & PRIEST LLP
__________, 199_
[Names and Addresses of Underwriters]
Dear Sirs:
This opinion is being delivered to you pursuant to
Section 6(d) of the Underwriting Agreement, dated __________,
1996 (the "Underwriting Agreement"), among you as Representative
of the Underwriters and The Washington Water Power Company, a
Washington corporation (the "Company"), and Washington Water
Power Capital I, a statutory business trust created under the
Business Trust Act of the State of Delaware (the "Trust"),
relating to (i) the issuance and sale by the Trust to you of
$____________ in aggregate liquidation amount, __% Trust
Originated Preferred Securities (liquidation amount of $25 per
Preferred Security) (the "Preferred Securities"), guaranteed
pursuant to the Preferred Securities Guarantee Agreement, dated
as of _________, by and between the Company, as guarantor, and
Wilmington Trust Company, as preferred guaranty trustee, and (ii)
the issuance and sale by the Company to the Trust of $__________
in aggregate principal amount of Junior Subordinated Deferrable
Interest Debentures, ___% Series due _____________ (the
"Subordinated Debt Securities"), to be issued under an Indenture,
dated as of _________, by and between the Company and Wilmington
Trust Company, as trustee (the "Debt Trustee").
Capitalized terms used herein but not otherwise defined
herein shall have the meaning ascribed to them in the
Underwriting Agreement. The Declaration, the Indenture
(including the Officer's Certificate establishing the terms of
the Subordinated Debt Securities), the Subordinated Debt
Securities and the Guarantee Agreements are sometimes
collectively referred to herein as the "Company Documents".
In connection with rendering this opinion, we have
examined, or are generally familiar with, the following: (a) the
Restated Articles of Incorporation, as amended, and the Bylaws,
as amended, of the Company; (b) the Underwriting Agreement; (c)
the Company Documents; (d) the Preferred Securities; (e) the
Common Securities; (f) the Registration Statement for the
registration under the Securities Act of 1933, as amended (the
"Act"), of $150,000,000 in aggregate amount of the Trust's and
the Company's securities and for qualification under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of
the Indenture, the Declaration and the Guarantees, which
registration statement became effective on __________; (g) the
Prospectus filed with the SEC pursuant to Rule 424 under the Act
; and (h) the records of various corporate and other proceedings
relating to the authorization of the Company Documents. We have
also examined such other documents and satisfied ourselves as to
such other matters as we have deemed necessary in order to render
this opinion. We have not examined the certificates evidencing
the Preferred Securities, except a specimen thereof.
As to various questions of fact (but not as to the
legal conclusions contained therein) material to the opinions set
forth below, in rendering such opinions we have relied, with your
permission, upon certificates of public officials, certificates
of officers or other employees of the Company, representations of
the Company and the Trust in the Underwriting Agreement, and
other oral or written assurances by officers or other employees
of the Company. We do not serve as counsel to direct or indirect
subsidiaries or affiliates of the Company, and, as to various
questions relating to the activities of such subsidiaries and
affiliates, we have further relied upon certificates of officers
thereof and opinions of counsel thereto.
We have assumed, consistent with the opinion of even
date herewith rendered to you by Paine, Hamblen, Coffin, Brooke &
Miller LLP, that the Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Washington and is duly qualified to do business and in good
standing as a foreign corporation under the laws of the States of
California, Idaho, Montana and Oregon, and has adequate corporate
powers to execute and deliver the Underwriting Agreement and the
Company Documents; that the Underwriting Agreement and the
Company Documents have been duly authorized, executed and
delivered by the Company; and that all approvals, authorizations,
consents, other orders or filings required under the laws of the
States of Washington, California, Idaho, Montana and Oregon in
order for the Company Documents to constitute valid and binding
obligations of the Company have been obtained. We have further
assumed, consistent with the opinion of even date herewith
rendered to you by Richards, Layton & Finger, that the Trust has
been duly created and is validly existing in good standing as a
business trust under the Delaware Act, with trust power and
authority for the execution, delivery and performance of its
obligations under the Underwriting Agreement and the issuance and
performance of its obligations under the Preferred Securities and
the Common Securities; that the execution, delivery and
performance of the of the Underwriting Agreement have been duly
authorized by the Trust; that the Preferred Securities and the
Common Securities have been duly authorized by the Declaration,
and are duly and validly issued and, subject to the
qualifications set forth in said opinion, are fully paid and
nonassessable undivided beneficial interests in the Trust and are
entitled to the benefits of the Declaration; and that no
authorization, approval, consent or order of any Delaware court
or Delaware governmental authority or agency is required in
connection with the issuance and sale by the Trust of the
Preferred Securities or the Common Securities.
Based upon the foregoing, and subject to the
qualifications set forth herein, we are of the opinion that:
[1] the Indenture has been duly qualified under the
Trust Indenture Act and constitutes a valid and legally
binding instrument, enforceable against the Company in
accordance with its terms, except to the extent the
enforcement of the Indenture may be limited by any
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws affecting
creditors' rights generally, by general principles of equity
(whether asserted in an action in equity or at law) and by
rules of law governing specific performance, injunctive
relief, foreclosure, receivership and other equitable
remedies; and the Indenture conforms in all material
respects to the description thereof contained in the
Prospectus;
[2] the Subordinated Debt Securities, when duly
authenticated and delivered by the Debt Trustee in
accordance with the Indenture and issued, delivered and paid
for pursuant to the Declaration, will be duly executed,
authenticated, issued and delivered and constitute valid and
legally binding obligations of the Company, in the form
contemplated by and entitled to the benefits provided by the
Indenture, and enforceable in accordance with their terms,
except to the extent the enforcement of the Subordinated
Debt Securities may be limited by any applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium or other laws affecting creditors' rights
generally, by general principles of equity (whether asserted
in an action in equity or at law) and by rules of law
governing specific performance, injunctive relief,
foreclosure, receivership and other equitable remedies; and
the Subordinated Debt Securities conform in all material
respects to the description thereof contained in the
Prospectus;
[3] the Declaration has been duly qualified under the
Trust Indenture Act, and the Declaration conforms in all
material respects to the description thereof in the
Prospectus;
[4] the Preferred Securities and the Common Securities
conform in all material respects to the descriptions thereof
in the Prospectus;
[5] each of the Guarantee Agreements, assuming in the
case of the Preferred Securities Guarantee Agreement due
authorization, execution and delivery of the Preferred
Securities Guarantee by the Guarantee Trustee, constitute
valid and legally binding instruments, enforceable against
the Company in accordance with its terms, except to the
extent enforcement of the Guarantee Agreements may be
limited by any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other laws
affecting creditors' rights generally, by general principles
of equity (whether asserted in an action in equity or at
law) and by rules of law governing specific performance,
injunctive relief, foreclosure, receivership and other
equitable remedies; each of the Guarantees and the Guarantee
Agreements conform in all material respects to the
descriptions thereof contained in the Prospectus; and the
Preferred Securities Guarantee has been duly qualified under
the Trust Indenture Act;
[6] the execution, delivery and performance by the
Company of its obligations under the Underwriting Agreement
and the Company Documents and the consummation of the
transactions contemplated therein and compliance by the
Company with its obligations thereunder will not (A)
conflict with the Company's Restated Articles of
Incorporation, as amended, or Bylaws, as amended, or (B)
result in the breach or violation of any terms or provisions
of, or constitute a default under, (i) the Company's
Mortgage and Deed of Trust dated as of June 1, 1939, to
Citibank, N.A., as trustee, (ii) the Indenture, dated as of
July 1, 1988, of the Company to Chemical Bank, (iii) the
Lease Agreement, dated as of December 15, 1986, between the
Company and IRE-4 of New York, Inc. and all agreements of
the Company associated therewith, (iv) the Loan Agreement,
dated as of October 1, 1989, between the Company and the
City of Forsyth, Rosebud County, Montana, and all agreements
of the Company associated therewith, (v) the Trust Company
Agreement, dated as of November 21, 1990, between the
Company and Bankers Trust Company, and all agreements of the
Company associated therewith or (vi) the Agreement for Lease
and the Lease Agreement, each dated as of February 26, 1993,
between the Company and WP Funding, Limited Partnership, and
all agreements of the Company associated therewith;
[7] no approval, authorization, consent or other order
of, or filing with, any governmental agency of the State of
New York or of the United States of America is required
under the respective laws of such jurisdictions in order for
(A) the Company Documents to constitute valid and binding
obligations of the Company and (B) the Preferred Securities
and the Common Securities to constitute valid and binding
obligations of the Trust;
[8] None of the Offerors is and, after giving effect
to the offering and sale of the Preferred Securities, will
be, an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the
Investment Company Act of 1940, as amended;
[9] the Registration Statement and Prospectus (except
the financial statements and other financial and statistical
data contained therein and any information furnished to the
Company by the Underwriters expressly for use therein, upon
which we do not pass) comply as to form in all material
respects with the applicable requirements of the Act and the
Trust Indenture Act and the applicable instructions, rules
and regulations promulgated thereunder; the Registration
Statement has become effective under the Act and, to the
best of our knowledge, no proceedings for a stop order with
respect thereto are pending or threatened under Section 8(d)
of the Act; and
[10] the statements made in the Prospectus under the
caption "Certain United States Federal Income Tax
Considerations" constitute a fair and accurate summary of
the matters addressed therein, based upon current law and
the assumptions stated or referred to therein; and the
statements made in the Prospectus under the caption "Effect
of Obligations under the Subordinated Debt Securities and
the Guarantee" fairly present the information purported to
be given.
We have acted as counsel to the Company primarily with
respect to general compliance with the federal securities laws
and specific financing and other corporate transactions. Our
engagement regarding such compliance was limited to advising the
Company as to the requirements of such laws and the rules and
regulations of the SEC thereunder, assisting the Company in the
assessment of the materiality of particular matters brought to
our attention and generally reviewing, with a view toward such
compliance, drafts prepared by the Company of the documents
incorporated by reference into the Registration Statement and the
Prospectus. We have not acted as general counsel to the Company
and have not, except for specific purposes, attended meetings of
the Board of Directors of the Company, or committees thereof, or
of officers of the Company; nor have we otherwise been in a
position to become aware of matters not specifically brought to
our attention by officers or other employees of, or other counsel
to, the Company.
Accordingly, in the course of the preparation by the
Company of the Registration Statement and the Prospectus, we
participated in conferences with certain officers and other
employees of the Company, with other counsel for the Company,
with you and your counsel, and with Deloitte & Touche LLP, the
independent certified public accountants who examined the
financial statements included in the Registration Statement and
the Prospectus, but we made no independent verification of the
accuracy or completeness of the representations and statements
made to us by the Company or the information included by the
Company in the Registration Statement or the Prospectus, and we
take no responsibility therefor, except insofar as such
information relates to us and as set forth in paragraphs (1)
through (5) and (10) above.
The nature and extent of our engagement by the Company
and our participation in the preparation of the Registration
Statement and the Prospectus, as described above, would not
necessarily be adequate to bring to our attention all matters
which could be deemed material or to enable us to make a valid
assessment of the materiality of such matters as were brought to
our attention.
However, during the course of our examination of the
Registration Statement and the Prospectus, and our participation
in the above-mentioned conferences, nothing came to our attention
which gives us reason to believe that (A) when the Registration
Statement became effective, the Registration Statement contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or that, as of the date of
this opinion, the Prospectus, as then amended or supplemented,
contains an untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that we do not express
any belief as to any financial statements or other financial or
statistical information, data or computations contained in the
Registration Statement or the Prospectus or as to any statements
contained in the Statements of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act with respect to the Debt
Trustee, the Institutional Trustee and the Guarantee Trustee; or
(B) there exist any material contracts which are required to be
filed as exhibits to the Registration Statement which have not
been so filed.
The opinions enumerated above are limited to the laws
of the State of New York and the federal law of the United States
of America (excluding therefrom principles of conflicts of laws
and state securities or blue sky laws). To the extent that such
opinions relate to or are dependent upon matters governed by the
laws of other States, they are based upon the assumptions set
forth above or otherwise upon the legal conclusions set forth in
the aforesaid opinions of Paine, Hamblen, Coffin, Brooke & Miller
LLP and Richards, Layton & Finger. For purposes of the opinion
expressed in Paragraph 6 above, we have assumed that any document
referred to therein which is not stated to be governed by the law
of the State of New York would be enforced as written.
Wilmington Trust Company, as Debt Trustee under the
Indenture, is hereby authorized to rely upon this opinion in
connection therewith as if it were addressed to it. This opinion
is not being delivered for the benefit of, nor may it be relied
upon by, the holders of the Securities or the Subordinated Debt
Securities or any other party to which it is not specifically
addressed or to which reliance is not expressly permitted hereby.
Very truly yours,
REID & PRIEST LLP
EXHIBIT 3
[FORM OF OPINION OF RICHARDS, LAYTON & FINGER]
___________, 199__
[Names and Addresses of Underwriters]
Re: Washington Water Power Capital I
--------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for The
Washington Water Power Company, a Washington corporation ("WWP"),
and Washington Water Power Capital I, a Delaware business trust
(the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of originals or copies of the following:
(a) The Certificate of Trust of the Trust, dated as of
November 4, 1996 (the "Certificate"), as filed in
the office of the Secretary of State of the State
of Delaware (the "Secretary of State") on November
4, 1996;
(b) The Declaration of Trust of the Trust, dated as of
November 4, 1996, between WWP, as Sponsor, and the
trustees of the Trust named therein;
(c) The Amended and Restated Declaration of Trust of
the Trust, dated as of --------------, 199--
(including Annex I and Exhibits A-1 and A-2
thereto) (the "Declaration"), among WWP, as
Sponsor, the trustees of the Trust named therein
(collectively, the "Trustees") and the holders,
from time to time, of undivided beneficial
interests in the assets of the Trust;
(d) The Underwriting Agreement, dated ------------,
199_ (the "Underwriting Agreement"), among the
Trust, WWP and ----------, as Representative of
the several underwriters named in Schedule A
thereto (the "Underwriters");
(e) The Prospectus, dated ------------, 199-- (the
"Prospectus"), and the Prospectus Supplement,
dated ---------, 199-- (the "Prospectus
Supplement"), relating to the ----% Trust
Originated Preferred Securities, Series A of the
Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a
"Preferred Security" and collectively, the
"Preferred Securities"); and
(f) A Certificate of Good Standing for the Trust,
dated -------------, 199-- obtained from the
Secretary of State.
Initially capitalized terms used herein and not
otherwise defined are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (f) above. In particular, we have not reviewed any
document (other than the documents listed in paragraphs (a)
through (f) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein.
We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the
statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed
to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of
all documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that
the Declaration constitutes the entire agreement among the
parties thereto with respect to the subject matter thereof,
including with respect to the creation, operation and termination
of the Trust, and that the Declaration and the Certificate are in
full force and effect and have not been amended, (ii) except to
the extent provided in paragraph 1 below, the due creation, due
formation or due organization, as the case may be, and valid
existence in good standing of each party to the documents
examined by us under the laws of the jurisdiction governing its
creation, formation or organization, (iii) the legal capacity of
each natural person who is a party to the documents examined by
us, (iv) except to the extent provided in paragraph 4 below, that
each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its
obligations under, such documents, (v) except to the extent
provided in paragraph 5 below, that each of the parties to the
documents examined by us has duly authorized, executed and
delivered such documents, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (the "Preferred
Security Holders") of a Preferred Securities Certificate for such
Preferred Security and the payment for the Preferred Security
acquired by it, in accordance with the Declaration, and as
described in the Prospectus and the Prospectus Supplement, (vii)
that the Preferred Securities are issued and sold to the
Preferred Security Holders in accordance with the Declaration,
and as described in the Prospectus and the Prospectus Supplement,
(viii) the receipt by the Person (the "Common Security Holder")
to whom a --% Common Security of the Trust representing common
undivided beneficial interests in the assets of the Trust (each,
a "Common Security" and collectively, the "Common Securities")
(the Preferred Securities and the Common Securities being
hereinafter collectively referred to as the "Trust Securities")
is to be issued by the Trust of a Common Securities Certificate
for such Common Security and the payment for the Common Security
acquired by it, in accordance with the Declaration, and as
described in the Prospectus and the Prospectus Supplement, (ix)
that the Common Securities are issued and sold to the Common
Security Holder in accordance with the Declaration, and as
described in the Prospectus and the Prospectus Supplement, (x)
that the Trust derives no income from or connected with sources
within the State of Delaware and has no assets, activities (other
than having a Delaware trustee as required by the Delaware
Business Trust Act and the filing of documents with the Secretary
of State) or employees in the State of Delaware, and (xi) that
the Trust is treated as a grantor trust for federal income tax
purposes. We have not participated in the preparation of the
Prospectus or the Prospectus Supplement and assume no
responsibility for their contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion on
the laws of any other jurisdiction, including federal laws and
rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of
such questions of law and statutes of the State of Delaware as we
have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
1. The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required under the laws of
the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
2. Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority to own
its property and conduct its business, all as described in the
Prospectus and the Prospectus Supplement.
3. The Declaration constitutes a valid and binding
obligation of WWP and the Trustees, and is enforceable against
WWP and the Trustees, in accordance with its terms.
4. Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (i) to
execute and deliver, and to perform its obligations under, the
Underwriting Agreement, and (ii) to issue and perform its
obligations under the Trust Securities.
5. Under the Delaware Business Trust Act and the
Declaration, the execution and delivery by the Trust of the
Underwriting Agreement, and the performance by the Trust of its
obligations thereunder, have been duly authorized by all
necessary trust action on the part of the Trust.
6. The Preferred Securities have been duly authorized
by the Declaration and are duly and validly issued and, subject
to the qualifications set forth herein, fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust and are entitled to the benefits of the Declaration. The
Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of
Delaware. We note that the Preferred Security Holders may be
obligated, pursuant to the Declaration, (i) to provide indemnity
and/or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of Preferred
Securities Certificates and the issuance of replacement Preferred
Securities Certificates, and (ii) to provide security or
indemnity in connection with requests of or directions to the
Institutional Trustee to exercise its rights and powers under the
Declaration.
7. Under the Delaware Business Trust Act, the
certificate attached to the Declaration as Exhibit A-1 is an
appropriate form of certificate to evidence ownership of the
Preferred Securities.
8. The Common Securities have been duly authorized by
the Declaration and are duly and validly issued undivided
beneficial interests in the assets of the Trust.
9. Under the Delaware Business Trust Act and the
Declaration, the issuance of the Trust Securities is not subject
to preemptive rights.
10. The issuance and sale by the Trust of the Trust
Securities, the execution, delivery and performance by the Trust
of the Underwriting Agreement, the consummation by the Trust of
the transactions contemplated thereby and compliance by the Trust
with its obligations thereunder do not violate (i) any of the
provisions of the Certificate or the Declaration, or (ii) any
applicable Delaware law or administrative regulation.
11. No authorization, approval, consent or order of
any Delaware court or Delaware governmental authority or agency
is required to be obtained by the Trust solely in connection with
the issuance and sale of the Trust Securities.
12. Neither the issuance and sale by the Trust of the
Trust Securities, nor the performance by the Trust of the
Underwriting Agreement requires the filing with any court,
governmental authority or agency under the laws of the State of
Delaware, except for the filing of the Certificate which has been
duly effected.
13. The Preferred Security Holders (other than those
Preferred Security Holders who reside or are domiciled in the
State of Delaware) will have no liability for income taxes
imposed by the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be liable for
any income tax imposed by the State of Delaware.
The opinion expressed in paragraph 3 above is subject,
as to enforcement, to the effect upon the Declaration of (i)
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent transfer and other similar laws relating
to or affecting the rights and remedies of creditors generally,
(ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in
a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
We consent to your relying as to matters of Delaware
law upon this opinion in connection with the Underwriting
Agreement. Except as stated above, without our prior written
consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
EXHIBIT 4
[FORM OF OPINION OF RICHARDS, LAYTON & FINGER]
-------------, 199--
[Names and Addresses of Underwriters]
Re: Washington Water Power Capital I
--------------------------------
Ladies and Gentlemen:
We have acted as counsel to Wilmington Trust Company, a
Delaware banking corporation ("Wilmington Trust"), in connection
with the transactions contemplated by (i) the Amended and
Restated Declaration of Trust, dated as of -------------, 199--
(the "Declaration"), among The Washington Water Power Company, a
Washington corporation ("WWP"), Wilmington Trust, as
Institutional Trustee and Delaware Trustee, the regular trustees
named therein and the holders, from time to time, of undivided
beneficial interests in the assets of Washington Water Power
Capital I, a Delaware business trust (the "Trust"), (ii) the
Indenture, dated as of ------------, 199-- (the "Indenture"),
between WWP and Wilmington Trust, as trustee, and (iii) the
Preferred Securities Guarantee Agreement, dated as of ----------,
199-- (the "Preferred Securities Guarantee"), between WWP and
Wilmington Trust, as trustee. This opinion is being furnished to
you pursuant to Section 6(f) of the Underwriting Agreement, dated
------------, 199-- (the "Underwriting Agreement"), among WWP,
the Trust and Merrill Lynch & Co., individually and as
Representative of the several Underwriters named in Schedule A to
the Underwriting Agreement. Capitalized terms used herein and
not otherwise defined are used as defined in the Declaration,
except that reference herein to any document shall mean such
document as in effect on the date hereof.
We have examined originals or copies of the
Declaration, the Preferred Securities Guarantee and the
Indenture. We have also examined originals or copies of such
other documents and such corporate records, certificates and
other statements of governmental officials and corporate officers
and other representatives of Wilmington Trust as we have deemed
necessary or appropriate for the purposes of this opinion.
Moreover, as to certain facts material to the opinions expressed
herein, we have relied upon the representations and warranties
contained in the documents referred to in this paragraph.
Based upon the foregoing and upon an examination of
such questions of law as we have considered necessary or
appropriate, and subject to the assumptions, exceptions and
qualifications set forth below, we advise you that, in our
opinion:
1. Wilmington Trust is duly incorporated and is
validly existing in good standing as a banking corporation with
trust powers under the laws of the State of Delaware.
2. Wilmington Trust has the power and authority to
execute, deliver and perform its obligations under the
Declaration, the Indenture and the Preferred Securities
Guarantee.
3. Each of the Declaration, the Indenture and the
Preferred Securities Guarantee has been duly authorized, executed
and delivered by Wilmington Trust and constitutes a legal, valid
and binding obligation of Wilmington Trust, enforceable against
Wilmington Trust in accordance with its terms.
4. The execution, delivery and performance by
Wilmington Trust of the Declaration, the Indenture and the
Preferred Securities Guarantee do not conflict with or constitute
a breach of the charter or by-laws of Wilmington Trust.
5. No consent, approval or authorization of, or
registration with or notice to, any governmental authority or
agency of the State of Delaware or the United States of America
governing the banking or trust powers of Wilmington Trust is
required for the execution, delivery or performance by Wilmington
Trust of the Declaration, the Indenture and the Preferred
Securities Guarantee.
The foregoing opinions are subject to the following
assumptions, exceptions and qualifications:
A. We are admitted to practice law in the State of
Delaware and we do not hold ourselves out as being experts on the
law of any other jurisdiction. The foregoing opinions are
limited to the laws of the State of Delaware and the federal laws
of the United States of America governing the banking and trust
powers of Wilmington Trust (except that we express no opinion
with respect to (i) state securities or blue sky laws and (ii)
federal securities laws, including, without limitation, the
Securities Act of 1933, as amended, the Securities Exchange Act
of 1934, as amended, the Trust Indenture Act of 1939, as amended,
and the Investment Company Act of 1940, as amended), and we have
not considered and express no opinion on the laws, rules and
regulations of any other jurisdiction. Insofar as the foregoing
opinions relate to the validity and enforceability of the
Indenture and the Preferred Securities Guarantee expressed to be
governed by the laws of the State of New York, we have assumed
that such document is legal, valid, binding and enforceable in
accordance with its terms under such laws (as to which we express
no opinion).
B. The foregoing opinions regarding enforceability
are subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium, receivership, fraudulent transfer and
similar laws relating to or affecting the rights and remedies of
creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
C. We have assumed the due authorization, execution
and delivery by each of the parties thereto, other than
Wilmington Trust, of each of the Declaration, the Indenture and
the Preferred Securities Guarantee and that each of such parties
has the power and authority to execute, deliver and perform each
such document.
D. We have assumed that all signatures on documents
examined by us are genuine, that all documents submitted to us as
originals are authentic, and that all documents submitted to us
as copies or specimens conform with the originals, which facts we
have not independently verified.
E. We express no opinion as to the creation,
attachment, perfection or priority of any mortgage or security
interest or the nature or validity of title to any property.
F. We have not participated in the preparation of any
offering materials with respect to the Securities and we assume
no responsibility for their contents.
This opinion may be relied upon by you in connection
with the matters set forth herein. Except as stated above,
without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for
any purpose.
Very truly yours,
EXHIBIT 5
[CONTENTS OF LETTER OF DELOITTE & TOUCHE]
The letter of Deloitte & Touche will state in effect
that:
(1) They are independent certified public accountants
with respect to the Company and its subsidiaries within the
meaning of the Act and the Rules and Regulations.
(2) In their opinion, the financial statements audited
by them and incorporated by reference in the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the Act, the Exchange Act and the Rules and
Regulations.
(3) On the basis of procedures referred to in such
letter, including a reading of the latest available minutes of
the Board of Directors of the Company and a reading of the latest
available interim financial statements of the Company and
inquiries of officials of the Company responsible for financial
and accounting matters, nothing caused them to believe that:
(a) the unaudited income statement and balance sheet
amounts, if any, included in the Prospectus were not
determined on a basis substantially consistent with that of
the corresponding amounts in the audited financial
statements incorporated by reference in the Prospectus;
(b) the unaudited condensed financial statements
included in the Company's Quarterly Reports on Form 10-Q, if
any, incorporated by reference in the Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and
the related published rules and regulations thereunder
applicable to reports on Form 10-Q or are not in conformity
with generally accepted accounting principles on a basis
substantially consistent with that of the audited financial
statements incorporated by reference in the Prospectus;
(c) at the date of the latest available internal
balance sheet of the Company, there was any change in the
capital stock, notes payable or long-term debt or any
decrease in the net assets of the Company, or, at a
subsequent specified date not more than five days prior to
the date of such letter, there was a change in the capital
stock, notes payable or long-term debt of the Company, in
each case as compared with the amounts shown in the most
recent balance sheet of the Company incorporated by
reference in the Prospectus, except for (i) increases in
capital stock resulting from the issuance of shares pursuant
to employee benefit plans and the Company's Dividend
Reinvestment and Stock Purchase Plan, (ii) decrease in long-
term debt resulting from amortization of debt premium or
increases in long-term debt premium or increases in long-
term debt resulting from draw-downs of funds held in trust,
(iii) decreases in net assets resulting from the declaration
of dividends, (iv) changes or decreases which the Prospectus
discloses have occurred or may occur and (v) such other
changes or decreases as may be set forth in such letter; or
(d) at the date of the latest available internal
balance sheet of the Company, there was any decrease, as
compared with the most recent twelve-month period for which
operating revenues and net income are included or
incorporated by reference in the Prospectus, in such
amounts, except in all cases for changes or decreases which
the Prospectus discloses have occurred or may occur or as
may be set forth in set letter.
(4) In addition to their examination referred to in
their report in the Registration Statement and Prospectus and the
procedures referred to in (3) above, they have carried out
certain other specified procedures, not constituting an audit,
with respect to the dollar amounts, percentages and other
financial information, (in each case to the extent that such
dollar amounts, percentages and other financial information,
either directly or by analysis or computation, are derived from
the general accounting records of the Company) which appear (i)
in the Prospectus under the caption "The Washington Water Power
Company Selected Historical Financial Information" and (ii) in
the Company's annual report on Form 10-K for its most recent
fiscal year in Item 1, "Business", Item 6, "Selected Financial
Data" and Item 7 "Managements's Discussion and Analysis of
Financial Condition and Results of Operations" and have found
such dollar amounts, percentages and financial information to be
in agreement with the accounting records of the Company.
Exhibit 4(a)-1
CERTIFICATE OF TRUST
OF
WASHINGTON WATER POWER CAPITAL I
THIS CERTIFICATE OF TRUST of Washington Water Power
Capital I (the "Trust"), dated as of November 4, 1996, is being
duly executed and filed by the undersigned, as trustees, to
create a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801, et seq.).
------ -- ----
1. Name. The name of the business trust being
created hereby is Washington Water Power Capital I.
2. Delaware Trustee. The name and business address
of the trustee of the Trust with a principal place of business in
the State of Delaware are as follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
3. Effective Date. This Certificate of Trust shall
be effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
WILMINGTON TRUST COMPANY, LAWRENCE J. PIERCE,
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Regular Trustee
By: /s/ Donald G. MacKelcan By: /s/ Lawrence J. Pierce
----------------------- -----------------------
Name: Donald G. MacKelcan
Title: Assistant Vice President
Exhibit 4(a)-2
CERTIFICATE OF TRUST
OF
WASHINGTON WATER POWER CAPITAL II
THIS CERTIFICATE OF TRUST of Washington Water Power
Capital II (the "Trust"), dated as of November 4, 1996, is being
duly executed and filed by the undersigned, as trustees, to
create a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801, et seq.).
------ -- ----
1. Name. The name of the business trust being
created hereby is Washington Water Power Capital II.
2. Delaware Trustee. The name and business address
of the trustee of the Trust with a principal place of business in
the State of Delaware are as follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
3. Effective Date. This Certificate of Trust shall
be effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
WILMINGTON TRUST COMPANY, LAWRENCE J. PIERCE,
not in its individual capacity not in his
individual capacity
but solely as Trustee but solely as
Regular Trustee
By: /s/ Donald G. MacKelcan By: /s/ Lawrence J. Pierce
----------------------- -----------------------
Name: Donald G. MacKelcan
Title: Assistant Vice President
Exhibit 4(a)-3
CERTIFICATE OF TRUST
OF
WASHINGTON WATER POWER CAPITAL III
THIS CERTIFICATE OF TRUST of Washington Water Power
Capital III (the "Trust"), dated as of November 4, 1996, is being
duly executed and filed by the undersigned, as trustees, to
create a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801, et seq.).
------- -- ---
1. Name. The name of the business trust being
created hereby is Washington Water Power Capital III.
2. Delaware Trustee. The name and business address
of the trustee of the Trust with a principal place of business in
the State of Delaware are as follows:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
3. Effective Date. This Certificate of Trust shall
be effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
WILMINGTON TRUST COMPANY, LAWRENCE J. PIERCE,
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Regular Trustee
By: /s/ Donald G. MacKelcan By: /s/ Lawrence J. Pierce
----------------------- ----------------------
Name: Donald G. MacKelcan
Title: Assistant Vice President
Exhibit 4(a)-4
DECLARATION OF TRUST
OF
WASHINGTON WATER POWER CAPITAL I
DECLARATION OF TRUST, dated as of November 4, 1996
(this "Declaration of Trust"), by and among The Washington Water
Power Company, a Washington corporation, as Sponsor, Lawrence J.
Pierce, as Regular Trustee, and Wilmington Trust Company, a
Delaware banking corporation, not in their individual capacities
but solely as trustees of the Trust, as defined below (collec-
tively, the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as
"Washington Water Power Capital I" (the "Trust"), in which name
the Trustees, or the Sponsor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts,
and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and
sets over to the Trustees the sum of $10. The Trustees hereby
acknowledge receipt of such amount in trust from the Sponsor,
which amount shall constitute the initial trust estate. The
Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto
that the Trust created hereby constitute a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section
-------
3801 et seq., as it may be amended from time to time, or any
-- ----
successor legislation (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The
Trustees hereby are authorized and directed to execute and file a
certificate of trust with the Secretary of State of the State of
Delaware in accordance with the provisions of the Business Trust
Act.
3. The Sponsor and the Trustees will enter into an
Amended and Restated Declaration of Trust, satisfactory to each
such party and substantially in the form to be included as an
exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust
created hereby and the issuance of the Preferred Securities and
Common Securities referred to therein. Prior to the execution
and delivery of such Amended and Restated Declaration of Trust,
the Trustees shall not have any duty or obligation hereunder or
with respect of the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals
required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and
direct the Sponsor, as the Sponsor of the Trust, (i) to file with
the Securities and Exchange Commission (the "Commission") and
execute, in each case on behalf of the Trust, (a) a Registration
Statement on Form S-3 (the "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments to the
1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration
Statement"), including all pre-effective and post-effective
amendments thereto, relating to the registration of the Preferred
Securities of the Trust under Section 12(b) of the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York
Stock Exchange (the "Exchange") and execute on behalf of the
Trust a listing application and all other applications, state-
ments, certificates, agreements and other instruments as shall be
necessary or desirable to cause the Preferred Securities to be
listed on the Exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and
other papers and documents as shall be necessary or desirable to
register the Preferred Securities under the securities or blue
sky laws of such jurisdictions as the Sponsor, on behalf of the
Trust, may deem necessary or desirable; and (iv) to execute on
behalf of the Trust that certain Underwriting Agreement among the
Trust, the Sponsor and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as representatives of the Underwriters named in
such Underwriting Agreement, substantially in the form included
as an exhibit to the 1933 Act Registration Statement. In the
event that any filing referred to above is required by the rules
and regulations of the Commission, the Exchange or state
securities or blue sky laws, to be executed on behalf of the
Trust by the Trustees, Lawrence J. Pierce and Dorothy K. Mercer,
in his/her capacity as Trustee of the Trust, is hereby authorized
and, to the extent so required, directed to join in any such
filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that Wilmington Trust Company in
its capacity as Trustee of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws.
In connection with the filings referred to above, the Sponsor and
each Trustee other than Wilmington Trust Company, solely in
his/her capacity as Trustee of the Trust, hereby constitutes and
appoints Lawrence J. Pierce and Dorothy K. Mercer, each of them,
as its or his/her true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for the
Sponsor or such Trustee or in the Sponsor's or such Trustee's
name, place and stead, in any and all capacities, to sign any and
all amendments, including post-effective amendments, to any such
filings, including the 1933 Act Registration Statement and the
1934 Act Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Commission, the Exchange and administrators of state
securities or blue sky laws, granting unto said attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the
Sponsor or such Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their respective substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Declaration of Trust may be executed in one
or more counterparts.
6. The number of Trustees initially shall be two (2)
and thereafter the number of Trustees shall be such number as
shall be fixed from time to time by a written instrument signed
by the Sponsor which may increase or decrease the number of
Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall be either a natural person
who is a resident of the State of Delaware, or, if not a natural
person, an entity which has its principal place of business in
the State of Delaware and otherwise meets the requirements of
applicable Delaware law. Subject to the foregoing, the Sponsor
is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty (30) days prior
written notice to Sponsor.
7. Notwithstanding any other provision of this
Declaration of Trust, Wilmington Trust Company, in its capacity
as Trustee of the Trust, shall not be entitled to exercise any of
the powers, nor shall Wilmington Trust Company, in its capacity
as Trustee or Property Trustee of the Trust, have any duties and
responsibilities of the other Trustees described in this
Declaration of Trust. Wilmington Trust Company, in its capacity
as Trustee of the Trust, shall be a Trustee for the sole and
limited purpose of fulfilling the requirements of Section 3807 of
the Business Trust Act.
8. No Trustee, any affiliate of any Trustee or any
officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee or any employee or agent
of the Trust or its affiliates (each, an "Indemnified Person" and
collectively, the "Indemnified Persons"), shall be liable,
responsible or accountable, in damages or otherwise, to the Trust
or any other Indemnified Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by
such Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified
Person by this Declaration of Trust or by law, except that an
Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross
negligence or willful misconduct with respect to such acts or
omissions.
9. To the fullest extent permitted by applicable law,
the Sponsor shall indemnify and hold harmless each Indemnified
Person from and against any loss, damage or claim incurred by
such Indemnified Person by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration of
Trust, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by
such Indemnified Person by reason of gross negligence or willful
misconduct with respect to such acts or omissions.
10. To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Person
in defending any claim, demand, action, suit or proceeding shall
from time to time be advanced by the Sponsor prior to the final
disposition of such claim, demand, action, suit or proceeding
upon receipt by the Sponsor of an undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 9.
11. Wilmington Trust Company may engage in or possess
an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar
to the business of the Trust, and the Trust, the Sponsor and the
other Trustees shall have no rights by virtue of this Declaration
of Trust in and to such independent ventures of the income or
profits derived therefrom, and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be
deemed wrongful or improper. Wilmington Trust Company shall not
be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the
Trust, and Wilmington Trust Company shall have the right to take
for its own account (individually or as a partner or fiduciary)
or to recommend to others and such particular investment or other
opportunity. Wilmington Trust Company may engage or be
interested in any financial or other transactions with the
Sponsor or any affiliate of the Sponsor, or may act on any
committee or body of holders of securities or other obligations
of the Sponsor or its affiliates.
12. This Declaration of Trust shall be governed by,
and construed in accordance with, the laws of the State of
Delaware (without regard to conflict of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year
first above written.
THE WASHINGTON WATER POWER COMPANY, LAWRENCE J. PIERCE,
as Sponsor not in his individual
capacity but solely as
Regular Trustee
By: /s/ Dorothy K. Mercer /s/ Lawrence J. Pierce
--------------------------- ------------------------
Name: Dorothy K. Mercer
Title: Assistant Treasurer
WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as Trustee
By: /s/ Donald G. MacKelcan
----------------------------
Name: Donald G. MacKelcan
Title: Assistant Vice President
Exhibit 4(a)-5
DECLARATION OF TRUST
OF
WASHINGTON WATER POWER CAPITAL II
DECLARATION OF TRUST, dated as of November 4, 1996
(this "Declaration of Trust"), by and among The Washington Water
Power Company, a Washington corporation, as Sponsor, Lawrence J.
Pierce, as Regular Trustee, and Wilmington Trust Company, a
Delaware banking corporation, not in their individual capacities
but solely as trustees of the Trust, as defined below (collec-
tively, the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as
"Washington Water Power Capital II" (the "Trust"), in which name
the Trustees, or the Sponsor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts,
and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and
sets over to the Trustees the sum of $10. The Trustees hereby
acknowledge receipt of such amount in trust from the Sponsor,
which amount shall constitute the initial trust estate. The
Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto
that the Trust created hereby constitute a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section
-------
3801 et seq., as it may be amended from time to time, or any
-- ----
successor legislation (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The
Trustees hereby are authorized and directed to execute and file a
certificate of trust with the Secretary of State of the State of
Delaware in accordance with the provisions of the Business Trust
Act.
3. The Sponsor and the Trustees will enter into an
Amended and Restated Declaration of Trust, satisfactory to each
such party and substantially in the form to be included as an
exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust
created hereby and the issuance of the Preferred Securities and
Common Securities referred to therein. Prior to the execution
and delivery of such Amended and Restated Declaration of Trust,
the Trustees shall not have any duty or obligation hereunder or
with respect of the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals
required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and
direct the Sponsor, as the Sponsor of the Trust, (i) to file with
the Securities and Exchange Commission (the "Commission") and
execute, in each case on behalf of the Trust, (a) a Registration
Statement on Form S-3 (the "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments to the
1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration
Statement"), including all pre-effective and post-effective
amendments thereto, relating to the registration of the Preferred
Securities of the Trust under Section 12(b) of the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York
Stock Exchange (the "Exchange") and execute on behalf of the
Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities
to be listed on the Exchange; (iii) to file and execute on behalf
of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of
process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the
securities or blue sky laws of such jurisdictions as the Sponsor,
on behalf of the Trust, may deem necessary or desirable; and (iv)
to execute on behalf of the Trust that certain Underwriting
Agreement among the Trust, the Sponsor and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, as representatives of the
Underwriters named in such Underwriting Agreement, substantially
in the form included as an exhibit to the 1933 Act Registration
Statement. In the event that any filing referred to above is
required by the rules and regulations of the Commission, the
Exchange or state securities or blue sky laws, to be executed on
behalf of the Trust by the Trustees, Lawrence J. Pierce and
Dorothy K. Mercer, in his/her capacity as Trustee of the Trust,
is hereby authorized and, to the extent so required, directed to
join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that Wilmington
Trust Company in its capacity as Trustee of the Trust, shall not
be required to join in any such filing or execute on behalf of
the Trust any such document unless required by the rules and
regulations of the Commission, the Exchange or state securities
or blue sky laws. In connection with the filings referred to
above, the Sponsor and each Trustee other than Wilmington Trust
Company, solely in his/her capacity as Trustee of the Trust,
hereby constitutes and appoints Lawrence J. Pierce and Dorothy K.
Mercer, each of them, as its or his/her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Sponsor or such Trustee or in the
Sponsor's or such Trustee's name, place and stead, in any and all
capacities, to sign any and all amendments, including post-
effective amendments, to any such filings, including the 1933 Act
Registration Statement and the 1934 Act Registration Statement,
and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Commission, the
Exchange and administrators of state securities or blue sky laws,
granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as
fully to all intents and purposes as the Sponsor or such Trustee
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their
respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one
or more counterparts.
6. The number of Trustees initially shall be two (2)
and thereafter the number of Trustees shall be such number as
shall be fixed from time to time by a written instrument signed
by the Sponsor which may increase or decrease the number of
Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall be either a natural person
who is a resident of the State of Delaware, or, if not a natural
person, an entity which has its principal place of business in
the State of Delaware and otherwise meets the requirements of
applicable Delaware law. Subject to the foregoing, the Sponsor
is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty (30) days prior
written notice to Sponsor.
7. Notwithstanding any other provision of this
Declaration of Trust, Wilmington Trust Company, in its capacity
as Trustee of the Trust, shall not be entitled to exercise any of
the powers, nor shall Wilmington Trust Company, in its capacity
as Trustee or Property Trustee of the Trust, have any duties and
responsibilities of the other Trustees described in this Declara-
tion of Trust. Wilmington Trust Company, in its capacity as
Trustee of the Trust, shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the
Business Trust Act.
8. No Trustee, any affiliate of any Trustee or any
officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee or any employee or agent
of the Trust or its affiliates (each, an "Indemnified Person" and
collectively, the "Indemnified Persons"), shall be liable,
responsible or accountable, in damages or otherwise, to the Trust
or any other Indemnified Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by
such Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified
Person by this Declaration of Trust or by law, except that an
Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross
negligence or willful misconduct with respect to such acts or
omissions.
9. To the fullest extent permitted by applicable law,
the Sponsor shall indemnify and hold harmless each Indemnified
Person from and against any loss, damage or claim incurred by
such Indemnified Person by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration of
Trust, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by
such Indemnified Person by reason of gross negligence or willful
misconduct with respect to such acts or omissions.
10. To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Person
in defending any claim, demand, action, suit or proceeding shall
from time to time be advanced by the Sponsor prior to the final
disposition of such claim, demand, action, suit or proceeding
upon receipt by the Sponsor of an undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 9.
11. Wilmington Trust Company may engage in or possess
an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar
to the business of the Trust, and the Trust, the Sponsor and the
other Trustees shall have no rights by virtue of this Declaration
of Trust in and to such independent ventures of the income or
profits derived therefrom, and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be
deemed wrongful or improper. Wilmington Trust Company shall not
be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the
Trust, and Wilmington Trust Company shall have the right to take
for its own account (individually or as a partner or fiduciary)
or to recommend to others and such particular investment or other
opportunity. Wilmington Trust Company may engage or be
interested in any financial or other transactions with the
Sponsor or any affiliate of the Sponsor, or may act on any
committee or body of holders of securities or other obligations
of the Sponsor or its affiliates.
12. This Declaration of Trust shall be governed by,
and construed in accordance with, the laws of the State of
Delaware (without regard to conflict of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year
first above written.
THE WASHINGTON WATER POWER COMPANY, LAWRENCE J. PIERCE,
as Sponsor not in his individual
capacity but solely as
Regular Trustee
By: /s/ Dorothy K. Mercer /s/ Lawrence J. Pierce
------------------------ -----------------------
Name: Dorothy K. Mercer
Title: Assistant Treasurer
WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as Trustee
By: /s/ Donald G. MacKelcan
------------------------
Name: Donald G. MacKelcan
Title: Assistant Vice President
Exhibit 4(a)-6
DECLARATION OF TRUST
OF
WASHINGTON WATER POWER CAPITAL III
DECLARATION OF TRUST, dated as of November 4, 1996
(this "Declaration of Trust"), by and among The Washington Water
Power Company, a Washington corporation, as Sponsor, Lawrence J.
Pierce, as Regular Trustee, and Wilmington Trust Company, a
Delaware banking corporation, not in their individual capacities
but solely as trustees of the Trust, as defined below (collec-
tively, the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "Wash-
ington Water Power Capital III" (the "Trust"), in which name the
Trustees, or the Sponsor to the extent provided herein, may
conduct the business of the Trust, make and execute contracts,
and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and
sets over to the Trustees the sum of $10. The Trustees hereby
acknowledge receipt of such amount in trust from the Sponsor,
which amount shall constitute the initial trust estate. The
Trustees hereby declare that they will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto
that the Trust created hereby constitute a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section
-------
3801 et seq., as it may be amended from time to time, or any
-- ----
successor legislation (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The
Trustees hereby are authorized and directed to execute and file
a certificate of trust with the Secretary of State of the State
of Delaware in accordance with the provisions of the Business
Trust Act.
3. The Sponsor and the Trustees will enter into an
Amended and Restated Declaration of Trust, satisfactory to each
such party and substantially in the form to be included as an
exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust
created hereby and the issuance of the Preferred Securities and
Common Securities referred to therein. Prior to the execution
and delivery of such Amended and Restated Declaration of Trust,
the Trustees shall not have any duty or obligation hereunder or
with respect of the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals
required by applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and
direct the Sponsor, as the Sponsor of the Trust, (i) to file with
the Securities and Exchange Commission (the "Commission") and
execute, in each case on behalf of the Trust, (a) a Registration
Statement on Form S-3 (the "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments to the
1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration
Statement"), including all pre-effective and post-effective
amendments thereto, relating to the registration of the Preferred
Securities of the Trust under Section 12(b) of the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York
Stock Exchange (the "Exchange") and execute on behalf of the
Trust a listing application and all other applications, state-
ments, certificates, agreements and other instruments as shall be
necessary or desirable to cause the Preferred Securities to be
listed on the Exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and
other papers and documents as shall be necessary or desirable to
register the Preferred Securities under the securities or blue
sky laws of such jurisdictions as the Sponsor, on behalf of the
Trust, may deem necessary or desirable; and (iv) to execute on
behalf of the Trust that certain Underwriting Agreement among the
Trust, the Sponsor and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as representatives of the Underwriters named in
such Underwriting Agreement, substantially in the form included
as an exhibit to the 1933 Act Registration Statement. In the
event that any filing referred to above is required by the rules
and regulations of the Commission, the Exchange or state securi-
ties or blue sky laws, to be executed on behalf of the Trust by
the Trustees, Lawrence J. Pierce and Dorothy K. Mercer, in
his/her capacity as Trustee of the Trust, is hereby authorized
and, to the extent so required, directed to join in any such
filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that Wilmington Trust Company in
its capacity as Trustee of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws.
In connection with the filings referred to above, the Sponsor and
each Trustee other than Wilmington Trust Company, solely in
his/her capacity as Trustee of the Trust, hereby constitutes and
appoints Lawrence J. Pierce and Dorothy K. Mercer, each of them,
as its or his/her true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for the
Sponsor or such Trustee or in the Sponsor's or such Trustee's
name, place and stead, in any and all capacities, to sign any and
all amendments, including post-effective amendments, to any such
filings, including the 1933 Act Registration Statement and the
1934 Act Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Commission, the Exchange and administrators of state
securities or blue sky laws, granting unto said attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connec-
tion therewith, as fully to all intents and purposes as the
Sponsor or such Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their respective substitute or substi-
tutes, shall do or cause to be done by virtue hereof.
5. This Declaration of Trust may be executed in one
or more counterparts.
6. The number of Trustees initially shall be two (2)
and thereafter the number of Trustees shall be such number as
shall be fixed from time to time by a written instrument signed
by the Sponsor which may increase or decrease the number of
Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall be either a natural person
who is a resident of the State of Delaware, or, if not a natural
person, an entity which has its principal place of business in
the State of Delaware and otherwise meets the requirements of
applicable Delaware law. Subject to the foregoing, the Sponsor
is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty (30) days prior
written notice to Sponsor.
7. Notwithstanding any other provision of this
Declaration of Trust, Wilmington Trust Company, in its capacity
as Trustee of the Trust, shall not be entitled to exercise any of
the powers, nor shall Wilmington Trust Company, in its capacity
as Trustee or Property Trustee of the Trust, have any duties and
responsibilities of the other Trustees described in this Declara-
tion of Trust. Wilmington Trust Company, in its capacity as
Trustee of the Trust, shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the
Business Trust Act.
8. No Trustee, any affiliate of any Trustee or any
officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee or any employee or agent
of the Trust or its affiliates (each, an "Indemnified Person" and
collectively, the "Indemnified Persons"), shall be liable,
responsible or accountable, in damages or otherwise, to the Trust
or any other Indemnified Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by
such Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified
Person by this Declaration of Trust or by law, except that an
Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross
negligence or willful misconduct with respect to such acts or
omissions.
9. To the fullest extent permitted by applicable law,
the Sponsor shall indemnify and hold harmless each Indemnified
Person from and against any loss, damage or claim incurred by
such Indemnified Person by reason of any act or omission per-
formed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration of
Trust, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by
such Indemnified Person by reason of gross negligence or willful
misconduct with respect to such acts or omissions.
10. To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Person
in defending any claim, demand, action, suit or proceeding shall
from time to time be advanced by the Sponsor prior to the final
disposition of such claim, demand, action, suit or proceeding
upon receipt by the Sponsor of an undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 9.
11. Wilmington Trust Company may engage in or possess
an interest in other business ventures of any nature or descrip-
tion, independently or with others, similar or dissimilar to the
business of the Trust, and the Trust, the Sponsor and the other
Trustees shall have no rights by virtue of this Declaration of
Trust in and to such independent ventures of the income or
profits derived therefrom, and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be
deemed wrongful or improper. Wilmington Trust Company shall not
be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a charac-
ter that, if presented to the Trust, could be taken by the Trust,
and Wilmington Trust Company shall have the right to take for its
own account (individually or as a partner or fiduciary) or to
recommend to others and such particular investment or other
opportunity. Wilmington Trust Company may engage or be interest-
ed in any financial or other transactions with the Sponsor or any
affiliate of the Sponsor, or may act on any committee or body of
holders of securities or other obligations of the Sponsor or its
affiliates.
12. This Declaration of Trust shall be governed by,
and construed in accordance with, the laws of the State of
Delaware (without regard to conflict of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year
first above written.
THE WASHINGTON WATER POWER COMPANY, LAWRENCE J. PIERCE,
as Sponsor not in his individual
capacity but solely as
Regular Trustee
By: /s/ Dorothy K. Mercer /s/ Lawrence J. Pierce
--------------------- ----------------------
Name: Dorothy K. Mercer
Title: Assistant Treasurer
WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as Trustee
By: /s/ Donald G. MacKelcan
-------------------------
Name: Donald G. MacKelcan
Title: Assistant Vice President
EXHIBIT 4(a)-7
=====================================
AMENDED AND RESTATED DECLARATION
OF TRUST
WASHINGTON WATER POWER CAPITAL I
Dated as of ________, 199_
=====================================
[PAGE BREAK]
TABLE OF CONTENTS
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . -2-
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . -7-
SECTION 2.2 Lists of Holders of Securities . . . . . -8-
SECTION 2.3 Reports by the Institutional Trustee . . -8-
SECTION 2.4 Periodic Reports to Institutional
Trustee . . . . . . . . . . . . . . . . . -9-
SECTION 2.5 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . -9-
SECTION 2.6 Events of Default; Waiver . . . . . . . . -9-
SECTION 2.7 Notice of Event of Default . . . . . . -10-
ARTICLE III
ORGANIZATION
SECTION 3.1 Name . . . . . . . . . . . . . . . . . -11-
SECTION 3.2 Office . . . . . . . . . . . . . . . . -11-
SECTION 3.3 Purpose . . . . . . . . . . . . . . . . -11-
SECTION 3.4 Authority . . . . . . . . . . . . . . . -11-
SECTION 3.5 Title to Property of the Trust . . . . -12-
SECTION 3.6 Powers and Duties of the Regular
Trustees . . . . . . . . . . . . . . . -12-
SECTION 3.7 Prohibition of Actions by the Trust and
the Trustees . . . . . . . . . . . . . -15-
SECTION 3.8 Powers and Duties of the Institutional
Trustee . . . . . . . . . . . . . . . . -16-
SECTION 3.9 Certain Duties and Responsibilities. . -18-
SECTION 3.10 Certain Rights of Institutional Trustee -21-
SECTION 3.11 Delaware Trustee . . . . . . . . . . . -24-
SECTION 3.12 Execution of Documents . . . . . . . . -24-
SECTION 3.13 Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . -24-
SECTION 3.14 Duration of Trust . . . . . . . . . . . -24-
SECTION 3.15 Mergers . . . . . . . . . . . . . . . . -25-
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities -27-
SECTION 4.2 Responsibilities of the Sponsor . . . . -27-
[PAGE BREAK]
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees . . . . . . . . . . -28-
SECTION 5.2 Delaware Trustee . . . . . . . . . . . -29-
SECTION 5.3 Institutional Trustee; Eligibility . . -29-
SECTION 5.4 Certain Qualifications of Regular
Trustees and Delaware Trustee Generally -30-
SECTION 5.5 Regular Trustees . . . . . . . . . . . -31-
SECTION 5.6 Delaware Trustee. . . . . . . . . . . . -31-
SECTION 5.7 Appointment, Removal and Resignation of
Trustees. . . . . . . . . . . . . . . . -31-
SECTION 5.8 Vacancies among Trustees . . . . . . . -33-
SECTION 5.9 Effect of Vacancies . . . . . . . . . . -33-
SECTION 5.10 Meetings. . . . . . . . . . . . . . . . -33-
SECTION 5.11 Delegation of Power . . . . . . . . . . -34-
Section 5.12 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . -34-
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions . . . . . . . . . . . . . -34-
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities -35-
SECTION 7.2 Paying Agent . . . . . . . . . . . . . -36-
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust . . . . . . . . . -36-
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities . . . . . . . . -37-
SECTION 9.2 Transfer of Certificates . . . . . . . -38-
SECTION 9.3 Deemed Security Holders . . . . . . . . -39-
SECTION 9.4 Preferred Security Certificates . . . . -39-
SECTION 9.5 Mutilated, Destroyed, Lost or Stolen
Certificates . . . . . . . . . . . . . -39-
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability . . . . . . . . . . . . . . . -40-
SECTION 10.2 Exculpation . . . . . . . . . . . . . . -40-
SECTION 10.3 Fiduciary Duty . . . . . . . . . . . . -41-
SECTION 10.4 Indemnification . . . . . . . . . . . . -42-
SECTION 10.5 Outside Businesses . . . . . . . . . . -45-
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year . . . . . . . . . . . . . . -46-
SECTION 11.2 Certain Accounting Matters . . . . . . -46-
SECTION 11.3 Banking . . . . . . . . . . . . . . . . -47-
SECTION 11.4 Withholding . . . . . . . . . . . . . . -47-
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments . . . . . . . . . . . . . . -48-
SECTION 12.2 Meetings of the Holders of Securities;
Action by Written Consent . . . . . . . -50-
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of
Institutional Trustee . . . . . . . . . -52-
SECTION 13.2 Representations and Warranties of
Delaware Trustee . . . . . . . . . . . -52-
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices. . . . . . . . . . . . . . . . -53-
SECTION 14.2 Governing Law . . . . . . . . . . . . . -55-
SECTION 14.3 Intention of the Parties . . . . . . . -55-
SECTION 14.4 Headings . . . . . . . . . . . . . . . -55-
SECTION 14.5 Successors and Assigns . . . . . . . . -55-
SECTION 14.6 Partial Enforceability . . . . . . . . -55-
SECTION 14.7 Counterparts . . . . . . . . . . . . . -55-
ANNEX I TERMS OF SECURITIES . . . . . . . . . . . . . I-1
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE . . . A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE . . . . A2-1
[PAGE BREAK]
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
___________________ __________
310(a) 5.3(a)
310(b) 5.3(c)
310(c) Inapplicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(e) 1.1 (Definition
of Officer's Certificate)
314(f) Inapplicable
315(a) 3.9(a)
315(b) 2.7
315(c) 3.9(b)
315(d) 3.9(c)
316(a) 2.6; Annex I,
Section 5
316(c) 3.6(e)
317(a) 3.8(h)
317(b) 3.8(i)
318 2.1
_______________________
* This Cross-Reference Table does not constitute part of the
Declaration and shall not affect the interpretation of any
of its terms or provisions.
[PAGE BREAK]
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
WASHINGTON WATER POWER CAPITAL I
_________, 199_
AMENDED AND RESTATED DECLARATION OF TRUST
("Declaration") dated and effective as of _________, 199_, by the
Trustees (as defined herein), the Sponsor (as defined herein) and
by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established
Washington Water Power Capital I (the "Trust"), a trust under the
Delaware Business Trust Act pursuant to a Declaration of Trust
dated as of November 4, 1996 (the "Original Declaration"), and a
Certificate of Trust filed with the Secretary of State of the
State of Delaware on November 4, 1996, for the sole purpose of
issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Debentures of the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the
Trust have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision
of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties
hereto to continue the Trust as a business trust under the
Business Trust Act and that this Declaration constitute the
governing instrument of such business trust, the Trustees declare
that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the
assets of the Trust issued hereunder, subject to the provisions
of this Declaration.
[PAGE BREAK]
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 DEFINITIONS.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has
the same meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Declaration as modified,
supplemented or amended from time to time;
(d) all references in this Declaration to Articles and
Sections and Annexes and Exhibits are to Articles and
Sections of and Annexes and Exhibits to this Declaration
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Declaration unless otherwise
defined in this Declaration or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural
and vice versa.
"AFFILIATE" has the same meaning as given to that term
in Rule 405 of the Securities Act or any successor rule
thereunder.
"AGENT" means any Paying Agent.
"AUTHORIZED OFFICER" of a Person means any Person that
is authorized to legally bind such Person.
"BUSINESS DAY" means any day other than Saturday,
Sunday or any other day on which banking institutions in the City
of Wilmington, Delaware and The City of New York are authorized
or required by any applicable law to close.
"BUSINESS TRUST ACT" means Chapter 38 of Title 12 of
the Delaware Code, 12 DEL. CODE 3801 et seq., as it may
be amended from time to time, or any successor legislation.
"CERTIFICATE" means a Common Security Certificate or a
Preferred Security Certificate.
"CLOSING DATE" means the "CLOSING TIME" and each "DATE
OF DELIVERY" under the Underwriting Agreement.
"CODE" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor legislation.
"COMMISSION" means the Securities and Exchange
Commission.
"COMMON SECURITIES" has the meaning specified in
Section 7.1.(a).
"COMMON SECURITIES GUARANTEE" means the guarantee
agreement to be dated as of ________, 199_ of the Sponsor in
respect of the Common Securities.
"COMMON SECURITY CERTIFICATE" means a certificate in
fully registered form representing a Common Security
substantially in the form of Exhibit A-2.
"COMPANY INDEMNIFIED PERSON" means (a) any Regular
Trustee; (b) any Affiliate of any Regular Trustee; (c) any
officers, directors, shareholders, members, partners, employees,
representatives or agents of any Regular Trustee; or (d) any
officer, employee or agent of the Trust or its Affiliates.
"CORPORATE TRUST OFFICE" means the office of the
Institutional Trustee at which the corporate trust business of
the Institutional Trustee shall, at any particular time, be
principally administered, which office at the date of execution
of this Agreement is located at Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890.
"COVERED PERSON" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent
of (i) the Trust or (ii) the Trust's Affiliates; and (b) any
Holder of Securities.
"DEBENTURE ISSUER" means The Washington Water Power
Company, a Washington corporation, or any successor entity
resulting from any consolidation, amalgamation, merger or other
business combination, in its capacity as issuer of the Debentures
under the Indenture.
"DEBENTURE TRUSTEE" means Wilmington Trust Company, a
Delaware banking corporation, as trustee under the Indenture
until a successor is appointed thereunder, and thereafter means
such successor trustee.
"DEBENTURES" means the series of Debentures to be
issued by the Debenture Issuer under the Indenture to be held by
the Institutional Trustee.
"DELAWARE TRUSTEE" has the meaning set forth in Section
5.2.
"DEPOSITARY" has the meaning set forth in Section 9.1.
"DISTRIBUTION" means a distribution payable to Holders
of Securities in accordance with Section 6.1.
"EVENT OF DEFAULT", in respect of the Securities, means
an Event of Default as defined in the Indenture, so long as the
same shall be continuing under the Indenture.
"EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended from time to time, or any successor legislation.
"FIDUCIARY INDEMNIFIED PERSON" has the meaning set
forth in Section 10.4(b).
"HOLDER" means a Person in whose name a Certificate
representing a Security is registered, such Person being a
beneficial owner within the meaning of the Business Trust Act.
"INDEMNIFIED PERSON" means a Company Indemnified Person
or a Fiduciary Indemnified Person.
"INDENTURE" means the Indenture dated as of _______ 1,
199_, between the Debenture Issuer and the Debenture Trustee, as
supplemented.
"INSTITUTIONAL TRUSTEE" has the meaning set forth in
Section 5.3.
"INSTITUTIONAL TRUSTEE ACCOUNT" has the meaning set
forth in Section 3.8(c)(i).
"INVESTMENT COMPANY" means an investment company as
defined in the Investment Company Act.
"INVESTMENT COMPANY ACT" means the Investment Company
Act of 1940, as amended from time to time, or any successor
legislation.
"LEGAL ACTION" has the meaning set forth in Section
3.6(g).
"MAJORITY IN LIQUIDATION AMOUNT OF THE SECURITIES"
means, except as provided in the terms of the Preferred
Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities voting together as a single class or, as
the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting
separately as a class, who are the record owners of more than 50%
of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities
of the relevant class.
"MINISTERIAL ACTION" has the meaning set forth in the
terms of the Securities as set forth in Annex I.
"OFFICER'S CERTIFICATE" means, with respect to any
Person, a certificate signed by an Authorized Officer of such
Person. Any Officer's Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Declaration shall include:
(a) a statement that each officer signing the Officers'
Certificate has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation upon which the statements contained
in such Officer's Certificate are based;
(c) a statement that, in the opinion of such officer, such
officer has made such examination or investigation as is
necessary to enable such officer 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 such
officer, such condition or covenant has been complied with.
"PAYING AGENT" has the meaning specified in Section
7.2.
"PERSON" means a legal person, including any
individual, corporation, estate, partnership, joint venture,
association, joint stock company, limited liability company,
trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"PREFERRED SECURITIES" has the meaning specified in
Section 7.1(a).
"PREFERRED SECURITIES GUARANTEE" means the guarantee
agreement to be dated as of ________, 199_, of the Sponsor in
respect of the Preferred Securities.
"PREFERRED SECURITY CERTIFICATE" means a certificate
representing a Preferred Security substantially in the form of
Exhibit A-1.
"QUORUM" means a majority of the Regular Trustees or,
if there are only two Regular Trustees, both of them.
"REGISTRAR" means the registrar for the Preferred
Securities appointed by the Trust and shall initially be
Wilmington Trust Company.
"REGULAR TRUSTEE" has the meaning set forth in Section
5.1.
"RELATED PARTY" means, with respect to the Sponsor, any
direct or indirect wholly owned subsidiary of the Sponsor or any
other Person that owns, directly or indirectly, 100% of the
outstanding voting securities of the Sponsor.
"RESPONSIBLE OFFICER" means, with respect to the
Institutional Trustee, any officer of the Institutional Trustee
assigned by the Institutional Trustee to administer its corporate
trust matters.
"RULE 3A-5" means Rule 3a-5 under the Investment
Company Act, or any successor rule or regulation.
"SECURITIES" means the Common Securities and the
Preferred Securities.
"SECURITIES ACT" means the Securities Act of 1933, as
amended from time to time, or any successor legislation.
"SECURITIES GUARANTEES" means the Common Securities
Guarantee and the Preferred Securities Guarantee.
"SPONSOR" means The Washington Water Power Company, a
Washington corporation, or any successor entity resulting from
any consolidation, amalgamation, merger or other business
combination, in its capacity as sponsor of the Trust.
"TAX EVENT" has the meaning set forth in Annex I
hereto.
"10% IN LIQUIDATION AMOUNT OF THE SECURITIES" means,
except as provided in the terms of the Preferred Securities or by
the Trust Indenture Act, Holder(s) of outstanding Securities
voting together as a single class or, as the context may require,
Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who
are the record owners of 10% or more of the aggregate liquidation
amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"TRANSFER AGENT" means the transfer agent for the
Preferred Securities appointed by the Trust and shall initially
be Wilmington Trust Company.
"TREASURY REGULATIONS" means the income tax
regulations, including temporary and proposed regulations,
promulgated under the Code by the United States Treasury, as such
regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"TRUSTEE" or "Trustees" means each Person who has
signed this Declaration as a trustee, so long as such Person
shall continue in office in accordance with the terms hereof, and
all other Persons who may from time to time be duly appointed,
qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the
Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
"TRUST INDENTURE ACT" means the Trust Indenture Act of
1939, as amended from time to time, or any successor legislation.
"TRUST PROPERTY" means (i) the Debentures, (ii) any
cash or deposit in, or owing to, the Institutional Trustee
Account and (iii) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being
held by the Institutional Trustee pursuant to the trusts of this
Declaration.
"UNDERWRITING AGREEMENT" means the Underwriting
Agreement for the offering and sale of Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Declaration is subject to the provisions of
the Trust Indenture Act that are required to be part of this
Declaration and shall, to the extent applicable, be governed by
such provisions.
(b) The Institutional Trustee shall be the only
Trustee which is a Trustee for the purposes of the Trust
Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties
imposed by 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as
equity securities representing undivided beneficial interests in
the assets of the Trust.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES.
(a) Each of the Sponsor and the Regular Trustees on
behalf of the Trust shall provide the Institutional Trustee (i)
within 14 days after each record date for payment of
Distributions, a list, in such form as the Institutional Trustee
may reasonably require, of the names and addresses of the Holders
of the Securities ("List of Holders") as of such record date;
provided, however, that neither the Sponsor nor the Regular
Trustees on behalf of the Trust shall be obligated to provide
such List of Holders at any time the List of Holders does not
differ from the most recent List of Holders given to the
Institutional Trustee by the Sponsor and the Regular Trustees on
behalf of the Trust; and provided, further, that in any event
such List of Holders will be provided to the Institutional
Trustee not less than once every 6 months pursuant to this
Section 2.2(a)(i), and (ii) at any other time, within 30 days of
receipt by the Trust of a written request for a List of Holders
as of a date no more than 14 days before such List of Holders is
given to the Institutional Trustee. The Institutional Trustee
shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given
to it or which it receives in the capacity as Paying Agent (if
acting in such capacity) provided, however, that the
Institutional Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its
obligations under 311(a), 311(b) and 312(b) of
the Trust Indenture Act.
SECTION 2.3 REPORTS BY THE INSTITUTIONAL TRUSTEE.
Within 60 days after May 15 of each year, the
Institutional Trustee shall provide to the Holders of the
Preferred Securities such reports as are required by
313 of the Trust Indenture Act, if any, in the form and in the
manner provided by 313 of the Trust Indenture Act. The
Institutional Trustee shall also comply with the requirements of
313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS TO INSTITUTIONAL TRUSTEE.
Each of the Sponsor and the Regular Trustees on behalf
of the Trust shall provide to the Institutional Trustee such
documents, reports and information as required by 314
(if any) and the compliance certificate required by 314
of the Trust Indenture Act in the form, in the manner and at the
times required by 314 of the Trust Indenture Act.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Regular Trustees on behalf
of the Trust shall provide to the Institutional Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Declaration that relate to any of the
matters set forth in 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer
pursuant to 314(c)(1) may be given in the form of an
Officer's Certificate.
SECTION 2.6 EVENTS OF DEFAULT; WAIVER.
(a) The Holders of a Majority in liquidation amount of
Preferred Securities may, by vote, on behalf of the Holders of
all of the Preferred Securities, waive any past Event of Default
in respect of the Preferred Securities and its consequences;
provided, however, that if the underlying Event of Default under
the Indenture is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be waivable.
Upon such waiver, any such default shall cease to
exist, and any Event of Default with respect to the Preferred
Securities arising therefrom shall be deemed to have been cured,
for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or an Event of Default
with respect to the Preferred Securities or impair any right
consequent thereon. Any waiver by the Holders of the Preferred
Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the
Holders of the Common Securities of any such Event of Default
with respect to the Common Securities for all purposes of this
Declaration without any further act, vote, or consent of the
Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of
the Common Securities may, by vote, on behalf of the Holders of
all of the Common Securities, waive any past Event of Default
with respect to the Common Securities and its consequences;
provided, however, that if the underlying Event of Default under
the Indenture is not waivable under the Indenture, except where
the Holders of the Common Securities are deemed to have waived
such Event of Default under the Declaration as provided below in
this Section 2.6(b), the Event of Default under the Declaration
shall also not be waivable; and
provided, further, that, each Holder of Common Securities will be
deemed to have waived any such Event of Default and all Events of
Default with respect to the Common Securities and its
consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so cured,
waived or otherwise eliminated, the Institutional Trustee will be
deemed to be acting solely on behalf of the Holders of the
Preferred Securities and only the Holders of the Preferred
Securities will have the right to direct the Institutional
Trustee in accordance with the terms of the Securities. Subject
to the foregoing provisions of this Section 2.6(b), upon such
waiver, any such default shall cease to exist and any Event of
Default with respect to the Common Securities arising therefrom
shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the
Indenture by the Institutional Trustee at the direction of the
Holders of the Preferred Securities shall constitute a waiver of
the corresponding Event of Default under this Declaration.
SECTION 2.7 NOTICE OF EVENT OF DEFAULT.
The Institutional Trustee shall give notice of any
default hereunder to the Holders of Securities 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 hereunder arising out of
a default of the character specified in Section 701(c) of the
Indenture, 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
3.9, the Institutional Trustee shall not be deemed to have
knowledge of such default unless either (i) a Responsible Officer
of the Institutional Trustee shall have actual knowledge of such
default or (ii) the Institutional Trustee shall have received
written notice thereof from the Debenture Issuer, the Sponsor,
any Regular Trustee 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.
ARTICLE III
ORGANIZATION
SECTION 3.1 NAME.
The Trust is named "Washington Water Power Capital I,"
as such name may be modified from time to time by the Regular
Trustees following written notice to the Holders of Securities.
The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Regular Trustees.
SECTION 3.2 OFFICE.
The address of the principal office of the Trust is c/o
The Washington Water Power Company, 1411 East Mission Avenue,
Spokane, Washington 99202. On ten Business Days' written notice
to the Holders of Securities, the Regular Trustees may designate
another principal office.
SECTION 3.3 PURPOSE.
The exclusive purposes and functions of the Trust are
(a) to issue and sell Securities and use the proceeds from such
sale to acquire the Debentures, and (b) except as otherwise
limited herein, to engage in only those other activities
necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments,
pledge any of its assets, or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust to be treated
for United States federal income tax purposes as an association
taxable as a corporation.
SECTION 3.4 AUTHORITY.
Subject to the limitations provided in this Declaration
and to the specific duties of the Institutional Trustee, the
Regular Trustees shall have exclusive and complete authority to
carry out the purposes of the Trust. An action taken by the
Regular Trustees in accordance with their powers shall constitute
the act of and serve to bind the Trust and an action taken by the
Institutional Trustee on behalf of the Trust in accordance with
its powers shall constitute the act of and serve to bind the
Trust. In dealing with the Trustees acting on behalf of the
Trust, no person shall be required to inquire into the authority
of the Trustees to bind the Trust. Persons dealing with the
Trust are entitled to rely conclusively on the power and
authority of the Trustees as set forth in this Declaration.
SECTION 3.5 TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the
Debentures and the Institutional Trustee Account or as otherwise
provided in this Declaration, legal title to all assets of the
Trust shall be vested in the Trust. The Holders shall not have
legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
SECTION 3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES.
The Regular Trustees shall have the exclusive power,
duty and authority to cause the Trust to engage in the following
activities:
(a) to issue and sell the Preferred Securities and the
Common Securities in accordance with this Declaration; provided,
however, that, the Trust may issue no more than one series of
Preferred Securities and no more than one series of Common
Securities and, provided further, that there shall be no
interests in the Trust other than the Securities, and the
issuance of Securities shall be limited to a simultaneous
issuance of both Preferred Securities and Common Securities on
each Closing Date;
(b) in connection with the issuance and sale of the
Preferred Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the
registration statement on Form S-3 prepared by the Sponsor,
including any amendments thereto, pertaining to the
Preferred Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any state in which the Sponsor has
determined to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application, prepared by
the Sponsor, to The New York Stock Exchange, Inc. or any
other national stock exchange or the Nasdaq Stock Market's
National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor, relating to the
registration of the Preferred Securities under Section 12(b)
of the Exchange Act; and
(v) execute and enter into the Underwriting Agreement
providing for the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the
sale of the Preferred Securities and the Common Securities;
provided, however, that the Regular Trustees shall cause the
Debentures to be registered in the name of the Institutional
Trustee as a Trustee hereunder;
(d) to give the Sponsor and the Institutional Trustee
prompt written notice of the occurrence of a Tax Event; provided,
however, that the Regular Trustees shall consult with the Sponsor
and the Institutional Trustee before taking or refraining from
taking any Ministerial Action in relation to a Tax Event;
(e) to establish a record date with respect to all
actions to be taken hereunder that require a record date be
established, including and with respect to, for the purposes of
316(c) of the Trust Indenture Act, Distributions, voting
rights, redemptions and exchanges, and to issue relevant notices
to the Holders of Preferred Securities and Holders of Common
Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may
be required of the Regular Trustees pursuant to the terms of the
Securities;
(g) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise adjust claims or
demands of or against the Trust ("Legal Action"), unless pursuant
to Section 3.8(e), the Institutional Trustee has the exclusive
power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and managers,
contractors, advisors, and consultants and pay reasonable
compensation for such services;
(i) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(j) to give the certificate required by
314(a)(4) of the Trust Indenture Act to the Institutional
Trustee, which certificate may be executed by any Regular
Trustee;
(k) to incur expenses that are necessary or incidental
to carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as,
Registrar and Transfer Agent for the Securities or to appoint a
Paying Agent for the Securities as provided in Section 7.2;
(m) to give prompt written notice to the Holders of
the Securities of any notice received from the Debenture Issuer
of its election to defer payments of interest on the Debentures
by extending the interest payment period under the Indenture;
(n) to execute all documents or instruments, perform
all duties and powers, and do all things for and on behalf of the
Trust in all matters necessary or incidental to the foregoing;
(o) to take all action that may be necessary or
appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges as a
statutory business trust under the laws of the State of Delaware
and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the
Preferred Securities or to enable the Trust to effect the
purposes for which the Trust was created;
(p) to take any action, not inconsistent with this
Declaration or with applicable law, that the Regular Trustees
determine in their discretion to be necessary or desirable in
carrying out the activities of the Trust as set out in this
Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(ii) causing the Trust not to be treated for United
States federal income tax purposes as an association taxable
as a corporation; and
(iii) cooperating with the Debenture Issuer to
ensure that the Debentures will be treated as indebtedness
of the Debenture Issuer for United States federal income tax
purposes;
provided, however, that such action does not materially and
adversely affect the interests of Holders; and
(q) to take all action necessary to cause all
applicable tax returns and tax information reports that are
required to be filed with respect to the Trust to be duly
prepared and filed by the Regular Trustees, on behalf of the
Trust.
The Regular Trustees must exercise the powers set forth
in this Section 3.6 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3, and
the Regular Trustees shall not take any action that is
inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall
have none of the powers or the authority of the Institutional
Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant
to this Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE
TRUSTEES.
The Trust shall not, and the Trustees (including the
Institutional Trustee) shall not, engage in any activity other
than as required or authorized by this Declaration. In
particular, the Trust shall not and the Trustees (including the
Institutional Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such
proceeds to Holders of Securities pursuant to the terms of
this Declaration and of the Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness other
than loans represented by the Debentures;
(v) possess any power or otherwise act in such a way
as to vary the Trust assets or the terms of the Securities
in any way whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the
Trust other than the Securities; or
(vii) other than as provided in this Declaration or
Annex I, (A) direct the time, method and place of exercising
any trust or power conferred upon the Debenture Trustee with
respect to the Debentures, (B) waive any past default that
is waivable under the Indenture, (C) exercise any right to
rescind or annul any declaration that the principal of all
the Debentures shall be immediately due and payable, or (D)
consent to any amendment, modification or termination of the
Indenture or the Debentures where such consent shall be
required unless the Trust shall have received an opinion of
counsel to the effect that such modification will not cause
more than an insubstantial risk that for United States
federal income tax purposes the Trust will be treated as an
association taxable as a corporation.
SECTION 3.8 POWERS AND DUTIES OF THE INSTITUTIONAL TRUSTEE.
(a) The legal title to the Debentures shall be owned
by and held of record in the name of the Institutional Trustee in
trust for the benefit of the Holders of the Securities. The
right, title and interest of the Institutional Trustee to the
Debentures shall vest automatically in each Person who may
hereafter be appointed as Institutional Trustee in accordance
with Section 5.7. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with regard to
the Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its
right, title and interest in the Debentures to the Regular
Trustees or to the Delaware Trustee (it being understood,
however, that the entity acting as Institutional Trustee may also
act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Institutional Trustee Account")
in the name of and under the exclusive control of the
Institutional Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments of funds made
in respect of the Debentures held by the Institutional
Trustee, deposit such funds into the Institutional Trustee
Account and make payments to the Holders of the Securities
from the Institutional Trustee Account in accordance with
Section 6.1. Funds in the Institutional Trustee Account
shall be held uninvested until disbursed in accordance with
this Declaration. The Institutional Trustee Account shall
be an account that is maintained with a banking institution
the rating on whose long-term unsecured indebtedness is at
least equal to the rating assigned to the Preferred
Securities by a nationally recognized statistical rating
organization, within the meaning of Rule 436(g)(2) under the
Securities Act or any successor rule or regulation;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the
Preferred Securities and the Common Securities to the extent
the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by
the Regular Trustees in accordance with the terms of the
Securities, engage in such ministerial activities as shall
be necessary or appropriate to effect the distribution of
the Debentures to Holders of Securities upon the occurrence
of certain special events (as may be defined in the terms of
the Securities) arising from a change in law or a change in
legal interpretation or other specified circumstances
pursuant to the terms of the Securities.
(d) The Institutional Trustee shall take all actions
and perform all duties that may be specifically required of the
Institutional Trustee pursuant to the terms of the Securities.
(e) The Institutional Trustee shall take any Legal
Action which arises out of or in connection with an Event of
Default of which a Responsible Officer of the Institutional
Trustee has actual knowledge or the Institutional Trustee's
duties and obligations under this Declaration or the Trust
Indenture Act, and if such Institutional Trustee shall have
failed to take such Legal Action, the Holders of the Preferred
Securities may take such Legal Action, to the same extent as if
such Holders of Preferred Securities held a principal amount of
Debentures equal to the liquidation amount of such Preferred
Securities, without first proceeding against the Institutional
Trustee or the Trust; provided, however, that if an Event of
Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay
interest or principal on the Debentures on the date such interest
or principal is otherwise payable (or in the case of redemption,
on the redemption date), then a Holder of Preferred Securities
may directly institute a proceeding for enforcement of payment to
such Holder of the principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such Holder (a "Direct
Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the rights of
the Holders of the Common Securities will be subrogated to the
rights of such Holder of Preferred Securities to the extent of
any payment made by the Issuer to such Holder of Preferred
Securities in such Direct Action. Except as provided in the
preceding sentences, the Holders of Preferred Securities will not
be able to exercise directly any other remedy available to the
holders of the Debentures.
(f) The Institutional Trustee shall not resign as a
Trustee unless either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of
Securities pursuant to the terms of the Securities; or
(ii) a Successor Institutional Trustee has been
appointed and has accepted that appointment in accordance
with Section 5.7.
(g) The Institutional Trustee shall have the legal
power to exercise all of the rights, powers and privileges of a
holder of Debentures under the Indenture and, if an Event of
Default actually known to a Responsible Officer of the
Institutional Trustee occurs and is continuing, the Institutional
Trustee shall, for the benefit of Holders of the Securities,
enforce its rights as holder of the Debentures subject to the
rights of the Holders pursuant to the terms of such Securities.
(h) The Institutional Trustee shall be authorized to
undertake all actions set forth in 317(a) of the Trust
Indenture Act.
(i) The Institutional Trustee may, with the consent of
the Regular Trustees, authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all
securities and any such Paying Agent shall comply with
317(b) of the Trust Indenture Act. Any Paying Agent may be
removed by the Institutional Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any
time by the Institutional Trustee.
(j) Subject to this Section 3.8, the Institutional
Trustee shall have none of the duties, liabilities, powers or the
authority of the Regular Trustees set forth in Section 3.6.
The Institutional Trustee must exercise the powers set
forth in this Section 3.8 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3, and
the Institutional Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust set out
in Section 3.3.
SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Institutional Trustee, before the occurrence
of any Event of Default and after the curing of all Events of
Default that may have occurred, shall undertake to perform only
such duties as are specifically set forth in this Declaration and
in the terms of the Securities and no implied covenants shall be
read into this Declaration against the Institutional Trustee. In
case an Event of Default has occurred (that has not been cured or
waived), the Institutional Trustee shall exercise such of the
rights and powers vesting in it by this Declaration, and use the
same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(b) No provision of this Declaration shall be
construed to relieve the Institutional Trustee from liability for
its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default
that may have occurred:
(A) the duties and obligations of the
Institutional Trustee shall be determined solely by the
express provisions of this Declaration and in the terms
of the Securities, and the Institutional Trustee shall
not be liable except for the performance of such duties
and obligations as are specifically set forth in this
Declaration, and no implied covenants or obligations
shall be read into this Declaration against the
Institutional Trustee; and
(B) in the absence of bad faith on the part of
the Institutional Trustee, the Institutional Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Institutional Trustee and conforming
to the requirements of this Declaration; provided,
however, that in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Institutional Trustee,
the Institutional Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer of the Institutional Trustee, unless it shall be
proved that the Institutional Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Institutional 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 at least a Majority in liquidation amount of the
outstanding Securities relating to the time, method and
place of conducting any proceeding for any remedy available
to the Institutional Trustee or exercising any trust or
power conferred upon the Institutional Trustee under this
Declaration;
(iv) no provision of this Declaration shall require any
of the Trustees 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;
(v) the Institutional Trustee's sole duty with respect
to the custody, safe keeping and physical preservation of
the Trust Property shall be to deal with such property in a
similar manner as the Institutional Trustee deals with
similar property for its own account, subject to the
protections and limitations on liability afforded to the
Institutional Trustee under this Declaration, the Trust
Indenture Act and, to the extent applicable, Rule 3a-7 under
the Investment Company Act;
(vi) the Institutional Trustee shall have no duty or
liability for, or with respect to the value, genuineness,
existence or sufficiency of, the Trust Property or the
payment of any taxes or assessments levied thereon or in
connection therewith;
(vii) the Institutional Trustee shall not be liable
for any interest on any money received by it except as it
may otherwise agree with the Sponsor. Money held by the
Institutional Trustee need not be segregated from other
funds held by it except in relation to the Institutional
Trustee Account established by the Institutional Trustee
pursuant to this Declaration and except to the extent
otherwise required by law; and
(viii) the Institutional Trustee shall not be
responsible for monitoring the compliance by the Regular
Trustees or the Sponsor with their respective duties under
this Declaration, nor shall the Institutional Trustee be
liable for the default or misconduct of the Regular Trustees
or the Sponsor.
(c) All payments made by the Institutional Trustee or
a Paying Agent in respect of the Securities shall be made only
from the income and proceeds from the Trust Property to enable
the Institutional Trustee or Paying Agent to make payments in
accordance with the terms hereof. Each Holder, by its acceptance
of a Security, agrees that it will look solely to the income and
proceeds from the Trust Property to the extent available for
distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in
respect of any Security or for any other liability in respect of
any Security. This Section 3.9(c) does not limit the liability
of the Trustees expressly set forth elsewhere in this Declaration
or, in the case of the Institutional Trustee, in the Trust
Indenture Act.
(d) No Regular Trustee shall be liable for any act or
omission to act hereunder, except for its own gross negligence or
wilful misconduct.
SECTION 3.10 CERTAIN RIGHTS OF INSTITUTIONAL TRUSTEE.
Subject to the provisions of Section 3.9 and to the
applicable provisions of the Trust Indenture Act:
(a) the Institutional Trustee may rely and shall be
protected in acting or refraining from acting in good faith
upon any resolution, opinion of counsel, certificate,
written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) if (A) in performing its duties under this
Declaration the Institutional Trustee is required to decide
between alternative courses of action or (B) in construing
any of the provisions in this Declaration the Institutional
Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (C) the Institutional
Trustee is unsure of the application of any provision of
this Declaration, then, except as to any matter as to which
the Holders of Preferred Securities are entitled to vote
under the terms of this Declaration, the Institutional
Trustee shall deliver a notice to the Sponsor requesting
written instructions of the Sponsor as to the course of
action to be taken. The Institutional Trustee shall take
such action, or refrain from taking such action, as the
Institutional Trustee shall be instructed in writing to
take, or to refrain from taking, by the Sponsor; provided,
however, that if the Institutional Trustee does not receive
such instructions of the Sponsor within 10 Business Days
after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to
the extent practicable shall not be less than 2 Business
Days), it may, but shall be under no duty to, take or
refrain from taking such action not inconsistent with this
Declaration as it shall deem advisable and in the best
interests of the Holders, in which event the Institutional
Trustee shall have no liability except for its own bad
faith, negligence or wilful misconduct;
(c) whenever in the administration of this Declaration
the Institutional Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Institutional Trustee
(unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, request and
rely upon an Officer's Certificate;
(d) the Institutional Trustee may consult with counsel
of its selection, 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 Institutional Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Declaration at the request or direction of any of
the Holders pursuant to this Declaration, unless such
Holders shall have offered to the Institutional Trustee
reasonable security or indemnity against the costs, expenses
(including reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying with
such request or direction;
(f) the Institutional 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,
approval, bond, debenture, note or other evidence of
indebtedness or other paper or document reasonably believed
by it to be genuine, unless requested in writing to do so by
one or more Holders, but the Institutional Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit;
(g) the Institutional Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through its agents or attorneys,
and the Institutional 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; provided,
however, that the Institutional Trustee shall be responsible
for its own negligence or recklessness with respect to
selection of any agent or attorney appointed by it
hereunder;
(h) the Institutional Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in
good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it
by this Declaration;
(i) the Institutional Trustee shall not be charged
with knowledge of any default or Event of Default with
respect to the Securities unless either (A) a Responsible
Officer of the Institutional Trustee shall have actual
knowledge of the default or Event of Default or (B) written
notice of such default or Event of Default shall have been
given to the Institutional Trustee by the Sponsor, the
Regular Trustees or any Holder;
(j) no provision of this Declaration shall be deemed
to impose any duty or obligation on the Institutional
Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the
Institutional Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or
acts or to exercise any such right, power, duty or
obligation; and no permissive or discretionary power or
authority available to the Institutional Trustee shall be
construed to be a duty;
(k) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if the Institutional Trustee shall
have reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it
under the terms of this Declaration or adequate indemnity
against such risk or liability is not reasonably assured to
it;
(l) the Institutional Trustee shall have no duty to
see to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any securities) (or any rerecording, refiling
or reregistration thereof);
(m) the Institutional Trustee shall have the right at
any time to seek instructions concerning the administration
of this Declaration from any court of competent
jurisdiction; and
(n) whenever in the administration of this Declaration
the Institutional Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Institutional
Trustee (A) may request instructions from the Holders, which
instructions may only be given by the Holders of the same
amount of the Securities as would be entitled to direct the
Institutional Trustee under the terms of this Declaration in
respect of such remedies, rights or actions, (B) may refrain
from enforcing such remedy or right or taking such other
action until such instructions are received, and (C) shall
be protected in acting in accordance with such instructions.
SECTION 3.11 DELAWARE TRUSTEE.
Notwithstanding any other provision of this Declaration
other than Section 5.2, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities of the Regular
Trustees or the Institutional Trustee described in this
Declaration. Except as set forth in Section 5.2, the Delaware
Trustee shall be a trustee for the sole and limited purpose of
fulfilling the requirements of 3807 of the Business
Trust Act.
SECTION 3.12 EXECUTION OF DOCUMENTS.
Unless otherwise determined by the Regular Trustees,
and except as otherwise required by the Business Trust Act, a
majority of or, if there are only two, any Regular Trustee or, if
there is only one, such Regular Trustee is authorized to execute
on behalf of the Trust any documents that the Regular Trustees
have the power and authority to execute pursuant to Section 3.6;
PROVIDED THAT, the registration statement referred to in
Section 3.6(b)(i), including any amendments thereto, shall be
signed by all of the Regular Trustees.
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained in this Declaration and the
Securities shall be taken as the statements of the Sponsor, and
the Trustees do not assume any responsibility for their
correctness. The Trustees make no representations as to the
value or condition of the property of the Trust or any part
thereof. The Trustees make no representations as to the validity
or sufficiency of this Declaration or the Securities.
SECTION 3.14 DURATION OF TRUST.
The Trust, unless terminated pursuant to the provisions
of Article VIII hereof, shall have existence for forty-five (45)
years from the Closing Date.
SECTION 3.15 MERGERS.
(a) The Trust may not merge, consolidate or amalgamate
with or into, or enter into any other business combination with,
or be replaced by, or convey, transfer or lease its properties
and assets substantially as an entirety to any corporation or
other body, except as described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular
Trustees or, if there are more than two, a majority of the
Regular Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Institutional Trustee,
merge, consolidate or amalgamate with or into, or enter into any
other business combination with, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an
entirety to, a trust organized as such under the laws of any
state; provided, however, that:
(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Securities other
securities having substantially the same terms as the
Preferred Securities (the "Successor Securities") so
long as the Successor Securities rank the same as the
Preferred Securities rank with respect to Distributions
and payments upon liquidation, redemption and
otherwise;
(ii) the Debenture Issuer expressly appoints a trustee
of the Successor Entity that possesses the same powers and
duties as the Institutional Trustee as the Holder of the
Debentures;
(iii) the Preferred Securities or any Successor
Securities are listed, or any Successor Securities will be
listed upon notification of issuance, on any national
securities exchange or with another organization on which
the Preferred Securities are then listed or quoted, if any;
(iv) such merger, consolidation, amalgamation, other
business combination, replacement, conveyance, transfer or
lease does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally
recognized statistical rating organization within the
meaning of Rule 436(g)(12) under the Securities Act or any
successor rule or regulation;
(v) such merger, consolidation, amalgamation, other
business combination, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and
privileges of the Holders of the Securities (including any
Successor Securities) in any material respect (other than
with respect to any dilution of such Holders' interests in
the Preferred Securities as a result of such merger,
consolidation, amalgamation, replacement, conveyance,
transfer or lease);
(vi) such Successor Entity has a purpose identical to
that of the Trust;
(vii) prior to such merger, consolidation,
amalgamation, other business combination, replacement,
conveyance, transfer or lease, the Sponsor has received an
opinion of counsel to the effect that:
(A) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges
of the Holders of the Securities (including any
Successor Securities) in any material respect (other
than with respect to any dilution of the Holders'
interest in the new entity);
(B) following such merger, consolidation,
amalgamation, other business combination, replacement,
conveyance, transfer or lease, neither the Trust nor
the Successor Entity will be required to register as an
Investment Company; and
(C) following such merger, consolidation,
amalgamation, other business combination, replacement,
conveyance, transfer or lease the Trust (or the
Successor Entity) will continue not to be treated as an
association taxable as a corporation for United States
federal income tax purposes; and
(viii) the Sponsor or any permitted successor
guarantees the obligations of such Successor Entity under
the Successor Securities at least to the extent provided by
the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall
not, except with the consent of Holders of 100% in liquidation
amount of the Securities, merge, consolidate or amalgamate with
or into, enter into any other business combination with or be
replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to, any other entity or
permit any other entity to merge, consolidate or amalgamate,
merge with or into, enter into any other business combination
with or replace it if such merger, consolidation, amalgamation,
other business combination, replacement, conveyance, transfer or
lease would cause the Trust or Successor Entity to be treated as
an association taxable as a corporation for United States federal
income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 SPONSOR'S PURCHASE OF COMMON SECURITIES.
On the Closing Date the Sponsor will purchase all of
the Common Securities issued by the Trust, in an amount at least
equal to 3% of the capital of the Trust, at the same time as the
Preferred Securities are sold.
SECTION 4.2 RESPONSIBILITIES OF THE SPONSOR.
In connection with the issuance and sale of the
Preferred Securities, the Sponsor shall have the exclusive right
and responsibility to engage in the following activities:
(a) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 in relation
to the Preferred Securities, including any amendments
thereto;
(b) to determine the states in which to take
appropriate action to qualify or register for sale all or
part of the Preferred Securities and to do any and all such
acts, other than actions which must be taken by the Trust,
and advise the Trust of actions it must take, and prepare
for execution and filing any documents to be executed and
filed by the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any
such states;
(c) to prepare for filing by the Trust an
application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred Securities;
(d) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A relating to
the registration of the Preferred Securities under Section
12(b) of the Exchange Act, including any amendments thereto;
and
(e) to negotiate the terms of the Underwriting
Agreement providing for the sale of the Preferred
Securities.
ARTICLE V
TRUSTEES
SECTION 5.1 NUMBER OF TRUSTEES.
The number of Trustees initially shall be three (3),
and:
(a) at any time before the issuance of any Securities,
the Sponsor may, by written instrument, increase or decrease
the number of Trustees; and
(b) after the issuance of any Securities, the number
of Trustees may be increased or decreased by vote of the
Holders of a majority in liquidation amount of the Common
Securities voting as a class at a meeting of the Holders of
the Common Securities; provided, however, that the number of
Trustees shall in no event be less than two (2); and
provided, further, that, (1) there shall be at least one
Trustee who is an employee or officer of, or is affiliated
with the Sponsor (a "Regular Trustee"); (2) one Trustee
shall be the Institutional Trustee for so long as this
Declaration is required to qualify as an indenture under the
Trust Indenture Act, and such Trustee may also serve as
Delaware Trustee if it meets the applicable requirements;
and (3) there shall be a Delaware Trustee to the extent
required under Section 5.2.
SECTION 5.2 DELAWARE TRUSTEE.
If required by the Business Trust Act, one Trustee (the
"Delaware Trustee") shall be:
(a) a natural person who is a resident of the state of
Delaware; or
(b) if not a natural person, an entity which has its
principal place of business in the State of Delaware, and
otherwise meets the requirements of applicable law;
provided, however, that if the Institutional Trustee has its
principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law, then the
Institutional Trustee may also be the Delaware Trustee and
Section 3.11 shall have no application.
SECTION 5.3 INSTITUTIONAL TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which
shall act as "Institutional Trustee" which shall be:
(i) not an Affiliate of the Sponsor; and
(ii) 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
(iii)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 United States Dollar equivalent of the applicable
foreign currency and subject to supervision or examination
by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision
or examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Institutional Trustee shall
cease to be eligible to so act under Section 5.3(a), the
Institutional Trustee shall immediately resign in the manner and
with the effect set forth in Section 5.7(c).
(c) If the Institutional Trustee has or shall acquire
any "conflicting interest" within the meaning of 310(b)
of the Trust Indenture Act, the Institutional Trustee and the
Holder of the Common Securities (as if it were the obligor
referred to in 310(b) of the Trust Indenture Act) shall
in all respects comply with the provisions of 310(b) of
the Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed
to be specifically described in this Declaration for purposes of
clause (i) of the first provision contained in Section 310(b) of
the Trust Indenture Act.
(e) The initial Institutional Trustee shall be:
Wilmington Trust Company.
SECTION 5.4 CERTAIN QUALIFICATIONS OF REGULAR TRUSTEES AND
DELAWARE TRUSTEE GENERALLY.
Each Regular Trustee and the Delaware Trustee (unless
the Institutional Trustee also acts as Delaware Trustee) shall be
either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more Authorized
Officers.
SECTION 5.5 REGULAR TRUSTEES.
The initial Regular Trustees shall be:
Lawrence J. Pierce
Dorothy K. Mercer.
(a) Except as expressly set forth in this Declaration
and except if a meeting of the Regular Trustees is called with
respect to any matter over which the Regular Trustees have power
to act, any power of the Regular Trustees may be exercised by, or
with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular
Trustees, and except as otherwise required by the Business Trust
Act or applicable law, any Regular Trustee is authorized to
execute on behalf of the Trust any documents which the Regular
Trustees have the power and authority to cause the Trust to
execute pursuant to Section 3.6, provided, however, that the
registration statement referred to in Section 3.6, including any
amendments thereto, shall be signed by all of the Regular
Trustees.
(c) A Regular Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purposes of
signing any documents which the Regular Trustees have power and
authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 DELAWARE TRUSTEE.
The initial Delaware Trustee shall be:
Wilmington Trust Company.
SECTION 5.7 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 5.7(b), Trustees may be
appointed or removed without cause at any time except during an
Event of Default:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of
the Holders of a Majority in liquidation amount of the
Common Securities voting as a class at a meeting of the
Holders of the Common Securities.
(b) (i) The Institutional Trustee shall not be removed
in accordance with Section 5.7(a) until a Successor Institutional
Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Institutional
Trustee and delivered to the Regular Trustees and the Sponsor;
and
(ii) the Delaware Trustee shall not be removed in
accordance with this Section 5.7(a) until a successor
Trustee possessing the qualifications to act as Delaware
Trustee under Sections 5.2 and 5.4 (a "Successor Delaware
Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular Trustees and
the Sponsor.
(c) A Trustee appointed to office shall hold office
until his successor shall have been appointed or until his death,
removal or resignation. Any Trustee may resign from office
(without need for prior or subsequent accounting) by an
instrument in writing signed by the Trustee and delivered to the
Sponsor and the Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein;
provided, however, that:
(i) no such resignation of the Institutional Trustee
shall be effective:
(A) until a Successor Institutional Trustee has
been appointed and has accepted such appointment by
instrument executed by such Successor Institutional
Trustee and delivered to the Trust, the Sponsor and the
resigning Institutional Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof
distributed to the holders of the Securities; and
(ii) no such resignation of the Delaware Trustee shall
be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to
the Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use all
reasonable efforts to promptly appoint a Successor Delaware
Trustee or Successor Institutional Trustee as the case may be if
the Institutional Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 5.7.
(e) If no Successor Institutional Trustee or Successor
Delaware Trustee shall have been appointed and accepted
appointment as provided in this Section 5.7 within 60 days after
delivery of an instrument of resignation or removal, the
Institutional Trustee or Delaware Trustee resigning or being
removed, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Institutional Trustee
or Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall
be liable for the acts or omissions to act of any Successor
Institutional Trustee or Successor Delaware Trustee, as the case
may be.
SECTION 5.8 VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and
the number of Trustees is not reduced pursuant to Section 5.1, or
if the number of Trustees is increased pursuant to Section 5.1, a
vacancy shall occur. A resolution certifying the existence of
such vacancy by the Regular Trustees or, if there are more than
two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.7.
SECTION 5.9 EFFECT OF VACANCIES.
The death, resignation, retirement, removal,
bankruptcy, dissolution, liquidation, incompetence or incapacity
to perform the duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of Regular Trustees
shall occur, until such vacancy is filled by the appointment of
Regular Trustee in accordance with Section 5.7, the Regular
Trustees in office, regardless of their number, shall have all
the powers granted to the Regular Trustees and shall discharge
all the duties imposed upon the Regular Trustees by this
Declaration.
SECTION 5.10 MEETINGS.
If there is more than one Regular Trustee, meetings of
the Regular Trustees shall be held from time to time upon the
call of any Regular Trustee. Regular meetings of the Regular
Trustees may be held at a time and place fixed by resolution of
the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight
courier) not less than 48 hours before such meeting. Notice of
any telephonic meetings of the Regular Trustees or any committee
thereof shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier)
not less than 24 hours before a meeting. Notices shall contain a
brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of
a Regular Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction
of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Regular Trustees may be taken at a
meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with
respect to such matter, provided that a Quorum is present, or
without a meeting by the unanimous written consent of the Regular
Trustees. In the event there is only one Regular Trustee, any
and all action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
SECTION 5.11 DELEGATION OF POWER.
(a) Any Regular Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 3.6, including
any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) the Regular Trustees shall have power to delegate
from time to time to such of their number or to officers of the
Trust the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the
Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set
forth herein.
Section 5.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Institutional Trustee or
the Delaware Trustee, as the case may be, may be merged or
converted or with which either may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware
Trustee, as the case may be, shall be a party, or any corporation
succeeding to all or substantially all the corporate trust
business of the Institutional Trustee or the Delaware Trustee, as
the case may be, shall be the successor of the Institutional
Trustee or the Delaware Trustee, as the case may be, 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.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS.
Holders shall receive Distributions (as defined herein)
in accordance with the applicable terms of the Securities.
Distributions shall be made on the Preferred Securities and the
Common Securities in accordance with the preferences set forth in
their respective terms. If and to the extent that the Debenture
Issuer makes a payment of interest (including Compounded Interest
(as defined in the Indenture) and Additional Interest (as defined
in the Indenture)), premium and/or principal on the Debentures
held by the Institutional Trustee (the amount of any such payment
being a "Payment Amount"), the Institutional Trustee shall and is
directed, to the extent funds are available for that purpose, to
make a distribution (a "Distribution") of the Payment Amount to
Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 GENERAL PROVISIONS REGARDING SECURITIES.
(a) The Regular Trustees shall on behalf of the Trust
issue one class of preferred securities representing undivided
beneficial interests in the assets of the Trust having such terms
as are set forth in Annex I (the "Preferred Securities") and one
class of common securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set
forth in Annex I (the "Common Securities"). The Trust shall
issue no securities or other interests in the assets of the Trust
other than the Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the
Trust by a Regular Trustee. Such signature shall be the manual
or facsimile signature of any present or any future Regular
Trustee. In case any Regular Trustee of the Trust who shall have
signed any of the Securities shall cease to be such Regular
Trustee before the Certificates so signed shall be delivered by
the Trust, such Certificates nevertheless may be delivered as
though the person who signed such Certificates had not ceased to
be such Regular Trustee; and any Certificate may be signed on
behalf of the Trust by such persons who, at the actual date of
execution of such Security, shall be the Regular Trustees of the
Trust, although at the date of the execution and delivery of the
Declaration any such person was not such a Regular Trustee.
Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the
Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification
or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply
with any law or with any rule or regulation of any stock exchange
on which Securities may be listed, or to conform to usage.
(c) The consideration received by the Trust for the
issuance of the Securities shall constitute a contribution to the
capital of the Trust and shall not constitute a loan to the
Trust.
(d) Upon issuance of the Securities as provided in
this Declaration and the receipt of the consideration to be
received therefor, the Securities so issued shall be deemed to be
validly issued, fully paid and non-assessable.
(e) Every Person, by virtue of having become a Holder
or a Preferred Security Beneficial Owner in accordance with the
terms of this Declaration, shall be deemed to have expressly
assented and agreed to the terms of, and shall be bound by, this
Declaration.
SECTION 7.2 PAYING AGENT.
The Trust shall appoint a paying agent (the "Paying
Agent") and may appoint one or more additional paying agents in
such other locations as it shall determine. The term "Paying
Agent" includes any additional paying agent. The Trust may
change any Paying Agent without prior notice to any Holder. The
Trust shall notify the Institutional Trustee of the name and
address of any Agent not a party to this Declaration. If the
Trust fails to appoint or maintain another entity as Paying
Agent, the Institutional Trustee shall act as such. The Trust or
any of its Affiliates may act as Paying Agent. Wilmington Trust
Company shall initially act as Paying Agent for the Preferred
Securities and the Common Securities.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 TERMINATION OF TRUST.
(a) The Trust shall terminate:
(i) upon the occurrence of an Event of Default
described in clause (d) or (e) of Section 701 of the
Indenture;
(ii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor; the filing of a
certificate of cancellation with respect to the Trust after
having obtained the consent of a majority in liquidation
amount of the Securities voting together as a single class
to file such certificate of cancellation; or the revocation
of the Sponsor's charter and the expiration of 90 days after
the date of revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial
dissolution of the Holder of the Common Securities, the
Sponsor or the Trust;
(iv) when all of the Securities shall have been called
for redemption and the amounts necessary for redemption
thereof shall have been paid to the Holders in accordance
with the terms of the Securities;
(v) upon the occurrence and continuation of a Tax
Event in connection with which the Trust shall have been
dissolved in accordance with the terms of the Securities and
all of the Debentures endorsed thereon shall have been
distributed to the Holders of Securities in exchange for all
of the Securities; or
(vi) before the issuance of any Securities, with the
consent of all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of
an event referred to in Section 8.1(a), the Trustees shall file a
certificate of cancellation with the Secretary of State of the
State of Delaware.
(c) The provisions of Section 3.9 and Article X shall
survive the termination of the Trust except as contemplated in
Section 1005 of the Indenture.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 TRANSFER OF SECURITIES.
(a) Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in
this Declaration and in the terms of the Securities. Any
transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities
shall be freely transferable.
(c) The Preferred Securities are to be initially
registered in the name of Cede & Co., as nominee for The
Depository Trust Company (the "Depositary") and the Preferred
Security Certificates so initially registered shall bear such
legends as required by the Depositary. Such Preferred Securities
shall not be transferable or exchangeable, nor shall any
purported transfer be registered, except as follows:
(i) such Preferred Securities may be transferred in
whole, and appropriate registration of transfer effected, if
such transfer is by such nominee to the Depositary, or by
the Depositary to another nominee thereof, or by any nominee
of the Depositary to any other nominee thereof, or by the
Depositary or any nominee thereof to any successor
securities depositary or any nominee thereof; and
(ii) such Preferred Securities shall be exchanged for
Preferred Securities Certificates registered in the
respective names of the beneficial holders thereof, and
thereafter shall be transferable without restriction, if:
(A) the Depositary, or any successor securities
depositary, shall have notified the Company and the
Institutional Trustee that it is unwilling or unable to
continue to act as securities depositary with respect to
such Preferred Securities and the Institutional Trustee
shall not have been notified by the Company within ninety
(90) days of the identity of a successor securities
depositary with respect to such Preferred Securities;
(B) the Company shall have delivered to the
Institutional Trustee an Officer's Certificate to the effect
that such Preferred Securities shall be so exchangeable on
and after a date specified therein; or
(C) (1) an Event of Default shall have occurred
and be continuing, (2) the Institutional Trustee shall have
given notice of such Event of Default pursuant to Section
2.7 of this Declaration and (3) there shall have been
delivered to the Company and the Institutional Trustee an
opinion of counsel to the effect that the interests of the
beneficial owners of such Preferred Securities in respect
thereof will be materially impaired unless such owners
become Holders of Preferred Securities Certificates.
(d) The Sponsor shall maintain 100% direct ownership
of the Common Securities by the Sponsor or any Affiliate thereof,
except as otherwise provided in Section 1005 of the Indenture.
SECTION 9.2 TRANSFER OF CERTIFICATES.
The Regular Trustees shall provide for the registration
of Certificates and of transfers of Certificates, which will be
effected without charge but only upon payment (with such
indemnity as the Regular Trustees may reasonably require) in
respect of any documentary stamp tax or other similar
governmental charges that may be imposed in relation to it. Upon
surrender for registration of transfer of any Certificate, the
Regular Trustees shall cause one or more new Certificates to be
issued in the name of the designated transferee or transferees.
Every Certificate surrendered for registration of transfer shall
be accompanied by a written instrument of transfer in form
satisfactory to the Regular Trustees duly executed by the Holder
or such Holder's attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer shall be
canceled by the Regular Trustees. A transferee of a Certificate
shall be entitled to the rights and be subject to the obligations
of a Holder hereunder upon the receipt by such transferee of a
Certificate. By acceptance of a Certificate, each transferee
shall be deemed to have agreed to be bound by this Declaration.
SECTION 9.3 DEEMED SECURITY HOLDERS.
The Trustees may treat the Person in whose name any
Certificate shall be registered on the books and records of the
Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of
receiving Distributions and for all other purposes whatsoever
and, accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any
Person, whether or not the Trust shall have actual or other
notice thereof.
SECTION 9.4 PREFERRED SECURITY CERTIFICATES.
(a) Preferred Security Certificates shall be prepared
by the Regular Trustees on behalf of the Trust with respect
to such Preferred Securities; and
(b) Preferred Security Certificates shall be printed,
lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Regular Trustees,
as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to
comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock
exchange on which Preferred Securities may be listed, or to
conform to usage.
SECTION 9.5 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If:
(a) any mutilated Certificates should be surrendered
to the Regular Trustees, or if the Regular Trustees shall receive
evidence to their satisfaction of the destruction, loss or theft
of any Certificate; and
(b) there shall be delivered to the Regular Trustees
such security or indemnity as may be required by them to keep
each of them harmless,
then, in the absence of notice that such Certificate shall have
been acquired by a person purporting to be a bona fide purchaser,
any Regular Trustee on behalf of the Trust shall execute and
deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new
Certificate under this Section 9.5, the Regular Trustees may
require the payment of a sum sufficient to cover any documentary
stamp tax or other similar governmental charge that may be
imposed in connection therewith. Any duplicate Certificate
issued pursuant to this Section shall constitute conclusive
evidence of an ownership interest in the relevant Securities, as
if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 LIABILITY.
(a) Except as expressly set forth in this Declaration,
the Securities Guarantees and the terms of the Securities, the
Sponsor shall not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon) of the
Holders of the Securities which shall be made solely from
assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or
otherwise.
(b) The Sponsor shall be liable for all of the debts
and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's
assets.
(c) Pursuant to 3803(a) of the Business
Trust Act, the Holders of the Preferred Securities shall be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware.
SECTION 10.2 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of
such Indemnified Person's gross negligence or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the
Trust by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional
or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
Distributions to Holders of Securities might properly be paid.
SECTION 10.3 FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Declaration shall
not be liable to the Trust or to any other Covered Person for its
good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict
the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on
the Institutional Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any Holder of
Securities,
the Indemnified Person shall resolve such conflict of interest,
take such action or provide such terms, considering in each case
the relative interest of each party (including its own interest)
to such conflict, agreement, transaction or situation and the
benefits and burdens relating to such interests, any customary or
accepted industry practices, and any applicable generally
accepted accounting practices or principles. In the absence of
bad faith by the Indemnified Person, the resolution, action or
term so made, taken or provided by the Indemnified Person shall
not constitute a breach of this Declaration or any other
agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person
is permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other or
different standard imposed by this Declaration or by
applicable law.
SECTION 10.4 INDEMNIFICATION.
(a) (i) The Sponsor shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Trust) by
reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act
in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or
is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees and
expenses) actually and reasonably incurred by him in
connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of
the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which
such Company Indemnified Person shall have been adjudged to
be liable to the Trust unless and only to the extent that
the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified
Person shall be successful on the merits or otherwise
(including dismissal of an action without prejudice or the
settlement of an action without admission of liability) in
defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in
defense of any claim, issue or matter therein, he shall be
indemnified, to the full extent permitted by law, against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii)
of this Section 10.4(a) (unless ordered by a court) shall be
made by the Sponsor only as authorized in the specific case
upon a determination that indemnification of the Company
Indemnified Person is proper in the circumstances because he
has met the applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination shall be made
(1) by the Regular Trustees by a majority vote of a quorum
consisting of such Regular Trustees who were not parties to
such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion, or (3) by the Holders of
the Common Securities.
(v) Expenses (including attorneys' fees and expenses)
incurred by a Company Indemnified Person in defending civil,
criminal, administrative or investigative action, suit or
proceeding referred to in paragraphs (i) and (ii) of this
Section 10.4(a) shall be paid by the Sponsor in advance of
the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf such Company
Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the Sponsor as authorized in this Section
10.4(a). Notwithstanding the foregoing, no advance shall be
made by the Debenture Issuer if a determination is
reasonably and promptly made (i) by the Regular Trustees by
a majority vote of a quorum of disinterested Regular
Trustees, (ii) if such a quorum is not obtainable, or, even
if obtainable, if a quorum of disinterested Regular Trustees
so directs, by independent legal counsel in a written
opinion or (iii) the Common Security Holder of the Trust,
that, based upon the facts known to the Regular Trustees,
counsel or the Common Security Holder at the time such
determination is made, such Company Indemnified Person acted
in bad faith or in a manner that such person did not believe
to be in or not opposed to the best interests of the Trust,
or, with respect to any criminal proceeding, that such
Company Indemnified Person believed or had reasonable cause
to believe his conduct was unlawful. In no event shall any
advance be made in instances where the Regular Trustees,
independent legal counsel or Holders of the Common
Securities reasonably determine that such person
deliberately breached his duty to the Trust or the Holders
of the Preferred Securities.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 10.4(a) shall not be deemed exclusive of any
other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement,
vote of stockholders or disinterested directors of the
Sponsor or vote of Holders of Preferred Securities or
otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office. All
rights to indemnification under this Section 10.4(a) shall
be deemed to be provided by a contract between the Sponsor
and each Company Indemnified Person who serves in such
capacity at any time while this Section 10.4(a) is in
effect. Any repeal or modification of this Section 10.4(a)
shall not affect any rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and
maintain insurance on behalf of any person who is or was a
Company Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the
Sponsor would have the power to indemnify him against such
liability under the provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references
to "the Trust" shall include, in addition to the resulting
or surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a merger,
consolidation, amalgamation or other business combination so
that any person who is or was a director, trustee, officer
or employee of such constituent entity, or is or was serving
at the request of such constituent entity as a director,
trustee, officer, employee or agent of another entity, shall
stand in the same position under the provisions of this
Section 10.4(a) with respect to the resulting or surviving
entity as he would have with respect to such constituent
entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a)
shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(b) The Sponsor agrees to indemnify the (i)
Institutional Trustee, (ii) the Delaware Trustee, (iii) any
Affiliate of the Institutional Trustee and the Delaware Trustee,
and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or
agents of the Institutional Trustee and the Delaware Trustee
(each of the Persons in (i) through (iv) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary
Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense including taxes (other than taxes based
on the income of such Fiduciary Indemnified Person) incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration or the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against
or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligation to indemnify as set forth in this Section 10.4(b)
shall survive the satisfaction and discharge of this Declaration.
SECTION 10.5 OUTSIDE BUSINESSES.
Any Covered Person, the Sponsor, the Delaware Trustee
and the Institutional Trustee may engage in or possess an
interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in
and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed
wrongful or improper. No Covered Person, the Sponsor, the
Delaware Trustee, or the Institutional Trustee shall be obligated
to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the
Institutional Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate
of the Sponsor, or may act as depositary for, trustee or agent
for, or act on any committee or body of holders of, securities or
other obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 FISCAL YEAR.
The fiscal year ("Fiscal Year") of the Trust shall be
the calendar year, or such other year as is required by the Code.
SECTION 11.2 CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust,
the Regular Trustees shall keep, or cause to be kept, full books
of account, records and supporting documents, which shall reflect
in reasonable detail, each transaction of the Trust. The books
of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the
accrual method of accounting for United States federal income tax
purposes. The books of account and the records of the Trust
shall be examined by and reported upon as of the end of each
Fiscal Year of the Trust by a firm of independent certified
public accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared
and delivered to each of the Holders of Securities, within 90
days after the end of each Fiscal Year of the Trust, annual
financial statements of the Trust, including a balance sheet of
the Trust as of the end of such Fiscal Year, and the related
statements of income or loss;
(c) The Regular Trustees shall cause to be duly
prepared and delivered to each of the Holders of Securities, any
annual United States federal income tax information statement,
required by the Code, containing such information with regard to
the Securities held by each Holder as is required by the Code and
the Treasury Regulations. Notwithstanding any right under the
Code to deliver any such statement at a later date, the Regular
Trustees shall endeavor to deliver all such statements within 30
days after the end of each calendar year.
(d) The Regular Trustees shall cause to be duly
prepared and filed with the appropriate taxing authority, an
annual United States federal income tax return, on a Form 1041 or
such other form required by United States federal income tax law,
and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or
local taxing authority.
SECTION 11.3 BANKING.
The Trust shall maintain one or more bank accounts in
the name and for the sole benefit of the Trust; provided,
however, that all payments of funds in respect of the Debentures
held by the Institutional Trustee shall be made directly to the
Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The
sole signatories for such accounts shall be designated by the
Regular Trustees; provided, however, that the Institutional
Trustee shall designate the signatories for the Institutional
Trustee Account.
SECTION 11.4 WITHHOLDING.
The Trust and the Regular Trustees shall comply with
all withholding requirements under United States federal, state
and local law. The Trust shall request, and the Holders shall
provide to the Trust, such forms or certificates as are necessary
to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of,
and in fulfilling, its withholding obligations. The Regular
Trustees shall file required forms with applicable jurisdictions
and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the
Holder to applicable jurisdictions. To the extent that the Trust
is required to withhold and pay over any amounts to any authority
with respect to distributions or allocations to any Holder, the
amount withheld shall be deemed to be a distribution in the
amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action
against the applicable jurisdiction. If the amount required to
be withheld was not withheld from actual Distributions made, the
Trust may reduce subsequent Distributions by the amount of such
withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 AMENDMENTS.
(a) Except as otherwise provided in this Declaration
or by any applicable terms of the Securities, this Declaration
may only be amended by a written instrument approved and executed
by:
(i) the Regular Trustees (or, if there are more than
two Regular Trustees a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Institutional
Trustee, the Institutional Trustee; and
(iii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee,
the Delaware Trustee;
(b) no amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Institutional Trustee shall have first received an Officer's
Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of
this Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment
which affects the rights, powers, duties, obligations or
immunities of the Institutional Trustee, the Institutional
Trustee shall have first received:
(A) an Officer's Certificate from each of the
Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
and
(iii) to the extent the result of such amendment
would be to:
(A) cause the trust to be classified for purposes
of United States federal income taxation as an
association taxable as a corporation;
(B) reduce or otherwise adversely affect the
powers of the Institutional Trustee in contravention of
the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(c) at such time after the Trust has issued any
Securities that remain outstanding, any amendment that would
adversely affect the rights, privileges or preferences of any
Holder of Securities may be effected only with such additional
requirements as may be set forth in the terms of such Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be
amended without the consent of all of the Holders of the
Securities;
(e) Article IV shall not be amended without the
consent of the Holders of a Majority in liquidation amount of the
Common Securities and;
(f) the rights of the holders of the Common Securities
under Article V to increase or decrease the number of, and
appoint and remove Trustees shall not be amended without the
consent of the Holders of a Majority in liquidation amount of the
Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration
may be amended without the consent of the Holders of the
Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any
other provision of this Declaration;
(iii) add to the covenants, restrictions or obligations
of the Sponsor;
(iv) conform to any change in Rule 3a-5 or written
change in interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory
authority which amendment does not have a material adverse
effect on the right, preferences or privileges of the
Holders; and
(v) modify, eliminate and/or add any provision of,
from or to this Declaration in any other respect so long as
such modification, elimination or addition shall not
adversely affect the interests of the Holders of Preferred
Securities in any material respect.
SECTION 12.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY
WRITTEN CONSENT.
(a) Meetings of the Holders of any class of Securities
may be called at any time by the Regular Trustees (or as provided
in the terms of the Securities) to consider and act on any matter
on which Holders of such class of Securities are entitled to act
under the terms of this Declaration, the terms of the Securities
or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular
Trustees shall call a meeting of the Holders of such class if
directed to do so by the Holders of at least 33% in liquidation
amount of such class of Securities. Such direction shall be
given by delivering to the Regular Trustees one or more calls in
a writing stating that the signing Holders of Securities wish to
call a meeting and indicating the general or specific purpose for
which the meeting is to be called. Any Holders of Securities
calling a meeting shall specify in writing the Security
Certificates held by the Holders of Securities exercising the
right to call a meeting and only those Securities specified shall
be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph has
been met.
(b) Except to the extent otherwise provided in the
terms of the Securities, the following provisions shall apply to
meetings of Holders of Securities:
(i) notice of any such meeting shall be given to all
the Holders of Securities having a right to vote thereat at
least 21 days and not more than 18 days before the date of
such meeting. Whenever a vote, consent or approval of the
Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading,
such vote, consent or approval may be given at a meeting of
the Holders of Securities. Any action that may be taken at
a meeting of the Holders of Securities may be taken without
a meeting if a consent in writing setting forth the action
so taken is signed by the Holders of Securities owning not
less than the minimum amount in liquidation amount that
would be necessary to authorize or take such action at a
meeting at which all Holders of Securities having a right to
vote thereon were present and voting. Prompt notice of the
taking of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not
consented in writing. The Regular Trustees may specify that
any written ballot submitted to the Security Holder for the
purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the
Regular Trustees;
(ii) each Holder of a Security may authorize any Person
to act for it by proxy on all matters in which a Holder of
Securities is entitled to participate, including waiving
notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of 11
months from the date thereof unless otherwise provided in
the proxy. Every proxy shall be revocable at the pleasure
of the Holder of Securities executing it. Except as
otherwise provided herein, all matters relating to the
giving, voting or validity of proxies shall be governed by
the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Securities
shall be conducted by the Regular Trustees or by such other
Person that the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration,
the terms of the Securities, the Trust Indenture Act or the
listing rules of any stock exchange on which the Preferred
Securities are then listed or trading, otherwise provides,
the Regular Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of
Holders of Securities, including notice of the time, place
or purpose of any meeting at which any matter is to be voted
on by any Holders of Securities, waiver of any such notice,
action by consent without a meeting, the establishment of a
record date, quorum requirements, voting in person or by
proxy or any other matter with respect to the exercise of
any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL
TRUSTEE.
The Trustee that acts as initial Institutional Trustee
represents and warrants to the Trust and to the Sponsor at the
date of this Declaration, and each Successor Institutional
Trustee represents and warrants to the Trust and the Sponsor at
the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee, that:
(a) the Institutional Trustee is a Delaware banking
corporation with trust powers and authority to execute and
deliver, and to carry out and perform its obligations under
the terms of, this Declaration;
(b) the execution, delivery and performance by the
Institutional Trustee of the Declaration has been duly
authorized by all necessary corporate action on the part of
the Institutional Trustee. The Declaration has been duly
executed and delivered by the Institutional Trustee, and it
constitutes a legal, valid and binding obligation of the
Institutional Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar
laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this
Declaration by the Institutional Trustee does not conflict
with or constitute a breach of the charter or by-laws of the
Institutional Trustee; and
(d) no consent, approval or authorization of, or
registration with or notice to, any Delaware or other state
or any federal banking authority is required for the
execution, delivery or performance by the Institutional
Trustee of this Declaration.
SECTION 13.2 REPRESENTATIONS AND WARRANTIES OF DELAWARE
TRUSTEE.
The Trustee that acts as initial Delaware Trustee
represents and warrants to the Trust and to the Sponsor at the
date of this Declaration, and each Successor Delaware Trustee
represents and warrants to the Trust and the Sponsor at the time
of the Successor Delaware Trustee's acceptance of its appointment
as Delaware Trustee, that:
(a) The Delaware Trustee is duly organized, validly
existing and in good standing under the laws of the State of
Delaware, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under
the terms of, this Declaration.
(b) The Delaware Trustee has been authorized to
perform its obligations under the Certificate of Trust and
the Declaration. The Declaration under Delaware law
constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) No consent, approval or authorization of, or
registration with or notice to, any Delaware or other state
or any federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee
of this Declaration.
(d) The Delaware Trustee is a natural person who is a
resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business
in the State of Delaware.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 NOTICES.
All notices provided for in this Declaration shall be
in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first class mail, as
follows:
(a) if given to the Trust, in care of the Regular
Trustees at the Trust's mailing address set forth below (or
such other address as the Trust may give notice of to the
Holders of the Securities):
Washington Water Power Capital I
c/o The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Telecopy: (509) 489-4879
(b) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as Delaware
Trustee may give notice of to the Holders of the
Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telecopy: (302) 651-1576
(c) if given to the Institutional Trustee, at the
Institutional Trustee's mailing address set forth below (or
such other address as the Institutional Trustee may give
notice of to the Holders of the Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telecopy: (302) 651-1576
(d) if given to the Holder of the Common Securities,
at the mailing address of the Sponsor set forth below (or
such other address as the Holder of the Common Securities
may give notice to the Trust):
The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Telecopy: (509) 482-4879
(e) if given to any other Holder, at the address set
forth on the books and records of the Trust.
All such notices shall be deemed to have been given
when received in person with receipt confirmed, or mailed by
first class mail, postage prepaid except that if a notice or
other document is refused delivery or cannot be delivered because
of a changed address of which no notice was given, such notice or
other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 GOVERNING LAW.
This Declaration and the rights of the parties
hereunder shall be governed by and interpreted in accordance with
the laws of the State of Delaware, and all rights and remedies
shall be governed by such laws without regard to principles of
conflict of laws.
SECTION 14.3 INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the
Trust be classified for United States federal income tax purposes
as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
SECTION 14.4 HEADINGS.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the
interpretation of this Declaration or any provision hereof.
SECTION 14.5 SUCCESSORS AND ASSIGNS.
Whenever in this Declaration any of the parties hereto
is named or referred to, the successors and assigns of such party
shall be deemed to be included, and all covenants and agreements
in this Declaration by the Sponsor and the Trustees shall bind
and inure to the benefit of their respective successors and
assigns, whether so expressed.
SECTION 14.6 PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the
application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the
application of such provision to persons or circumstances other
than those to which it is held invalid, shall not be affected
thereby.
SECTION 14.7 Counterparts.
This Declaration may contain more than one counterpart
of the signature page and this Declaration may be executed by the
affixing of the signature of each of the Trustees to one of such
counterpart signature pages. All of such counterpart signature
pages shall be read as though one, and they shall have the same
force and effect as though all of the signers had signed a single
signature page.
[PAGE BREAK]
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed as of the day and year first above
written.
______________________
LAWRENCE J. PIERCE,
as Regular Trustee
______________________
DOROTHY K. MERCER,
as Regular Trustee
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Institutional Trustee
By:________________________
Name:
Title:
THE WASHINGTON WATER POWER COMPANY,
as Sponsor
By:________________________
Name:
Title:
[PAGE BREAK]
Annex I
[PAGE BREAK]
ANNEX I
TERMS OF
____% TRUST ORIGINATED PREFERRED SECURITIES, SERIES A
____% TRUST ORIGINATED COMMON SECURITIES, SERIES A
Pursuant to Section 7.1 of the Amended and Restated
Declaration of Trust, dated as of ________, 199_ (as amended from
time to time, the "Declaration"), the designation, rights,
privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities and the Common Securities
are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration or, if not
defined in such Declaration, as defined in the Prospectus
referred to below):
1. DESIGNATION AND NUMBER.
(a) PREFERRED SECURITIES. __________ Preferred
Securities of the Trust with an aggregate liquidation amount with
respect to the assets of the Trust of _____________________
($___________) and a liquidation amount with respect to the
assets of the Trust of $25 per preferred security, are hereby
designated for the purposes of identification only as "____%
Trust Originated Preferred Securities, Series A ('TOPrS' )" (the
"Preferred Securities"). The Preferred Security Certificates
evidencing the Preferred Securities shall be substantially in the
form of Exhibit A-1 to the Declaration, with such changes and
additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice or to conform to the rules of
any stock exchange on which the Preferred Securities are listed.
(b) COMMON SECURITIES. _______ Common Securities of
the Trust with an aggregate liquidation amount with respect to
the assets of the Trust of ______________________ dollars
($_________) and a liquidation amount with respect to the assets
of the Trust of $25 per common security, are hereby designated
for the purposes of identification only as "____% Trust
Originated Common Securities, Series A" (the "Common
Securities"). The Common Security Certificates evidencing the
Common Securities shall be substantially in the form of Exhibit
A-2 to the Declaration, with such changes and additions thereto
or deletions therefrom as may be required by ordinary usage,
custom or practice.
2. DISTRIBUTIONS.
(a) Distributions payable on each Security will be
fixed at a rate of ____% per annum (the "Coupon Rate") of the
stated liquidation amount of $25 per Security, such rate being
the rate of interest payable on the Debentures to be held by the
Institutional Trustee. Distributions in arrears for more than
one quarter will bear interest thereon compounded quarterly at
the Coupon Rate (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such cash
distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. The amount of Distributions
payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number
of days elapsed per 90-day quarter.
(b) Distributions on the Securities will be
cumulative, will accrue from ______, 199_, and will be payable
quarterly in arrears, on March 31, June 30, September 30, and
December 31 of each year, commencing on ________ __, 199_, except
as otherwise described below. The Debenture Issuer has the right
under the Indenture to defer payments of interest by extending
the interest payment period from time to time on the Debentures
for a period not exceeding 20 consecutive quarters (each an
"Extension Period"), during which Extension Period no interest
shall be due and payable on the Debentures, provided, however,
that no Extension Period shall last beyond the date of maturity
of the Debentures. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral,
quarterly Distributions will continue to accrue with interest
thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly during any such Extension Period.
Prior to the termination of any such Extension Period, the
Debenture Issuer may further extend such Extension Period;
provided, however, that such Extension Period, together with all
such previous and further extensions thereof, may not exceed 20
consecutive quarters or extend beyond the maturity of the
Debentures. Payments of accrued Distributions will be payable to
Holders as they appear on the books and records of the Trust on
the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of
all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements.
(c) Distributions on the Securities will be payable to
the Holders thereof as they appear on the books and records of
the Trust on the relevant record dates. The relevant record
dates for the Preferred Securities shall conform to the rules of
any securities exchange on which the securities are listed and,
if none, shall be selected by the Regular Trustees, which dates
shall be at least one Business Day but less than 50 Business Days
before the relevant payment dates, which payment dates correspond
to the interest payment dates on the Debentures. The relevant
record dates for the Common Securities shall be the same record
date as for the Preferred Securities. Distributions payable on
any Securities that are not punctually paid on any Distribution
payment date, as a result of the Debenture Issuer having failed
to make a payment under the Debentures, will cease to be payable
to the Person in whose name such Securities are registered on the
relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Securities
are registered on the special record date or other specified date
determined in accordance with the Indenture. If any date on
which Distributions are payable on the Securities is not a
Business Day, then payment of the Distribution payable on such
date will be made on the next succeeding day that is a Business
Day except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on such date.
(d) In the event that there is any money or other
property held by or for the Trust that is not accounted for
hereunder, such property shall be distributed Pro Rata (as
defined herein) among the Holders of the Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
In the event of any voluntary or involuntary
dissolution, winding-up or termination of the Trust, the Holders
of the Securities on the date of the dissolution, winding-up or
termination, as the case may be, will be entitled to receive out
of the assets of the Trust available for distribution to Holders
of Securities after satisfaction of liabilities of creditors an
amount equal to the aggregate of the stated liquidation amount of
$25 per Security plus accrued and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such dissolution,
winding-up or termination, Debentures in an aggregate stated
principal amount equal to the aggregate stated liquidation amount
of such Securities, with an interest rate equal to the Coupon
Rate of, accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on, such Securities, shall be
distributed on a Pro Rata basis to the Holders of the Securities
in exchange for such Securities.
If, upon any such dissolution, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by
the Trust on the Securities shall be paid on a Pro Rata basis.
4. REDEMPTION AND DISTRIBUTION.
(a) Upon the repayment of the Debentures in whole or
in part, whether at maturity or upon redemption (either at the
option of the Debenture Issuer or pursuant to a Tax Event as
described below), the proceeds from such repayment shall be
simultaneously applied to redeem Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed at a redemption price of $25 per
Security plus an amount equal to accrued and unpaid Distributions
thereon at the date of the redemption, payable in cash (the
"Redemption Price"). Holders will be given not less than 30 nor
more than 60 days' notice of such redemption.
(b) If fewer than all the outstanding Securities are
to be so redeemed, the Common Securities and the Preferred
Securities will be redeemed Pro Rata and the Preferred Securities
to be redeemed will be as described in Section 4(f)(ii) below.
(c) If, at any time, a Tax Event (as defined below)
shall occur and be continuing, at the option of the Sponsor,
within 90 days following the occurrence of such Tax Event, either
(i) the Regular Trustees may dissolve the Trust, and, after
satisfaction of creditors, cause Debentures held by the
Institutional Trustee, having an aggregate principal amount equal
to the aggregate stated liquidation amount of, with an interest
rate identical to the Coupon Rate of, and accrued and unpaid
interest equal to accrued and unpaid Distributions on, and having
the same record date for payment as the Trust Securities, to be
distributed to the Holders of the Securities in liquidation of
such Holders' interests in the Trust on a Pro Rata basis, or (ii)
the Debenture Issuer may, upon not less than 30 nor more than 60
days' notice, redeem the Debentures, in whole but not in part,
for cash, and, following such redemption, Securities with an
aggregate liquidation amount equal to the aggregate principal
amount of the Debentures so redeemed shall be redeemed by the
Trust at the Redemption Price on a Pro Rata basis; and provided,
however, further, that, if at the time there is available to the
Trust the opportunity to eliminate, within the 90 day period, the
Tax Event by taking some ministerial action, such as filing a
form or making an election, or pursuing some other similar
reasonable measure that has no adverse effect on the Trust, the
Debenture Issuer, the Sponsor or the Holders of the Securities
("Ministerial Action"), the Trust or the Debenture Issuer will
pursue such Ministerial Action in lieu of such dissolution and
distribution or redemption.
"Tax Event" means the receipt by the Sponsor of an
opinion of counsel to the effect that, as a result of (a) any
amendment to, clarification of or change (including any announced
prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, (b) any judicial
decision, official administrative pronouncement, ruling,
regulatory procedure, notice or announcement, including any
notice or announcement of intent to adopt such procedures or
regulations (an "Administrative Action") or (c) any amendment to,
clarification of, or change in the official position or the
interpretation of such Administrative Action or judicial decision
that differs from the theretofore generally accepted position, in
each case, by any legislative body, court, governmental authority
or regulatory body, irrespective of the manner in which such
amendment, clarification or change is made known, which
amendment, clarification, or change is effective or such
pronouncement or decision is announced, in each case, on or
after, the date of the original issuance of the Debentures
(including the enactment of any legislation and the publication
of any judicial decision or regulatory determination on or after
such date), there is more than an insubstantial risk that (i) the
Trust is or will be within 90 days of the date of such amendment,
clarification or change, subject to United States federal income
tax with respect to interest accrued or received on the
Debentures, (ii) the Trust is, or will be within 90 days of the
date of such amendment, clarification or change, subject to more
than a de minimis amount of taxes, duties or other governmental
charges, or (iii) interest payable by the Debenture Issuer to the
Trust on the Debentures is not, or within 90 days of the date of
such amendment, clarification or change will not be, deductible,
in whole or in part, by the Debenture Issuer for United States
federal income tax purposes.
On and from the date fixed by the Regular Trustees for
any distribution of Debentures and dissolution of the Trust:
(i) the Securities will be deemed to be no longer outstanding and
(ii) any certificates representing Securities will be deemed to
represent beneficial interests in the Debentures having an
aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to the
Coupon Rate of, and accrued and unpaid interest equal to accrued
and unpaid Distributions on, and having the same record date for
payment as such Securities until such certificates are presented
to the Debenture Issuer or its agent for transfer or reissue.
(d) The Trust may not redeem fewer than all the
outstanding Securities unless all accrued and unpaid
Distributions have been paid on all Securities for all quarterly
Distribution periods terminating on or before the date of
redemption.
(e) If the Debentures are distributed to holders of
the Securities, the Debenture Issuer will use all reasonable
efforts to have the Debentures listed on the New York Stock
Exchange or on such other exchange as the Preferred Securities
were listed immediately prior to the distribution of the
Debentures.
(f) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for the Securities (a
"Redemption/Distribution Notice"), will be given by the
Trust by mail to each Holder of Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption
of the Debentures. For purposes of the calculation of the
date of redemption or exchange and the dates on which
notices are given pursuant to this Section 4(f)(i), a
Redemption/ Distribution Notice shall be deemed to be given
on the day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder
appearing in the books and records of the Trust. No defect
in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with
respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed
shall be redeemed Pro Rata from each Holder of Preferred
Securities. The particular Preferred Securities to be
redeemed shall be selected on a Pro Rata basis not more than
60 days prior to the redemption date by the Institutional
Trustee from the outstanding Preferred Securities not
previously called for redemption, by such method as the
Institutional Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of
portions (equal to $25 or an integral multiple of $25 in
excess thereof) of the liquidation preference amount of
Preferred Securities of a denomination larger than $25. The
Institutional Trustee shall notify the Transfer Agent and
Registrar in writing of the Preferred Securities selected
for redemption, and in the case of any Preferred Securities
selected for partial redemption, the liquidation preference
amount thereof to be redeemed. For all purposes of the
Declaration, unless the context otherwise requires, all
provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, or to
the portion of the aggregate liquidation preference amount
of Preferred Securities which has been or is to be redeemed.
(iii) If Securities are to be redeemed and the
Trust gives a Redemption/Distribution Notice, then provided
that the Debenture Issuer has paid the Institutional Trustee
a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional
Trustee will pay the relevant Redemption Price to the
holders of such Securities by check mailed to the address of
the relevant Holders appearing on the books and records of
the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and
funds deposited as required, if applicable, then immediately
prior to the close of business on the date of such deposit,
or on the redemption date, as applicable, distributions will
cease to accrue on the Securities so called for redemption
and all rights of Holders of such Securities so called for
redemption will cease, except the right of the Holders of
such Securities to receive the Redemption Price, but without
interest on such Redemption Price. Neither the Regular
Trustees nor the Trust shall be required to register or
cause to be registered the transfer of any Securities that
have been so called for redemption. If any date fixed for
redemption of Securities is not a Business Day, then payment
of the Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay)
except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as
if made on such date fixed for redemption. If payment of
the Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the
Institutional Trustee or by the Sponsor as guarantor
pursuant to the relevant Securities Guarantee, Distributions
on such Securities will continue to accrue from the original
redemption date to the actual date of payment, in which case
the actual payment date will be considered the date fixed
for redemption for purposes of calculating the Redemption
Price.
(iv) Redemption/Distribution Notices shall be sent by
the Regular Trustees on behalf of the Trust to (A) in
respect of the Preferred Securities, to the Holder thereof,
and (B) in respect of the Common Securities to the Holder
thereof.
(v) Subject to the foregoing and applicable law
(including, without limitation, United States federal
securities laws), provided the acquiror is not the Holder of
the Common Securities or the obligor under the Indenture,
the Sponsor or any of its subsidiaries may at any time and
from time to time purchase outstanding Preferred Securities
by tender, in the open market or by private agreement.
5. VOTING RIGHTS - PREFERRED SECURITIES.
(a) Except as provided under Sections 5(b) and 7 and
as otherwise required by law and the Declaration, the Holders of
the Preferred Securities will have no voting rights.
(b) Subject to the requirements set forth in this
paragraph, the Holders of a majority in aggregate liquidation
amount of the Preferred Securities, voting separately as a class,
may direct the time, method, and place of conducting any
proceeding for any remedy available to the Institutional Trustee,
or exercising any trust or power conferred upon the Institutional
Trustee under the Declaration, including the right to direct the
Institutional Trustee, as holder of the Debentures, to (i)
exercise the remedies available under the Indenture of conducting
any proceeding for any remedy available to the Debenture Trustee,
or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waive any past
default and its consequences that is waivable under Section 813
of the Indenture, or (iii) exercise any right to rescind or annul
a declaration that the principal of all the Debentures shall be
due and payable. The Institutional Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders
of the Preferred Securities. Other than with respect to
directing the time, method and place of conducting any remedy
available to the Institutional Trustee or the Debenture Trustee
as set forth above, the Institutional Trustee shall not take any
action in accordance with the directions of the Holders of the
Preferred Securities under this paragraph unless the
Institutional Trustee has obtained an opinion of tax counsel to
the effect that for the purposes of United States federal income
tax the Trust will not be treated as an association taxable as a
corporation on account of such action. If an Event of Default
has occurred and is continuing and such event is attributable to
the failure of the Debenture Issuer to pay interest or principal
on the Debentures on the date such interest or principal is
otherwise payable (or in the case of redemption, on the
redemption date), then a holder of Preferred Securities may
directly institute a proceeding for enforcement of payment to
such Holder of the principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such holder (a "Direct
Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the rights of
the holders of the Common Securities Holder will be subrogated to
the rights of such holder of Preferred Securities to the extent
of any payment made by the Issuer to such holder of Preferred
Securities in such Direct Action. Except as provided in the
preceding sentences, the Holders of Preferred Securities will not
be able to exercise directly any other remedy available to the
holders of the Debentures.
Any approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of
Preferred Securities convened for such purpose, at a meeting of
all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to
vote, or of any matter upon which action by written consent of
such Holders is to be taken, to be mailed to each Holder of
record of Preferred Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of
proxies or consents.
No vote or consent of the Holders of the Preferred
Securities will be required for the Trust to redeem and cancel
Preferred Securities or to distribute the Debentures in
accordance with the Declaration and the terms of the Securities.
Notwithstanding that Holders of Preferred Securities
are entitled to vote or consent under any of the circumstances
described above, any of the Preferred Securities that are owned
by the Sponsor or any Affiliate of the Sponsor shall not be
entitled to vote or consent and shall, for purposes of such vote
or consent, be treated as if they were not outstanding.
6. VOTING RIGHTS - COMMON SECURITIES.
(a) Except as provided under Sections 6(b), (c), 7(a)
and 8 as otherwise required by law and the Declaration, the
Holders of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled,
in accordance with Article V of the Declaration, to vote to
appoint, remove or replace any Trustee or to increase or decrease
the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only
after the Event of Default with respect to the Preferred
Securities has been cured, waived, or otherwise eliminated and
subject to the requirements of the second to last sentence of
this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may
direct the time, method, and place of conducting any proceeding
for any remedy available to the Institutional Trustee, or
exercising any trust or power conferred upon the Institutional
Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or
power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that
is waivable under Section 713 of the Indenture, or (iii) exercise
any right to rescind or annul a declaration that the principal of
all the Debentures shall be due and payable. Pursuant to this
Section 6(c), the Institutional Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders
of the Preferred Securities. Other than with respect to
directing the time, method and place of conducting any remedy
available to the Institutional Trustee or the Debenture Trustee
as set forth above, the Institutional Trustee shall not take any
action in accordance with the directions of the Holders of the
Common Securities under this paragraph unless the Institutional
Trustee has obtained an opinion of tax counsel to the effect that
for the purposes of United States federal income tax the Trust
will not be treated as an association taxable as a corporation on
account of such action. If the Institutional Trustee fails to
enforce its rights under the Declaration, any Holder of Common
Securities may institute a legal proceeding directly against any
Person to enforce the Institutional Trustee's rights under the
Declaration, without first instituting a legal proceeding against
the Institutional Trustee or any other Person.
Any approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of
Common Securities convened for such purpose, at a meeting of all
of the Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting
at which Holders of Common Securities are entitled to vote, or of
any matter upon which action by written consent of such Holders
is to be taken, to be mailed to each Holder of record of Common
Securities. Each such notice will include a statement setting
forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is
sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Common
Securities will be required for the Trust to redeem and cancel
Common Securities or to distribute the Debentures in accordance
with the Declaration and the terms of the Securities.
7. AMENDMENTS TO DECLARATION AND INDENTURE.
(a) In addition to any requirements under Section 12.1
of the Declaration, if any proposed amendment to the Declaration
provides for, or the Regular Trustees otherwise propose to
effect, (i) any action that would adversely affect the powers,
preferences or special rights of the Securities in any material
respect, whether by way of amendment to the Declaration or
otherwise, or (ii) the dissolution, winding-up or termination of
the Trust, other than as described in Section 8.1 of the
Declaration, then the Holders of outstanding Securities voting
together as a single class, will be entitled to vote on such
amendment or proposal (but not on any other amendment or
proposal) and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a Majority in
liquidation amount of the Securities, affected thereby, provided,
however, that if any amendment or proposal referred to in clause
(i) above would so adversely affect only the Preferred Securities
or only the Common Securities, then only the affected class will
be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the
approval of a Majority in liquidation amount of such class of
Securities.
(b) In the event the consent of the Institutional
Trustee as the holder of the Debentures is required under the
Indenture with respect to any amendment, modification or
termination on the Indenture or the Debentures, the Institutional
Trustee shall request the written approval of the Holders of the
Securities with respect to such amendment, modification or
termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in
liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the
Indenture would require the consent of each holder of the
Debentures, the Institutional Trustee may only give such consent
with the approval of each Holder of outstanding Securities; and
provided, further, that, the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of
the Securities under this Section 7(b) unless the Institutional
Trustee has obtained an opinion of tax counsel to the effect that
for the purposes of United States federal income tax the Trust
will not be treated as an association taxable as a corporation on
account of such action.
8. PRO RATA.
A reference in these terms of the Securities to any
payment, distribution or treatment as being "Pro Rata" shall mean
pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder
in relation to the aggregate liquidation amount of all Securities
outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which
case any funds available to make such payment shall be paid first
to each Holder of the Preferred Securities pro rata according to
the aggregate liquidation amount of Preferred Securities held by
the relevant Holder relative to the aggregate liquidation amount
of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata
according to the aggregate liquidation amount of Common
Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Common Securities outstanding.
9. RANKING.
The Preferred Securities rank pari passu and payment
thereon shall be made Pro Rata with the Common Securities except
that, where an Event of Default occurs and is continuing, the
rights of Holders of the Common Securities and the rights of the
Sponsor or any Affiliate of the Sponsor, to the extent of their
beneficial ownership of Preferred Securities, to payment in
respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to
payment of other Holders of the Preferred Securities.
10. LISTING.
The Regular Trustees shall use all reasonable efforts
to cause the Preferred Securities to be listed for quotation on
the New York Stock Exchange.
11. ACCEPTANCE OF SECURITIES GUARANTEE AND INDENTURE.
Each Holder of Preferred Securities and Common
Securities, by the acceptance thereof, agrees to the provisions
of the Preferred Securities Guarantee, the Common Securities
Guarantee and the Indenture, respectively, including the
subordination provisions therein.
12. NO PREEMPTIVE RIGHTS.
The Holders of the Securities shall have no preemptive
rights to subscribe for any additional securities.
13. MISCELLANEOUS.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee or the Common Securities Guarantee
(as may be appropriate), and the Indenture to a Holder without
charge on written request to the Sponsor at its principal place
of business.
[PAGE BREAK]
Exhibit A-1
[PAGE BREAK]
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
This Preferred Security is a Global Certificate within
the meaning of the Declaration hereinafter referred to and is
registered in the name of The Depository Trust Company (the
"Depositary") or a nominee of the Depositary. This Preferred
Security is exchangeable for Preferred Securities registered in
the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Declaration
and no transfer of this Preferred Security (other than a transfer
of this Preferred Security as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Preferred Security is presented by an
authorized representative of The Depository Trust Company (55
Water Street, New York, New York) to the Trust or its agent for
registration of transfer, exchange or payment, and any Preferred
Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
CUSIP NO. ___________
Certificate Evidencing Preferred Securities
of
WASHINGTON WATER POWER CAPITAL I
____% Trust Originated Preferred Securities, Series A ("TOPrS ")
(liquidation amount $25 per Preferred Security)
WASHINGTON WATER POWER CAPITAL I, a statutory business
trust formed under the laws of the State of Delaware (the
"Trust"), hereby certifies that (the "Holder") is the
registered owner of preferred securities of the Trust
representing undivided beneficial interests in the assets of the
Trust designated the ____% Trust Originated Preferred
Securities, Series A (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities
are transferable on the books and records of the Trust, in person
or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities
represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration
of Trust of the Trust dated as of ______, 199_, as the same may
be amended from time to time (the "Declaration"), including the
designation of the terms of the Preferred Securities as set forth
in Annex I to the Declaration. Capitalized terms used herein but
not defined shall have the meaning given them in the Declaration.
The Holder is entitled to the benefits of the Preferred
Securities Guarantee to the extent provided therein. The Sponsor
will provide a copy of the Declaration, the Preferred Securities
Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound
by the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as
indebtedness and the Preferred Securities as evidence of indirect
beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this
certificate this ____ day of _______, 199_.
WASHINGTON WATER POWER CAPITAL I
By:___________________________
Name:
Title: Regular Trustee
[PAGE BREAK]
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will
be fixed at a rate per annum of ____% (the "Coupon Rate") of the
stated liquidation amount of $25 per Preferred Security, such
rate being the rate of interest payable on the Debentures to be
held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by
applicable law). The term "Distributions" as used herein
includes such cash distributions and any such interest payable
unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held
by the Institutional Trustee and to the extent the Institutional
Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any
full quarterly Distribution period on the basis of a 360-day year
of twelve 30-day months, and for any period shorter than a full
quarterly Distribution period for which Distributions are
computed, Distributions will be computed on the basis of the
actual number of days elapsed per 90-day quarter.
Except as otherwise described below, distributions on
the Preferred Securities will be cumulative, will accrue from the
date of original issuance and will be payable quarterly in
arrears, on March 31, June 30, September 30 and December 31 of
each year, commencing on ________ __, 199_, to ________ __, 20__,
to holders of record on the relevant record dates (as specified
in the Declaration) next preceding such payment dates, which
payment dates shall correspond to the interest payment dates on
the Debentures. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period
not exceeding 20 consecutive quarters (each an "Extension
Period") and as a consequence of such deferral, Distributions
will also be deferred, provided, however, that no Extension
Period shall last beyond the date of the maturity of the
Debentures. Despite such deferral, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted
by applicable law) at the Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further extend such
Extension Period; provided, however, that such Extension Period
together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the
maturity of the Debentures. Payments of accrued Distributions
will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end of
the Extension Period. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above
requirements.
The Preferred Securities shall be redeemable as
provided in the Declaration.
The Declaration and the Preferred Securities shall be
governed by and construed in accordance with the laws of the
State of Delaware, and all rights and remedies shall be governed
by such laws without regard to principles of conflict of laws.
[PAGE BREAK]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
________________________________________________________________
________________________________________________________________
________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________
________________________________________________________________
___________________________________________________________ agent
to transfer this Preferred Security Certificate on the books of
the Trust. The agent may substitute another to act for him or
her.
Date:___________________
Signature:_____________
(Sign exactly as your name appears on the other side of this Preferred
Security Certificate)
Signature Guarantee:* ___________________________
* Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or partici-
pation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may
be determined by the Registrar in addition to, or in substi-
tution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.:
[PAGE BREAK]
Exhibit A-2
[PAGE BREAK]
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
WASHINGTON WATER POWER CAPITAL I
____% Trust Originated Common Securities, Series A
(liquidation amount $25 per Common Security)
WASHINGTON WATER POWER CAPITAL I, a statutory business
trust formed under the laws of the State of Delaware (the
"Trust"), hereby certifies that The Washington Water Power
Company (the "Holder") is the registered owner of common
securities of the Trust representing undivided beneficial
interests in the assets of the Trust designated the ____% Trust
Originated Common Securities, Series A (liquidation amount $25
per Common Security) (the "Common Securities"). The Common
Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all
respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of ________, 199_, as
the same may be amended from time to time (the "Declaration"),
including the designation of the terms of the Common Securities
as set forth in Annex I to the Declaration. Capitalized terms
used herein but not defined shall have the meaning given them in
the Declaration. The Holder is entitled to the benefits of the
Common Securities Guarantee to the extent provided therein. The
Sponsor will provide a copy of the Declaration, the Common
Securities Guarantee and the Indenture to a Holder without charge
upon written request to the Sponsor at its principal place of
business.
Upon receipt of this certificate, the Sponsor is bound
by the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as
indebtedness and the Common Securities as evidence of indirect
beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this
certificate this ___ day of _____________, 199_.
WASHINGTON WATER POWER CAPITAL I
By:___________________________
Name:
Title: Regular Trustee
[PAGE BREAK]
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be
fixed at a rate per annum of ____% (the "Coupon Rate") of the
stated liquidation amount of $25 per Common Security, such rate
being the rate of interest payable on the Debentures to be held
by the Institutional Trustee. Distributions in arrears for more
than one quarter will bear interest thereon compounded quarterly
at the Coupon Rate (to the extent permitted by applicable law).
The term "Distributions" as used herein includes such cash
distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. The amount of Distributions
payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number
of days elapsed per 90-day quarter.
Except as otherwise described below, distributions on
the Common Securities will be cumulative, will accrue from the
date of original issuance and will be payable quarterly in
arrears, on March 31, June 30, September 30 and December 31 of
each year, commencing on ________ __, 199_, to ________ __, 20__,
to Holders of record on the relevant record dates (as specified
in the Declaration) next preceding such payment dates, which
payment dates shall correspond to the interest payment dates on
the Debentures. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period
not exceeding 20 consecutive quarters (each an "Extension
Period") and as a consequence of such deferral, Distributions
will also be deferred; provided, however, that no Extension
Period shall last beyond the date of the maturity of the
Debentures. Despite such deferral, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted
by applicable law) at the Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further extend such
Extension Period; provided, however, that such Extension Period
together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the
maturity date of the Debentures. Payments of accrued
Distributions will be payable to Holders as they appear on the
books and records of the Trust on the first record date after the
end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to
the above requirements.
The Common Securities shall be redeemable as provided
in the Declaration.
The Declaration and the Common Securities shall be
governed by and construed in accordance with the laws of the
State of Delaware, and all rights and remedies shall be governed
by such laws without regard to principles of conflict of laws.
[PAGE BREAK]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Common Security Certificate to:
______________________________________________________________
______________________________________________________________
______________________________________________________________
(Insert assignee's social security or tax identification number)
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
______________________________________________________________
______________________________________________ agent to transfer
this Common Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:______________________
Signature: _________________
(Sign exactly as your name appears on the other side of this
Common Security Certificate)
Signature Guarantee:*______________________
* Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or partici-
pation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may
be determined by the Registrar in addition to, or in substi-
tution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
EXHIBIT 4(a)-8
=========================================================
AMENDED AND RESTATED DECLARATION
OF TRUST
WASHINGTON WATER POWER CAPITAL II
Dated as of ________, 199_
=========================================================
[PAGE BREAK]
TABLE OF CONTENTS
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . -2-
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . -7-
SECTION 2.2 Lists of Holders of Securities . . . . . -8-
SECTION 2.3 Reports by the Institutional Trustee . . -8-
SECTION 2.4 Periodic Reports to Institutional
Trustee . . . . . . . . . . . . . . . . . -9-
SECTION 2.5 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . -9-
SECTION 2.6 Events of Default; Waiver . . . . . . . . -9-
SECTION 2.7 Notice of Event of Default . . . . . . -10-
ARTICLE III
ORGANIZATION
SECTION 3.1 Name . . . . . . . . . . . . . . . . . -11-
SECTION 3.2 Office . . . . . . . . . . . . . . . . -11-
SECTION 3.3 Purpose . . . . . . . . . . . . . . . . -11-
SECTION 3.4 Authority . . . . . . . . . . . . . . . -11-
SECTION 3.5 Title to Property of the Trust . . . . -12-
SECTION 3.6 Powers and Duties of the Regular
Trustees . . . . . . . . . . . . . . . -12-
SECTION 3.7 Prohibition of Actions by the Trust and
the Trustees . . . . . . . . . . . . . -15-
SECTION 3.8 Powers and Duties of the Institutional
Trustee . . . . . . . . . . . . . . . . -16-
SECTION 3.9 Certain Duties and Responsibilities. . -18-
SECTION 3.10 Certain Rights of Institutional Trustee -21-
SECTION 3.11 Delaware Trustee . . . . . . . . . . . -24-
SECTION 3.12 Execution of Documents . . . . . . . . -24-
SECTION 3.13 Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . -24-
SECTION 3.14 Duration of Trust . . . . . . . . . . . -24-
SECTION 3.15 Mergers . . . . . . . . . . . . . . . . -25-
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities -27-
SECTION 4.2 Responsibilities of the Sponsor . . . . -27-
[PAGE BREAK]
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees . . . . . . . . . . -28-
SECTION 5.2 Delaware Trustee . . . . . . . . . . . -29-
SECTION 5.3 Institutional Trustee; Eligibility . . -29-
SECTION 5.4 Certain Qualifications of Regular
Trustees and Delaware Trustee Generally -30-
SECTION 5.5 Regular Trustees . . . . . . . . . . . -31-
SECTION 5.6 Delaware Trustee. . . . . . . . . . . . -31-
SECTION 5.7 Appointment, Removal and Resignation of
Trustees. . . . . . . . . . . . . . . . -31-
SECTION 5.8 Vacancies among Trustees . . . . . . . -33-
SECTION 5.9 Effect of Vacancies . . . . . . . . . . -33-
SECTION 5.10 Meetings. . . . . . . . . . . . . . . . -33-
SECTION 5.11 Delegation of Power . . . . . . . . . . -34-
Section 5.12 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . -34-
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions . . . . . . . . . . . . . -34-
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities -35-
SECTION 7.2 Paying Agent . . . . . . . . . . . . . -36-
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust . . . . . . . . . -36-
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities . . . . . . . . -37-
SECTION 9.2 Transfer of Certificates . . . . . . . -38-
SECTION 9.3 Deemed Security Holders . . . . . . . . -39-
SECTION 9.4 Preferred Security Certificates . . . . -39-
SECTION 9.5 Mutilated, Destroyed, Lost or Stolen
Certificates . . . . . . . . . . . . . -39-
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability . . . . . . . . . . . . . . . -40-
SECTION 10.2 Exculpation . . . . . . . . . . . . . . -40-
SECTION 10.3 Fiduciary Duty . . . . . . . . . . . . -41-
SECTION 10.4 Indemnification . . . . . . . . . . . . -42-
SECTION 10.5 Outside Businesses . . . . . . . . . . -45-
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year . . . . . . . . . . . . . . -46-
SECTION 11.2 Certain Accounting Matters . . . . . . -46-
SECTION 11.3 Banking . . . . . . . . . . . . . . . . -47-
SECTION 11.4 Withholding . . . . . . . . . . . . . . -47-
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments . . . . . . . . . . . . . . -48-
SECTION 12.2 Meetings of the Holders of Securities;
Action by Written Consent . . . . . . . -50-
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of
Institutional Trustee . . . . . . . . . -52-
SECTION 13.2 Representations and Warranties of
Delaware Trustee . . . . . . . . . . . -52-
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices. . . . . . . . . . . . . . . . -53-
SECTION 14.2 Governing Law . . . . . . . . . . . . . -55-
SECTION 14.3 Intention of the Parties . . . . . . . -55-
SECTION 14.4 Headings . . . . . . . . . . . . . . . -55-
SECTION 14.5 Successors and Assigns . . . . . . . . -55-
SECTION 14.6 Partial Enforceability . . . . . . . . -55-
SECTION 14.7 Counterparts . . . . . . . . . . . . . -55-
ANNEX I TERMS OF SECURITIES . . . . . . . . . . . . . I-1
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE . . . A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE . . . . A2-1
[PAGE BREAK]
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
___________________ __________
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . 5.3(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.3(c)
310(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
314(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
314(d) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . 1.1 (Definition
of Officer's Certificate)
314(f) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 3.9(a)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . 3.9(b)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . 3.9(c)
316(a) . . . . . . . . . . . . . . . . . . . . . . 2.6; Annex I,
Section 5
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . 3.6(e)
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . 3.8(h)
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . 3.8(i)
318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
__________________
* This Cross-Reference Table does not constitute part of the
Declaration and shall not affect the interpretation of any
of its terms or provisions.
[PAGE BREAK]
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
WASHINGTON WATER POWER CAPITAL II
_________, 199_
AMENDED AND RESTATED DECLARATION OF TRUST
("Declaration") dated and effective as of _________, 199_, by the
Trustees (as defined herein), the Sponsor (as defined herein) and
by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established
Washington Water Power Capital II (the "Trust"), a trust under
the Delaware Business Trust Act pursuant to a Declaration of
Trust dated as of November 4, 1996 (the "Original Declaration"),
and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on November 4, 1996, for the sole purpose
of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Debentures of the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the
Trust have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision
of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties
hereto to continue the Trust as a business trust under the
Business Trust Act and that this Declaration constitute the
governing instrument of such business trust, the Trustees declare
that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the
assets of the Trust issued hereunder, subject to the provisions
of this Declaration.
[PAGE BREAK]
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 DEFINITIONS.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has
the same meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Declaration as modified,
supplemented or amended from time to time;
(d) all references in this Declaration to Articles and
Sections and Annexes and Exhibits are to Articles and
Sections of and Annexes and Exhibits to this Declaration
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Declaration unless otherwise
defined in this Declaration or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural
and vice versa.
"Affiliate" has the same meaning as given to that term
in Rule 405 of the Securities Act or any successor rule
thereunder.
"Agent" means any Paying Agent.
"AUTHORIZED OFFICER" of a Person means any Person that
is authorized to legally bind such Person.
"BUSINESS DAY" means any day other than Saturday,
Sunday or any other day on which banking institutions in the City
of Wilmington, Delaware and The City of New York are authorized
or required by any applicable law to close.
"BUSINESS TRUST ACT" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code 3801 et seq., as it may
be amended from time to time, or any successor legislation.
"CERTIFICATE" means a Common Security Certificate or a
Preferred Security Certificate.
"CLOSING DATE" means the "Closing Time" and each "Date
of Delivery" under the Underwriting Agreement.
"CODE" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor legislation.
"COMMISSION" means the Securities and Exchange
Commission.
"COMMON SECURITIES" has the meaning specified in
Section 7.1.(a).
"COMMON SECURITIES GUARANTEE" means the guarantee
agreement to be dated as of ________, 199_ of the Sponsor in
respect of the Common Securities.
"COMMON SECURITY CERTIFICATE" means a certificate in
fully registered form representing a Common Security
substantially in the form of Exhibit A-2.
"COMPANY INDEMNIFIED PERSON" means (a) any Regular
Trustee; (b) any Affiliate of any Regular Trustee; (c) any
officers, directors, shareholders, members, partners, employees,
representatives or agents of any Regular Trustee; or (d) any
officer, employee or agent of the Trust or its Affiliates.
"CORPORATE TRUST OFFICE" means the office of the
Institutional Trustee at which the corporate trust business of
the Institutional Trustee shall, at any particular time, be
principally administered, which office at the date of execution
of this Agreement is located at Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890.
"COVERED PERSON" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent
of (i) the Trust or (ii) the Trust's Affiliates; and (b) any
Holder of Securities.
"DEBENTURE ISSUER" means The Washington Water Power
Company, a Washington corporation, or any successor entity
resulting from any consolidation, amalgamation, merger or other
business combination, in its capacity as issuer of the Debentures
under the Indenture.
"DEBENTURE TRUSTEE" means Wilmington Trust Company, a
Delaware banking corporation, as trustee under the Indenture
until a successor is appointed thereunder, and thereafter means
such successor trustee.
"DEBENTURES" means the series of Debentures to be
issued by the Debenture Issuer under the Indenture to be held by
the Institutional Trustee.
"DELAWARE TRUSTEE" has the meaning set forth in Section
5.2.
"DEPOSITARY" has the meaning set forth in Section 9.1.
"DISTRIBUTION" means a distribution payable to Holders
of Securities in accordance with Section 6.1.
"EVENT OF DEFAULT", in respect of the Securities, means
an Event of Default as defined in the Indenture, so long as the
same shall be continuing under the Indenture.
"EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended from time to time, or any successor legislation.
"FIDUCIARY INDEMNIFIED PERSON" has the meaning set
forth in Section 10.4(b).
"HOLDER" means a Person in whose name a Certificate
representing a Security is registered, such Person being a
beneficial owner within the meaning of the Business Trust Act.
"INDEMNIFIED PERSON" means a Company Indemnified Person
or a Fiduciary Indemnified Person.
"INDENTURE" means the Indenture dated as of _______ 1,
199_, between the Debenture Issuer and the Debenture Trustee, as
supplemented.
"INSTITUTIONAL TRUSTEE" has the meaning set forth in
Section 5.3.
"INSTITUTIONAL TRUSTEE ACCOUNT" has the meaning set
forth in Section 3.8(c)(i).
"INVESTMENT COMPANY" means an investment company as
defined in the Investment Company Act.
"INVESTMENT COMPANY ACT" means the Investment Company
Act of 1940, as amended from time to time, or any successor
legislation.
"LEGAL ACTION" has the meaning set forth in Section
3.6(g).
"MAJORITY IN LIQUIDATION AMOUNT OF THE SECURITIES"
means, except as provided in the terms of the Preferred
Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities voting together as a single class or, as
the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting
separately as a class, who are the record owners of more than 50%
of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities
of the relevant class.
"MINISTERIAL ACTION" has the meaning set forth in the
terms of the Securities as set forth in Annex I.
"OFFICER'S CERTIFICATE" means, with respect to any
Person, a certificate signed by an Authorized Officer of such
Person. Any Officer's Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Declaration shall include:
(a) a statement that each officer signing the Officers'
Certificate has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation upon which the statements contained
in such Officer's Certificate are based;
(c) a statement that, in the opinion of such officer, such
officer has made such examination or investigation as is
necessary to enable such officer 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 such
officer, such condition or covenant has been complied with.
"PAYING AGENT" has the meaning specified in Section
7.2.
"PERSON" means a legal person, including any
individual, corporation, estate, partnership, joint venture,
association, joint stock company, limited liability company,
trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"PREFERRED SECURITIES" has the meaning specified in
Section 7.1(a).
"PREFERRED SECURITIES GUARANTEE" means the guarantee
agreement to be dated as of ________, 199_, of the Sponsor in
respect of the Preferred Securities.
"PREFERRED SECURITY CERTIFICATE" means a certificate
representing a Preferred Security substantially in the form of
Exhibit A-1.
"QUORUM" means a majority of the Regular Trustees or,
if there are only two Regular Trustees, both of them.
"REGISTRAR" means the registrar for the Preferred
Securities appointed by the Trust and shall initially be
Wilmington Trust Company.
"REGULAR TRUSTEE" has the meaning set forth in Section
5.1.
"RELATED PARTY" means, with respect to the Sponsor, any
direct or indirect wholly owned subsidiary of the Sponsor or any
other Person that owns, directly or indirectly, 100% of the
outstanding voting securities of the Sponsor.
"RESPONSIBLE OFFICER" means, with respect to the
Institutional Trustee, any officer of the Institutional Trustee
assigned by the Institutional Trustee to administer its corporate
trust matters.
"RULE 3A-5" means Rule 3a-5 under the Investment
Company Act, or any successor rule or regulation.
"SECURITIES" means the Common Securities and the
Preferred Securities.
"SECURITIES ACT" means the Securities Act of 1933, as
amended from time to time, or any successor legislation.
"SECURITIES GUARANTEES" means the Common Securities
Guarantee and the Preferred Securities Guarantee.
"SPONSOR" means The Washington Water Power Company, a
Washington corporation, or any successor entity resulting from
any consolidation, amalgamation, merger or other business
combination, in its capacity as sponsor of the Trust.
"TAX EVENT" has the meaning set forth in Annex I
hereto.
"10% IN LIQUIDATION AMOUNT OF THE SECURITIES" means,
except as provided in the terms of the Preferred Securities or by
the Trust Indenture Act, Holder(s) of outstanding Securities
voting together as a single class or, as the context may require,
Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who
are the record owners of 10% or more of the aggregate liquidation
amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"TRANSFER AGENT" means the transfer agent for the
Preferred Securities appointed by the Trust and shall initially
be Wilmington Trust Company.
"TREASURY REGULATIONS" means the income tax
regulations, including temporary and proposed regulations,
promulgated under the Code by the United States Treasury, as such
regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"TRUSTEE" or "Trustees" means each Person who has
signed this Declaration as a trustee, so long as such Person
shall continue in office in accordance with the terms hereof, and
all other Persons who may from time to time be duly appointed,
qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the
Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
"TRUST INDENTURE ACT" means the Trust Indenture Act of
1939, as amended from time to time, or any successor legislation.
"TRUST PROPERTY" means (i) the Debentures, (ii) any
cash or deposit in, or owing to, the Institutional Trustee
Account and (iii) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being
held by the Institutional Trustee pursuant to the trusts of this
Declaration.
"UNDERWRITING AGREEMENT" means the Underwriting
Agreement for the offering and sale of Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Declaration is subject to the provisions of
the Trust Indenture Act that are required to be part of this
Declaration and shall, to the extent applicable, be governed by
such provisions.
(b) The Institutional Trustee shall be the only
Trustee which is a Trustee for the purposes of the Trust
Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties
imposed by 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as
equity securities representing undivided beneficial interests in
the assets of the Trust.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES.
(a) Each of the Sponsor and the Regular Trustees on
behalf of the Trust shall provide the Institutional Trustee (i)
within 14 days after each record date for payment of
Distributions, a list, in such form as the Institutional Trustee
may reasonably require, of the names and addresses of the Holders
of the Securities ("List of Holders") as of such record date;
provided, however, that neither the Sponsor nor the Regular
Trustees on behalf of the Trust shall be obligated to provide
such List of Holders at any time the List of Holders does not
differ from the most recent List of Holders given to the
Institutional Trustee by the Sponsor and the Regular Trustees on
behalf of the Trust; and provided, further, that in any event
such List of Holders will be provided to the Institutional
Trustee not less than once every 6 months pursuant to this
Section 2.2(a)(i), and (ii) at any other time, within 30 days of
receipt by the Trust of a written request for a List of Holders
as of a date no more than 14 days before such List of Holders is
given to the Institutional Trustee. The Institutional Trustee
shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given
to it or which it receives in the capacity as Paying Agent (if
acting in such capacity) provided, however, that the
Institutional Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its
obligations under 311(a), 311(b) and 312(b) of
the Trust Indenture Act.
SECTION 2.3 REPORTS BY THE INSTITUTIONAL TRUSTEE.
Within 60 days after May 15 of each year, the
Institutional Trustee shall provide to the Holders of the
Preferred Securities such reports as are required by
313 of the Trust Indenture Act, if any, in the form and in the
manner provided by 313 of the Trust Indenture Act. The
Institutional Trustee shall also comply with the requirements of
313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS TO INSTITUTIONAL TRUSTEE.
Each of the Sponsor and the Regular Trustees on behalf
of the Trust shall provide to the Institutional Trustee such
documents, reports and information as required by 314
(if any) and the compliance certificate required by 314
of the Trust Indenture Act in the form, in the manner and at the
times required by 314 of the Trust Indenture Act.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Regular Trustees on behalf
of the Trust shall provide to the Institutional Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Declaration that relate to any of the
matters set forth in 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer
pursuant to 314(c)(1) may be given in the form of an
Officer's Certificate.
SECTION 2.6 EVENTS OF DEFAULT; WAIVER.
(a) The Holders of a Majority in liquidation amount of
Preferred Securities may, by vote, on behalf of the Holders of
all of the Preferred Securities, waive any past Event of Default
in respect of the Preferred Securities and its consequences;
provided, however, that if the underlying Event of Default under
the Indenture is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be waivable.
Upon such waiver, any such default shall cease to
exist, and any Event of Default with respect to the Preferred
Securities arising therefrom shall be deemed to have been cured,
for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or an Event of Default
with respect to the Preferred Securities or impair any right
consequent thereon. Any waiver by the Holders of the Preferred
Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the
Holders of the Common Securities of any such Event of Default
with respect to the Common Securities for all purposes of this
Declaration without any further act, vote, or consent of the
Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of
the Common Securities may, by vote, on behalf of the Holders of
all of the Common Securities, waive any past Event of Default
with respect to the Common Securities and its consequences;
provided, however, that if the underlying Event of Default under
the Indenture is not waivable under the Indenture, except where
the Holders of the Common Securities are deemed to have waived
such Event of Default under the Declaration as provided below in
this Section 2.6(b), the Event of Default under the Declaration
shall also not be waivable; and
provided, further, that, each Holder of Common Securities will be
deemed to have waived any such Event of Default and all Events of
Default with respect to the Common Securities and its
consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so cured,
waived or otherwise eliminated, the Institutional Trustee will be
deemed to be acting solely on behalf of the Holders of the
Preferred Securities and only the Holders of the Preferred
Securities will have the right to direct the Institutional
Trustee in accordance with the terms of the Securities. Subject
to the foregoing provisions of this Section 2.6(b), upon such
waiver, any such default shall cease to exist and any Event of
Default with respect to the Common Securities arising therefrom
shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the
Indenture by the Institutional Trustee at the direction of the
Holders of the Preferred Securities shall constitute a waiver of
the corresponding Event of Default under this Declaration.
SECTION 2.7 NOTICE OF EVENT OF DEFAULT.
The Institutional Trustee shall give notice of any
default hereunder to the Holders of Securities 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 hereunder arising out of
a default of the character specified in Section 701(c) of the
Indenture, 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
3.9, the Institutional Trustee shall not be deemed to have
knowledge of such default unless either (i) a Responsible Officer
of the Institutional Trustee shall have actual knowledge of such
default or (ii) the Institutional Trustee shall have received
written notice thereof from the Debenture Issuer, the Sponsor,
any Regular Trustee 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.
ARTICLE III
ORGANIZATION
SECTION 3.1 NAME.
The Trust is named "Washington Water Power Capital II,"
as such name may be modified from time to time by the Regular
Trustees following written notice to the Holders of Securities.
The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Regular Trustees.
SECTION 3.2 OFFICE.
The address of the principal office of the Trust is c/o
The Washington Water Power Company, 1411 East Mission Avenue,
Spokane, Washington 99202. On ten Business Days' written notice
to the Holders of Securities, the Regular Trustees may designate
another principal office.
SECTION 3.3 PURPOSE.
The exclusive purposes and functions of the Trust are
(a) to issue and sell Securities and use the proceeds from such
sale to acquire the Debentures, and (b) except as otherwise
limited herein, to engage in only those other activities
necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments,
pledge any of its assets, or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust to be treated
for United States federal income tax purposes as an association
taxable as a corporation.
SECTION 3.4 AUTHORITY.
Subject to the limitations provided in this Declaration
and to the specific duties of the Institutional Trustee, the
Regular Trustees shall have exclusive and complete authority to
carry out the purposes of the Trust. An action taken by the
Regular Trustees in accordance with their powers shall constitute
the act of and serve to bind the Trust and an action taken by the
Institutional Trustee on behalf of the Trust in accordance with
its powers shall constitute the act of and serve to bind the
Trust. In dealing with the Trustees acting on behalf of the
Trust, no person shall be required to inquire into the authority
of the Trustees to bind the Trust. Persons dealing with the
Trust are entitled to rely conclusively on the power and
authority of the Trustees as set forth in this Declaration.
SECTION 3.5 TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the
Debentures and the Institutional Trustee Account or as otherwise
provided in this Declaration, legal title to all assets of the
Trust shall be vested in the Trust. The Holders shall not have
legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
SECTION 3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES.
The Regular Trustees shall have the exclusive power,
duty and authority to cause the Trust to engage in the following
activities:
(a) to issue and sell the Preferred Securities and the
Common Securities in accordance with this Declaration; provided,
however, that, the Trust may issue no more than one series of
Preferred Securities and no more than one series of Common
Securities and, provided further, that there shall be no
interests in the Trust other than the Securities, and the
issuance of Securities shall be limited to a simultaneous
issuance of both Preferred Securities and Common Securities on
each Closing Date;
(b) in connection with the issuance and sale of the
Preferred Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the
registration statement on Form S-3 prepared by the Sponsor,
including any amendments thereto, pertaining to the
Preferred Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any state in which the Sponsor has
determined to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application, prepared by
the Sponsor, to The New York Stock Exchange, Inc. or any
other national stock exchange or the Nasdaq Stock Market's
National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor, relating to the
registration of the Preferred Securities under Section 12(b)
of the Exchange Act; and
(v) execute and enter into the Underwriting Agreement
providing for the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the
sale of the Preferred Securities and the Common Securities;
provided, however, that the Regular Trustees shall cause the
Debentures to be registered in the name of the Institutional
Trustee as a Trustee hereunder;
(d) to give the Sponsor and the Institutional Trustee
prompt written notice of the occurrence of a Tax Event; provided,
however, that the Regular Trustees shall consult with the Sponsor
and the Institutional Trustee before taking or refraining from
taking any Ministerial Action in relation to a Tax Event;
(e) to establish a record date with respect to all
actions to be taken hereunder that require a record date be
established, including and with respect to, for the purposes of
316(c) of the Trust Indenture Act, Distributions, voting
rights, redemptions and exchanges, and to issue relevant notices
to the Holders of Preferred Securities and Holders of Common
Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may
be required of the Regular Trustees pursuant to the terms of the
Securities;
(g) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise adjust claims or
demands of or against the Trust ("Legal Action"), unless pursuant
to Section 3.8(e), the Institutional Trustee has the exclusive
power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and managers,
contractors, advisors, and consultants and pay reasonable
compensation for such services;
(i) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(j) to give the certificate required by
314(a)(4) of the Trust Indenture Act to the Institutional
Trustee, which certificate may be executed by any Regular
Trustee;
(k) to incur expenses that are necessary or incidental
to carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as,
Registrar and Transfer Agent for the Securities or to appoint a
Paying Agent for the Securities as provided in Section 7.2;
(m) to give prompt written notice to the Holders of
the Securities of any notice received from the Debenture Issuer
of its election to defer payments of interest on the Debentures
by extending the interest payment period under the Indenture;
(n) to execute all documents or instruments, perform
all duties and powers, and do all things for and on behalf of the
Trust in all matters necessary or incidental to the foregoing;
(o) to take all action that may be necessary or
appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges as a
statutory business trust under the laws of the State of Delaware
and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the
Preferred Securities or to enable the Trust to effect the
purposes for which the Trust was created;
(p) to take any action, not inconsistent with this
Declaration or with applicable law, that the Regular Trustees
determine in their discretion to be necessary or desirable in
carrying out the activities of the Trust as set out in this
Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(ii) causing the Trust not to be treated for United
States federal income tax purposes as an association taxable
as a corporation; and
(iii) cooperating with the Debenture Issuer to
ensure that the Debentures will be treated as indebtedness
of the Debenture Issuer for United States federal income tax
purposes;
provided, however, that such action does not materially and
adversely affect the interests of Holders; and
(q) to take all action necessary to cause all
applicable tax returns and tax information reports that are
required to be filed with respect to the Trust to be duly
prepared and filed by the Regular Trustees, on behalf of the
Trust.
The Regular Trustees must exercise the powers set forth
in this Section 3.6 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3, and
the Regular Trustees shall not take any action that is
inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall
have none of the powers or the authority of the Institutional
Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant
to this Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE
TRUSTEES.
The Trust shall not, and the Trustees (including the
Institutional Trustee) shall not, engage in any activity other
than as required or authorized by this Declaration. In
particular, the Trust shall not and the Trustees (including the
Institutional Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such
proceeds to Holders of Securities pursuant to the terms of
this Declaration and of the Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness other
than loans represented by the Debentures;
(v) possess any power or otherwise act in such a way
as to vary the Trust assets or the terms of the Securities
in any way whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the
Trust other than the Securities; or
(vii) other than as provided in this Declaration or
Annex I, (A) direct the time, method and place of exercising
any trust or power conferred upon the Debenture Trustee with
respect to the Debentures, (B) waive any past default that
is waivable under the Indenture, (C) exercise any right to
rescind or annul any declaration that the principal of all
the Debentures shall be immediately due and payable, or (D)
consent to any amendment, modification or termination of the
Indenture or the Debentures where such consent shall be
required unless the Trust shall have received an opinion of
counsel to the effect that such modification will not cause
more than an insubstantial risk that for United States
federal income tax purposes the Trust will be treated as an
association taxable as a corporation.
SECTION 3.8 POWERS AND DUTIES OF THE INSTITUTIONAL TRUSTEE.
(a) The legal title to the Debentures shall be owned
by and held of record in the name of the Institutional Trustee in
trust for the benefit of the Holders of the Securities. The
right, title and interest of the Institutional Trustee to the
Debentures shall vest automatically in each Person who may
hereafter be appointed as Institutional Trustee in accordance
with Section 5.7. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with regard to
the Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its
right, title and interest in the Debentures to the Regular
Trustees or to the Delaware Trustee (it being understood,
however, that the entity acting as Institutional Trustee may also
act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Institutional Trustee Account")
in the name of and under the exclusive control of the
Institutional Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments of funds made
in respect of the Debentures held by the Institutional
Trustee, deposit such funds into the Institutional Trustee
Account and make payments to the Holders of the Securities
from the Institutional Trustee Account in accordance with
Section 6.1. Funds in the Institutional Trustee Account
shall be held uninvested until disbursed in accordance with
this Declaration. The Institutional Trustee Account shall
be an account that is maintained with a banking institution
the rating on whose long-term unsecured indebtedness is at
least equal to the rating assigned to the Preferred
Securities by a nationally recognized statistical rating
organization, within the meaning of Rule 436(g)(2) under the
Securities Act or any successor rule or regulation;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the
Preferred Securities and the Common Securities to the extent
the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by
the Regular Trustees in accordance with the terms of the
Securities, engage in such ministerial activities as shall
be necessary or appropriate to effect the distribution of
the Debentures to Holders of Securities upon the occurrence
of certain special events (as may be defined in the terms of
the Securities) arising from a change in law or a change in
legal interpretation or other specified circumstances
pursuant to the terms of the Securities.
(d) The Institutional Trustee shall take all actions
and perform all duties that may be specifically required of the
Institutional Trustee pursuant to the terms of the Securities.
(e) The Institutional Trustee shall take any Legal
Action which arises out of or in connection with an Event of
Default of which a Responsible Officer of the Institutional
Trustee has actual knowledge or the Institutional Trustee's
duties and obligations under this Declaration or the Trust
Indenture Act, and if such Institutional Trustee shall have
failed to take such Legal Action, the Holders of the Preferred
Securities may take such Legal Action, to the same extent as if
such Holders of Preferred Securities held a principal amount of
Debentures equal to the liquidation amount of such Preferred
Securities, without first proceeding against the Institutional
Trustee or the Trust; provided, however, that if an Event of
Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay
interest or principal on the Debentures on the date such interest
or principal is otherwise payable (or in the case of redemption,
on the redemption date), then a Holder of Preferred Securities
may directly institute a proceeding for enforcement of payment to
such Holder of the principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such Holder (a "Direct
Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the rights of
the Holders of the Common Securities will be subrogated to the
rights of such Holder of Preferred Securities to the extent of
any payment made by the Issuer to such Holder of Preferred
Securities in such Direct Action. Except as provided in the
preceding sentences, the Holders of Preferred Securities will not
be able to exercise directly any other remedy available to the
holders of the Debentures.
(f) The Institutional Trustee shall not resign as a
Trustee unless either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of
Securities pursuant to the terms of the Securities; or
(ii) a Successor Institutional Trustee has been
appointed and has accepted that appointment in accordance
with Section 5.7.
(g) The Institutional Trustee shall have the legal
power to exercise all of the rights, powers and privileges of a
holder of Debentures under the Indenture and, if an Event of
Default actually known to a Responsible Officer of the
Institutional Trustee occurs and is continuing, the Institutional
Trustee shall, for the benefit of Holders of the Securities,
enforce its rights as holder of the Debentures subject to the
rights of the Holders pursuant to the terms of such Securities.
(h) The Institutional Trustee shall be authorized to
undertake all actions set forth in 317(a) of the Trust
Indenture Act.
(i) The Institutional Trustee may, with the consent of
the Regular Trustees, authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all
securities and any such Paying Agent shall comply with
317(b) of the Trust Indenture Act. Any Paying Agent may be
removed by the Institutional Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any
time by the Institutional Trustee.
(j) Subject to this Section 3.8, the Institutional
Trustee shall have none of the duties, liabilities, powers or the
authority of the Regular Trustees set forth in Section 3.6.
The Institutional Trustee must exercise the powers set
forth in this Section 3.8 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3, and
the Institutional Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust set out
in Section 3.3.
SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Institutional Trustee, before the occurrence
of any Event of Default and after the curing of all Events of
Default that may have occurred, shall undertake to perform only
such duties as are specifically set forth in this Declaration and
in the terms of the Securities and no implied covenants shall be
read into this Declaration against the Institutional Trustee. In
case an Event of Default has occurred (that has not been cured or
waived), the Institutional Trustee shall exercise such of the
rights and powers vesting in it by this Declaration, and use the
same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(b) No provision of this Declaration shall be
construed to relieve the Institutional Trustee from liability for
its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default
that may have occurred:
(A) the duties and obligations of the
Institutional Trustee shall be determined solely by the
express provisions of this Declaration and in the terms
of the Securities, and the Institutional Trustee shall
not be liable except for the performance of such duties
and obligations as are specifically set forth in this
Declaration, and no implied covenants or obligations
shall be read into this Declaration against the
Institutional Trustee; and
(B) in the absence of bad faith on the part of
the Institutional Trustee, the Institutional Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Institutional Trustee and conforming
to the requirements of this Declaration; provided,
however, that in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Institutional Trustee,
the Institutional Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer of the Institutional Trustee, unless it shall be
proved that the Institutional Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Institutional 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 at least a Majority in liquidation amount of the
outstanding Securities relating to the time, method and
place of conducting any proceeding for any remedy available
to the Institutional Trustee or exercising any trust or
power conferred upon the Institutional Trustee under this
Declaration;
(iv) no provision of this Declaration shall require any
of the Trustees 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;
(v) the Institutional Trustee's sole duty with respect
to the custody, safe keeping and physical preservation of
the Trust Property shall be to deal with such property in a
similar manner as the Institutional Trustee deals with
similar property for its own account, subject to the
protections and limitations on liability afforded to the
Institutional Trustee under this Declaration, the Trust
Indenture Act and, to the extent applicable, Rule 3a-7 under
the Investment Company Act;
(vi) the Institutional Trustee shall have no duty or
liability for, or with respect to the value, genuineness,
existence or sufficiency of, the Trust Property or the
payment of any taxes or assessments levied thereon or in
connection therewith;
(vii) the Institutional Trustee shall not be liable
for any interest on any money received by it except as it
may otherwise agree with the Sponsor. Money held by the
Institutional Trustee need not be segregated from other
funds held by it except in relation to the Institutional
Trustee Account established by the Institutional Trustee
pursuant to this Declaration and except to the extent
otherwise required by law; and
(viii) the Institutional Trustee shall not be
responsible for monitoring the compliance by the Regular
Trustees or the Sponsor with their respective duties under
this Declaration, nor shall the Institutional Trustee be
liable for the default or misconduct of the Regular Trustees
or the Sponsor.
(c) All payments made by the Institutional Trustee or
a Paying Agent in respect of the Securities shall be made only
from the income and proceeds from the Trust Property to enable
the Institutional Trustee or Paying Agent to make payments in
accordance with the terms hereof. Each Holder, by its acceptance
of a Security, agrees that it will look solely to the income and
proceeds from the Trust Property to the extent available for
distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in
respect of any Security or for any other liability in respect of
any Security. This Section 3.9(c) does not limit the liability
of the Trustees expressly set forth elsewhere in this Declaration
or, in the case of the Institutional Trustee, in the Trust
Indenture Act.
(d) No Regular Trustee shall be liable for any act or
omission to act hereunder, except for its own gross negligence or
wilful misconduct.
SECTION 3.10 CERTAIN RIGHTS OF INSTITUTIONAL TRUSTEE.
Subject to the provisions of Section 3.9 and to the
applicable provisions of the Trust Indenture Act:
(a) the Institutional Trustee may rely and shall be
protected in acting or refraining from acting in good faith
upon any resolution, opinion of counsel, certificate,
written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) if (A) in performing its duties under this
Declaration the Institutional Trustee is required to decide
between alternative courses of action or (B) in construing
any of the provisions in this Declaration the Institutional
Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (C) the Institutional
Trustee is unsure of the application of any provision of
this Declaration, then, except as to any matter as to which
the Holders of Preferred Securities are entitled to vote
under the terms of this Declaration, the Institutional
Trustee shall deliver a notice to the Sponsor requesting
written instructions of the Sponsor as to the course of
action to be taken. The Institutional Trustee shall take
such action, or refrain from taking such action, as the
Institutional Trustee shall be instructed in writing to
take, or to refrain from taking, by the Sponsor; provided,
however, that if the Institutional Trustee does not receive
such instructions of the Sponsor within 10 Business Days
after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to
the extent practicable shall not be less than 2 Business
Days), it may, but shall be under no duty to, take or
refrain from taking such action not inconsistent with this
Declaration as it shall deem advisable and in the best
interests of the Holders, in which event the Institutional
Trustee shall have no liability except for its own bad
faith, negligence or wilful misconduct;
(c) whenever in the administration of this Declaration
the Institutional Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Institutional Trustee
(unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, request and
rely upon an Officer's Certificate;
(d) the Institutional Trustee may consult with counsel
of its selection, 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 Institutional Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Declaration at the request or direction of any of
the Holders pursuant to this Declaration, unless such
Holders shall have offered to the Institutional Trustee
reasonable security or indemnity against the costs, expenses
(including reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying with
such request or direction;
(f) the Institutional 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,
approval, bond, debenture, note or other evidence of
indebtedness or other paper or document reasonably believed
by it to be genuine, unless requested in writing to do so by
one or more Holders, but the Institutional Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit;
(g) the Institutional Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through its agents or attorneys,
and the Institutional 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; provided,
however, that the Institutional Trustee shall be responsible
for its own negligence or recklessness with respect to
selection of any agent or attorney appointed by it
hereunder;
(h) the Institutional Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in
good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it
by this Declaration;
(i) the Institutional Trustee shall not be charged
with knowledge of any default or Event of Default with
respect to the Securities unless either (A) a Responsible
Officer of the Institutional Trustee shall have actual
knowledge of the default or Event of Default or (B) written
notice of such default or Event of Default shall have been
given to the Institutional Trustee by the Sponsor, the
Regular Trustees or any Holder;
(j) no provision of this Declaration shall be deemed
to impose any duty or obligation on the Institutional
Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the
Institutional Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or
acts or to exercise any such right, power, duty or
obligation; and no permissive or discretionary power or
authority available to the Institutional Trustee shall be
construed to be a duty;
(k) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if the Institutional Trustee shall
have reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it
under the terms of this Declaration or adequate indemnity
against such risk or liability is not reasonably assured to
it;
(l) the Institutional Trustee shall have no duty to
see to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any securities) (or any rerecording, refiling
or reregistration thereof);
(m) the Institutional Trustee shall have the right at
any time to seek instructions concerning the administration
of this Declaration from any court of competent
jurisdiction; and
(n) whenever in the administration of this Declaration
the Institutional Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Institutional
Trustee (A) may request instructions from the Holders, which
instructions may only be given by the Holders of the same
amount of the Securities as would be entitled to direct the
Institutional Trustee under the terms of this Declaration in
respect of such remedies, rights or actions, (B) may refrain
from enforcing such remedy or right or taking such other
action until such instructions are received, and (C) shall
be protected in acting in accordance with such instructions.
SECTION 3.11 DELAWARE TRUSTEE.
Notwithstanding any other provision of this Declaration
other than Section 5.2, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities of the Regular
Trustees or the Institutional Trustee described in this
Declaration. Except as set forth in Section 5.2, the Delaware
Trustee shall be a trustee for the sole and limited purpose of
fulfilling the requirements of 3807 of the Business
Trust Act.
SECTION 3.12 EXECUTION OF DOCUMENTS.
Unless otherwise determined by the Regular Trustees,
and except as otherwise required by the Business Trust Act, a
majority of or, if there are only two, any Regular Trustee or, if
there is only one, such Regular Trustee is authorized to execute
on behalf of the Trust any documents that the Regular Trustees
have the power and authority to execute pursuant to Section 3.6;
PROVIDED THAT, the registration statement referred to in
Section 3.6(b)(i), including any amendments thereto, shall be
signed by all of the Regular Trustees.
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained in this Declaration and the
Securities shall be taken as the statements of the Sponsor, and
the Trustees do not assume any responsibility for their
correctness. The Trustees make no representations as to the
value or condition of the property of the Trust or any part
thereof. The Trustees make no representations as to the validity
or sufficiency of this Declaration or the Securities.
SECTION 3.14 DURATION OF TRUST.
The Trust, unless terminated pursuant to the provisions
of Article VIII hereof, shall have existence for forty-five (45)
years from the Closing Date.
SECTION 3.15 MERGERS.
(a) The Trust may not merge, consolidate or amalgamate
with or into, or enter into any other business combination with,
or be replaced by, or convey, transfer or lease its properties
and assets substantially as an entirety to any corporation or
other body, except as described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular
Trustees or, if there are more than two, a majority of the
Regular Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Institutional Trustee,
merge, consolidate or amalgamate with or into, or enter into any
other business combination with, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an
entirety to, a trust organized as such under the laws of any
state; provided, however, that:
(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Securities other
securities having substantially the same terms as the
Preferred Securities (the "Successor Securities") so
long as the Successor Securities rank the same as the
Preferred Securities rank with respect to Distributions
and payments upon liquidation, redemption and
otherwise;
(ii) the Debenture Issuer expressly appoints a trustee
of the Successor Entity that possesses the same powers and
duties as the Institutional Trustee as the Holder of the
Debentures;
(iii) the Preferred Securities or any Successor
Securities are listed, or any Successor Securities will be
listed upon notification of issuance, on any national
securities exchange or with another organization on which
the Preferred Securities are then listed or quoted, if any;
(iv) such merger, consolidation, amalgamation, other
business combination, replacement, conveyance, transfer or
lease does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally
recognized statistical rating organization within the
meaning of Rule 436(g)(12) under the Securities Act or any
successor rule or regulation;
(v) such merger, consolidation, amalgamation, other
business combination, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and
privileges of the Holders of the Securities (including any
Successor Securities) in any material respect (other than
with respect to any dilution of such Holders' interests in
the Preferred Securities as a result of such merger,
consolidation, amalgamation, replacement, conveyance,
transfer or lease);
(vi) such Successor Entity has a purpose identical to
that of the Trust;
(vii) prior to such merger, consolidation,
amalgamation, other business combination, replacement,
conveyance, transfer or lease, the Sponsor has received an
opinion of counsel to the effect that:
(A) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges
of the Holders of the Securities (including any
Successor Securities) in any material respect (other
than with respect to any dilution of the Holders'
interest in the new entity);
(B) following such merger, consolidation,
amalgamation, other business combination, replacement,
conveyance, transfer or lease, neither the Trust nor
the Successor Entity will be required to register as an
Investment Company; and
(C) following such merger, consolidation,
amalgamation, other business combination, replacement,
conveyance, transfer or lease the Trust (or the
Successor Entity) will continue not to be treated as an
association taxable as a corporation for United States
federal income tax purposes; and
(viii) the Sponsor or any permitted successor
guarantees the obligations of such Successor Entity under
the Successor Securities at least to the extent provided by
the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall
not, except with the consent of Holders of 100% in liquidation
amount of the Securities, merge, consolidate or amalgamate with
or into, enter into any other business combination with or be
replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to, any other entity or
permit any other entity to merge, consolidate or amalgamate,
merge with or into, enter into any other business combination
with or replace it if such merger, consolidation, amalgamation,
other business combination, replacement, conveyance, transfer or
lease would cause the Trust or Successor Entity to be treated as
an association taxable as a corporation for United States federal
income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 SPONSOR'S PURCHASE OF COMMON SECURITIES.
On the Closing Date the Sponsor will purchase all of
the Common Securities issued by the Trust, in an amount at least
equal to 3% of the capital of the Trust, at the same time as the
Preferred Securities are sold.
SECTION 4.2 RESPONSIBILITIES OF THE SPONSOR.
In connection with the issuance and sale of the
Preferred Securities, the Sponsor shall have the exclusive right
and responsibility to engage in the following activities:
(a) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 in relation
to the Preferred Securities, including any amendments
thereto;
(b) to determine the states in which to take
appropriate action to qualify or register for sale all or
part of the Preferred Securities and to do any and all such
acts, other than actions which must be taken by the Trust,
and advise the Trust of actions it must take, and prepare
for execution and filing any documents to be executed and
filed by the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any
such states;
(c) to prepare for filing by the Trust an
application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred Securities;
(d) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A relating to
the registration of the Preferred Securities under Section
12(b) of the Exchange Act, including any amendments thereto;
and
(e) to negotiate the terms of the Underwriting
Agreement providing for the sale of the Preferred
Securities.
ARTICLE V
TRUSTEES
SECTION 5.1 NUMBER OF TRUSTEES.
The number of Trustees initially shall be three (3),
and:
(a) at any time before the issuance of any Securities,
the Sponsor may, by written instrument, increase or decrease
the number of Trustees; and
(b) after the issuance of any Securities, the number
of Trustees may be increased or decreased by vote of the
Holders of a majority in liquidation amount of the Common
Securities voting as a class at a meeting of the Holders of
the Common Securities; provided, however, that the number of
Trustees shall in no event be less than two (2); and
provided, further, that, (1) there shall be at least one
Trustee who is an employee or officer of, or is affiliated
with the Sponsor (a "Regular Trustee"); (2) one Trustee
shall be the Institutional Trustee for so long as this
Declaration is required to qualify as an indenture under the
Trust Indenture Act, and such Trustee may also serve as
Delaware Trustee if it meets the applicable requirements;
and (3) there shall be a Delaware Trustee to the extent
required under Section 5.2.
SECTION 5.2 DELAWARE TRUSTEE.
If required by the Business Trust Act, one Trustee (the
"Delaware Trustee") shall be:
(a) a natural person who is a resident of the state of
Delaware; or
(b) if not a natural person, an entity which has its
principal place of business in the State of Delaware, and
otherwise meets the requirements of applicable law;
provided, however, that if the Institutional Trustee has its
principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law, then the
Institutional Trustee may also be the Delaware Trustee and
Section 3.11 shall have no application.
SECTION 5.3 INSTITUTIONAL TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which
shall act as "Institutional Trustee" which shall be:
(i) not an Affiliate of the Sponsor; and
(ii) 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
(iii)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 United States Dollar equivalent of the applicable
foreign currency and subject to supervision or examination
by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision
or examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Institutional Trustee shall
cease to be eligible to so act under Section 5.3(a), the
Institutional Trustee shall immediately resign in the manner and
with the effect set forth in Section 5.7(c).
(c) If the Institutional Trustee has or shall acquire
any "conflicting interest" within the meaning of 310(b)
of the Trust Indenture Act, the Institutional Trustee and the
Holder of the Common Securities (as if it were the obligor
referred to in 310(b) of the Trust Indenture Act) shall
in all respects comply with the provisions of 310(b) of
the Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed
to be specifically described in this Declaration for purposes of
clause (i) of the first provision contained in Section 310(b) of
the Trust Indenture Act.
(e) The initial Institutional Trustee shall be:
Wilmington Trust Company.
SECTION 5.4 CERTAIN QUALIFICATIONS OF REGULAR TRUSTEES AND
DELAWARE TRUSTEE GENERALLY.
Each Regular Trustee and the Delaware Trustee (unless
the Institutional Trustee also acts as Delaware Trustee) shall be
either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more Authorized
Officers.
SECTION 5.5 REGULAR TRUSTEES.
The initial Regular Trustees shall be:
Lawrence J. Pierce
Dorothy K. Mercer.
(a) Except as expressly set forth in this Declaration
and except if a meeting of the Regular Trustees is called with
respect to any matter over which the Regular Trustees have power
to act, any power of the Regular Trustees may be exercised by, or
with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular
Trustees, and except as otherwise required by the Business Trust
Act or applicable law, any Regular Trustee is authorized to
execute on behalf of the Trust any documents which the Regular
Trustees have the power and authority to cause the Trust to
execute pursuant to Section 3.6, provided, however, that the
registration statement referred to in Section 3.6, including any
amendments thereto, shall be signed by all of the Regular
Trustees.
(c) A Regular Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purposes of
signing any documents which the Regular Trustees have power and
authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 DELAWARE TRUSTEE.
The initial Delaware Trustee shall be:
Wilmington Trust Company.
SECTION 5.7 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 5.7(b), Trustees may be
appointed or removed without cause at any time except during an
Event of Default:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of
the Holders of a Majority in liquidation amount of the
Common Securities voting as a class at a meeting of the
Holders of the Common Securities.
(b) (i) The Institutional Trustee shall not be removed
in accordance with Section 5.7(a) until a Successor Institutional
Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Institutional
Trustee and delivered to the Regular Trustees and the Sponsor;
and
(ii) the Delaware Trustee shall not be removed in
accordance with this Section 5.7(a) until a successor
Trustee possessing the qualifications to act as Delaware
Trustee under Sections 5.2 and 5.4 (a "Successor Delaware
Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular Trustees and
the Sponsor.
(c) A Trustee appointed to office shall hold office
until his successor shall have been appointed or until his death,
removal or resignation. Any Trustee may resign from office
(without need for prior or subsequent accounting) by an
instrument in writing signed by the Trustee and delivered to the
Sponsor and the Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein;
provided, however, that:
(i) no such resignation of the Institutional Trustee
shall be effective:
(A) until a Successor Institutional Trustee has
been appointed and has accepted such appointment by
instrument executed by such Successor Institutional
Trustee and delivered to the Trust, the Sponsor and the
resigning Institutional Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof
distributed to the holders of the Securities; and
(ii) no such resignation of the Delaware Trustee shall
be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to
the Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use all
reasonable efforts to promptly appoint a Successor Delaware
Trustee or Successor Institutional Trustee as the case may be if
the Institutional Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 5.7.
(e) If no Successor Institutional Trustee or Successor
Delaware Trustee shall have been appointed and accepted
appointment as provided in this Section 5.7 within 60 days after
delivery of an instrument of resignation or removal, the
Institutional Trustee or Delaware Trustee resigning or being
removed, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Institutional Trustee
or Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall
be liable for the acts or omissions to act of any Successor
Institutional Trustee or Successor Delaware Trustee, as the case
may be.
SECTION 5.8 VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and
the number of Trustees is not reduced pursuant to Section 5.1, or
if the number of Trustees is increased pursuant to Section 5.1, a
vacancy shall occur. A resolution certifying the existence of
such vacancy by the Regular Trustees or, if there are more than
two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.7.
SECTION 5.9 EFFECT OF VACANCIES.
The death, resignation, retirement, removal,
bankruptcy, dissolution, liquidation, incompetence or incapacity
to perform the duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of Regular Trustees
shall occur, until such vacancy is filled by the appointment of
Regular Trustee in accordance with Section 5.7, the Regular
Trustees in office, regardless of their number, shall have all
the powers granted to the Regular Trustees and shall discharge
all the duties imposed upon the Regular Trustees by this
Declaration.
SECTION 5.10 MEETINGS.
If there is more than one Regular Trustee, meetings of
the Regular Trustees shall be held from time to time upon the
call of any Regular Trustee. Regular meetings of the Regular
Trustees may be held at a time and place fixed by resolution of
the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight
courier) not less than 48 hours before such meeting. Notice of
any telephonic meetings of the Regular Trustees or any committee
thereof shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier)
not less than 24 hours before a meeting. Notices shall contain a
brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of
a Regular Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction
of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Regular Trustees may be taken at a
meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with
respect to such matter, provided that a Quorum is present, or
without a meeting by the unanimous written consent of the Regular
Trustees. In the event there is only one Regular Trustee, any
and all action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
SECTION 5.11 DELEGATION OF POWER.
(a) Any Regular Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 3.6, including
any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) the Regular Trustees shall have power to delegate
from time to time to such of their number or to officers of the
Trust the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the
Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set
forth herein.
SECTION 5.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Institutional Trustee or
the Delaware Trustee, as the case may be, may be merged or
converted or with which either may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware
Trustee, as the case may be, shall be a party, or any corporation
succeeding to all or substantially all the corporate trust
business of the Institutional Trustee or the Delaware Trustee, as
the case may be, shall be the successor of the Institutional
Trustee or the Delaware Trustee, as the case may be, 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.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS.
Holders shall receive Distributions (as defined herein)
in accordance with the applicable terms of the Securities.
Distributions shall be made on the Preferred Securities and the
Common Securities in accordance with the preferences set forth in
their respective terms. If and to the extent that the Debenture
Issuer makes a payment of interest (including Compounded Interest
(as defined in the Indenture) and Additional Interest (as defined
in the Indenture)), premium and/or principal on the Debentures
held by the Institutional Trustee (the amount of any such payment
being a "Payment Amount"), the Institutional Trustee shall and is
directed, to the extent funds are available for that purpose, to
make a distribution (a "Distribution") of the Payment Amount to
Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 GENERAL PROVISIONS REGARDING SECURITIES.
(a) The Regular Trustees shall on behalf of the Trust
issue one class of preferred securities representing undivided
beneficial interests in the assets of the Trust having such terms
as are set forth in Annex I (the "Preferred Securities") and one
class of common securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set
forth in Annex I (the "Common Securities"). The Trust shall
issue no securities or other interests in the assets of the Trust
other than the Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the
Trust by a Regular Trustee. Such signature shall be the manual
or facsimile signature of any present or any future Regular
Trustee. In case any Regular Trustee of the Trust who shall have
signed any of the Securities shall cease to be such Regular
Trustee before the Certificates so signed shall be delivered by
the Trust, such Certificates nevertheless may be delivered as
though the person who signed such Certificates had not ceased to
be such Regular Trustee; and any Certificate may be signed on
behalf of the Trust by such persons who, at the actual date of
execution of such Security, shall be the Regular Trustees of the
Trust, although at the date of the execution and delivery of the
Declaration any such person was not such a Regular Trustee.
Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the
Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification
or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply
with any law or with any rule or regulation of any stock exchange
on which Securities may be listed, or to conform to usage.
(c) The consideration received by the Trust for the
issuance of the Securities shall constitute a contribution to the
capital of the Trust and shall not constitute a loan to the
Trust.
(d) Upon issuance of the Securities as provided in
this Declaration and the receipt of the consideration to be
received therefor, the Securities so issued shall be deemed to be
validly issued, fully paid and non-assessable.
(e) Every Person, by virtue of having become a Holder
or a Preferred Security Beneficial Owner in accordance with the
terms of this Declaration, shall be deemed to have expressly
assented and agreed to the terms of, and shall be bound by, this
Declaration.
SECTION 7.2 PAYING AGENT.
The Trust shall appoint a paying agent (the "Paying
Agent") and may appoint one or more additional paying agents in
such other locations as it shall determine. The term "Paying
Agent" includes any additional paying agent. The Trust may
change any Paying Agent without prior notice to any Holder. The
Trust shall notify the Institutional Trustee of the name and
address of any Agent not a party to this Declaration. If the
Trust fails to appoint or maintain another entity as Paying
Agent, the Institutional Trustee shall act as such. The Trust or
any of its Affiliates may act as Paying Agent. Wilmington Trust
Company shall initially act as Paying Agent for the Preferred
Securities and the Common Securities.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 TERMINATION OF TRUST.
(a) The Trust shall terminate:
(i) upon the occurrence of an Event of Default
described in clause (d) or (e) of Section 701 of the
Indenture;
(ii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor; the filing of a
certificate of cancellation with respect to the Trust after
having obtained the consent of a majority in liquidation
amount of the Securities voting together as a single class
to file such certificate of cancellation; or the revocation
of the Sponsor's charter and the expiration of 90 days after
the date of revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial
dissolution of the Holder of the Common Securities, the
Sponsor or the Trust;
(iv) when all of the Securities shall have been called
for redemption and the amounts necessary for redemption
thereof shall have been paid to the Holders in accordance
with the terms of the Securities;
(v) upon the occurrence and continuation of a Tax
Event in connection with which the Trust shall have been
dissolved in accordance with the terms of the Securities and
all of the Debentures endorsed thereon shall have been
distributed to the Holders of Securities in exchange for all
of the Securities; or
(vi) before the issuance of any Securities, with the
consent of all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of
an event referred to in Section 8.1(a), the Trustees shall file a
certificate of cancellation with the Secretary of State of the
State of Delaware.
(c) The provisions of Section 3.9 and Article X shall
survive the termination of the Trust except as contemplated in
Section 1005 of the Indenture.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 TRANSFER OF SECURITIES.
(a) Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in
this Declaration and in the terms of the Securities. Any
transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities
shall be freely transferable.
(c) The Preferred Securities are to be initially
registered in the name of Cede & Co., as nominee for The
Depository Trust Company (the "Depositary") and the Preferred
Security Certificates so initially registered shall bear such
legends as required by the Depositary. Such Preferred Securities
shall not be transferable or exchangeable, nor shall any
purported transfer be registered, except as follows:
(i) such Preferred Securities may be transferred in
whole, and appropriate registration of transfer effected, if
such transfer is by such nominee to the Depositary, or by
the Depositary to another nominee thereof, or by any nominee
of the Depositary to any other nominee thereof, or by the
Depositary or any nominee thereof to any successor
securities depositary or any nominee thereof; and
(ii) such Preferred Securities shall be exchanged for
Preferred Securities Certificates registered in the
respective names of the beneficial holders thereof, and
thereafter shall be transferable without restriction, if:
(A) the Depositary, or any successor securities
depositary, shall have notified the Company and the
Institutional Trustee that it is unwilling or unable to
continue to act as securities depositary with respect to
such Preferred Securities and the Institutional Trustee
shall not have been notified by the Company within ninety
(90) days of the identity of a successor securities
depositary with respect to such Preferred Securities;
(B) the Company shall have delivered to the
Institutional Trustee an Officer's Certificate to the effect
that such Preferred Securities shall be so exchangeable on
and after a date specified therein; or
(C) (1) an Event of Default shall have occurred
and be continuing, (2) the Institutional Trustee shall have
given notice of such Event of Default pursuant to Section
2.7 of this Declaration and (3) there shall have been
delivered to the Company and the Institutional Trustee an
opinion of counsel to the effect that the interests of the
beneficial owners of such Preferred Securities in respect
thereof will be materially impaired unless such owners
become Holders of Preferred Securities Certificates.
(d) The Sponsor shall maintain 100% direct ownership
of the Common Securities by the Sponsor or any Affiliate thereof,
except as otherwise provided in Section 1005 of the Indenture.
SECTION 9.2 TRANSFER OF CERTIFICATES.
The Regular Trustees shall provide for the registration
of Certificates and of transfers of Certificates, which will be
effected without charge but only upon payment (with such
indemnity as the Regular Trustees may reasonably require) in
respect of any documentary stamp tax or other similar
governmental charges that may be imposed in relation to it. Upon
surrender for registration of transfer of any Certificate, the
Regular Trustees shall cause one or more new Certificates to be
issued in the name of the designated transferee or transferees.
Every Certificate surrendered for registration of transfer shall
be accompanied by a written instrument of transfer in form
satisfactory to the Regular Trustees duly executed by the Holder
or such Holder's attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer shall be
canceled by the Regular Trustees. A transferee of a Certificate
shall be entitled to the rights and be subject to the obligations
of a Holder hereunder upon the receipt by such transferee of a
Certificate. By acceptance of a Certificate, each transferee
shall be deemed to have agreed to be bound by this Declaration.
SECTION 9.3 DEEMED SECURITY HOLDERS.
The Trustees may treat the Person in whose name any
Certificate shall be registered on the books and records of the
Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of
receiving Distributions and for all other purposes whatsoever
and, accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any
Person, whether or not the Trust shall have actual or other
notice thereof.
SECTION 9.4 PREFERRED SECURITY CERTIFICATES.
(a) Preferred Security Certificates shall be prepared
by the Regular Trustees on behalf of the Trust with respect
to such Preferred Securities; and
(b) Preferred Security Certificates shall be printed,
lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Regular Trustees,
as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to
comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock
exchange on which Preferred Securities may be listed, or to
conform to usage.
SECTION 9.5 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If:
(a) any mutilated Certificates should be surrendered
to the Regular Trustees, or if the Regular Trustees shall receive
evidence to their satisfaction of the destruction, loss or theft
of any Certificate; and
(b) there shall be delivered to the Regular Trustees
such security or indemnity as may be required by them to keep
each of them harmless,
then, in the absence of notice that such Certificate shall have
been acquired by a person purporting to be a bona fide purchaser,
any Regular Trustee on behalf of the Trust shall execute and
deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new
Certificate under this Section 9.5, the Regular Trustees may
require the payment of a sum sufficient to cover any documentary
stamp tax or other similar governmental charge that may be
imposed in connection therewith. Any duplicate Certificate
issued pursuant to this Section shall constitute conclusive
evidence of an ownership interest in the relevant Securities, as
if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 LIABILITY.
(a) Except as expressly set forth in this Declaration,
the Securities Guarantees and the terms of the Securities, the
Sponsor shall not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon) of the
Holders of the Securities which shall be made solely from
assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or
otherwise.
(b) The Sponsor shall be liable for all of the debts
and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's
assets.
(c) Pursuant to 3803(a) of the Business
Trust Act, the Holders of the Preferred Securities shall be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware.
SECTION 10.2 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of
such Indemnified Person's gross negligence or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the
Trust by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional
or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
Distributions to Holders of Securities might properly be paid.
SECTION 10.3 FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Declaration shall
not be liable to the Trust or to any other Covered Person for its
good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict
the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on
the Institutional Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any Holder of
Securities,
the Indemnified Person shall resolve such conflict of interest,
take such action or provide such terms, considering in each case
the relative interest of each party (including its own interest)
to such conflict, agreement, transaction or situation and the
benefits and burdens relating to such interests, any customary or
accepted industry practices, and any applicable generally
accepted accounting practices or principles. In the absence of
bad faith by the Indemnified Person, the resolution, action or
term so made, taken or provided by the Indemnified Person shall
not constitute a breach of this Declaration or any other
agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person
is permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other or
different standard imposed by this Declaration or by
applicable law.
SECTION 10.4 INDEMNIFICATION.
(a) (i) The Sponsor shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Trust) by
reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act
in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or
is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees and
expenses) actually and reasonably incurred by him in
connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of
the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which
such Company Indemnified Person shall have been adjudged to
be liable to the Trust unless and only to the extent that
the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified
Person shall be successful on the merits or otherwise
(including dismissal of an action without prejudice or the
settlement of an action without admission of liability) in
defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in
defense of any claim, issue or matter therein, he shall be
indemnified, to the full extent permitted by law, against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii)
of this Section 10.4(a) (unless ordered by a court) shall be
made by the Sponsor only as authorized in the specific case
upon a determination that indemnification of the Company
Indemnified Person is proper in the circumstances because he
has met the applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination shall be made
(1) by the Regular Trustees by a majority vote of a quorum
consisting of such Regular Trustees who were not parties to
such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion, or (3) by the Holders of
the Common Securities.
(v) Expenses (including attorneys' fees and expenses)
incurred by a Company Indemnified Person in defending civil,
criminal, administrative or investigative action, suit or
proceeding referred to in paragraphs (i) and (ii) of this
Section 10.4(a) shall be paid by the Sponsor in advance of
the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf such Company
Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the Sponsor as authorized in this Section
10.4(a). Notwithstanding the foregoing, no advance shall be
made by the Debenture Issuer if a determination is
reasonably and promptly made (i) by the Regular Trustees by
a majority vote of a quorum of disinterested Regular
Trustees, (ii) if such a quorum is not obtainable, or, even
if obtainable, if a quorum of disinterested Regular Trustees
so directs, by independent legal counsel in a written
opinion or (iii) the Common Security Holder of the Trust,
that, based upon the facts known to the Regular Trustees,
counsel or the Common Security Holder at the time such
determination is made, such Company Indemnified Person acted
in bad faith or in a manner that such person did not believe
to be in or not opposed to the best interests of the Trust,
or, with respect to any criminal proceeding, that such
Company Indemnified Person believed or had reasonable cause
to believe his conduct was unlawful. In no event shall any
advance be made in instances where the Regular Trustees,
independent legal counsel or Holders of the Common
Securities reasonably determine that such person
deliberately breached his duty to the Trust or the Holders
of the Preferred Securities.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 10.4(a) shall not be deemed exclusive of any
other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement,
vote of stockholders or disinterested directors of the
Sponsor or vote of Holders of Preferred Securities or
otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office. All
rights to indemnification under this Section 10.4(a) shall
be deemed to be provided by a contract between the Sponsor
and each Company Indemnified Person who serves in such
capacity at any time while this Section 10.4(a) is in
effect. Any repeal or modification of this Section 10.4(a)
shall not affect any rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and
maintain insurance on behalf of any person who is or was a
Company Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the
Sponsor would have the power to indemnify him against such
liability under the provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references
to "the Trust" shall include, in addition to the resulting
or surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a merger,
consolidation, amalgamation or other business combination so
that any person who is or was a director, trustee, officer
or employee of such constituent entity, or is or was serving
at the request of such constituent entity as a director,
trustee, officer, employee or agent of another entity, shall
stand in the same position under the provisions of this
Section 10.4(a) with respect to the resulting or surviving
entity as he would have with respect to such constituent
entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a)
shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(b) The Sponsor agrees to indemnify the (i)
Institutional Trustee, (ii) the Delaware Trustee, (iii) any
Affiliate of the Institutional Trustee and the Delaware Trustee,
and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or
agents of the Institutional Trustee and the Delaware Trustee
(each of the Persons in (i) through (iv) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary
Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense including taxes (other than taxes based
on the income of such Fiduciary Indemnified Person) incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration or the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against
or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligation to indemnify as set forth in this Section 10.4(b)
shall survive the satisfaction and discharge of this Declaration.
SECTION 10.5 OUTSIDE BUSINESSES.
Any Covered Person, the Sponsor, the Delaware Trustee
and the Institutional Trustee may engage in or possess an
interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in
and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed
wrongful or improper. No Covered Person, the Sponsor, the
Delaware Trustee, or the Institutional Trustee shall be obligated
to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the
Institutional Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate
of the Sponsor, or may act as depositary for, trustee or agent
for, or act on any committee or body of holders of, securities or
other obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 FISCAL YEAR.
The fiscal year ("Fiscal Year") of the Trust shall be
the calendar year, or such other year as is required by the Code.
SECTION 11.2 CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust,
the Regular Trustees shall keep, or cause to be kept, full books
of account, records and supporting documents, which shall reflect
in reasonable detail, each transaction of the Trust. The books
of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the
accrual method of accounting for United States federal income tax
purposes. The books of account and the records of the Trust
shall be examined by and reported upon as of the end of each
Fiscal Year of the Trust by a firm of independent certified
public accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared
and delivered to each of the Holders of Securities, within 90
days after the end of each Fiscal Year of the Trust, annual
financial statements of the Trust, including a balance sheet of
the Trust as of the end of such Fiscal Year, and the related
statements of income or loss;
(c) The Regular Trustees shall cause to be duly
prepared and delivered to each of the Holders of Securities, any
annual United States federal income tax information statement,
required by the Code, containing such information with regard to
the Securities held by each Holder as is required by the Code and
the Treasury Regulations. Notwithstanding any right under the
Code to deliver any such statement at a later date, the Regular
Trustees shall endeavor to deliver all such statements within 30
days after the end of each calendar year.
(d) The Regular Trustees shall cause to be duly
prepared and filed with the appropriate taxing authority, an
annual United States federal income tax return, on a Form 1041 or
such other form required by United States federal income tax law,
and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or
local taxing authority.
SECTION 11.3 BANKING.
The Trust shall maintain one or more bank accounts in
the name and for the sole benefit of the Trust; provided,
however, that all payments of funds in respect of the Debentures
held by the Institutional Trustee shall be made directly to the
Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The
sole signatories for such accounts shall be designated by the
Regular Trustees; provided, however, that the Institutional
Trustee shall designate the signatories for the Institutional
Trustee Account.
SECTION 11.4 WITHHOLDING.
The Trust and the Regular Trustees shall comply with
all withholding requirements under United States federal, state
and local law. The Trust shall request, and the Holders shall
provide to the Trust, such forms or certificates as are necessary
to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of,
and in fulfilling, its withholding obligations. The Regular
Trustees shall file required forms with applicable jurisdictions
and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the
Holder to applicable jurisdictions. To the extent that the Trust
is required to withhold and pay over any amounts to any authority
with respect to distributions or allocations to any Holder, the
amount withheld shall be deemed to be a distribution in the
amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action
against the applicable jurisdiction. If the amount required to
be withheld was not withheld from actual Distributions made, the
Trust may reduce subsequent Distributions by the amount of such
withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 AMENDMENTS.
(a) Except as otherwise provided in this Declaration
or by any applicable terms of the Securities, this Declaration
may only be amended by a written instrument approved and executed
by:
(i) the Regular Trustees (or, if there are more than
two Regular Trustees a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Institutional
Trustee, the Institutional Trustee; and
(iii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee,
the Delaware Trustee;
(b) no amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Institutional Trustee shall have first received an Officer's
Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of
this Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment
which affects the rights, powers, duties, obligations or
immunities of the Institutional Trustee, the Institutional
Trustee shall have first received:
(A) an Officer's Certificate from each of the
Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
and
(iii) to the extent the result of such amendment
would be to:
(A) cause the trust to be classified for purposes
of United States federal income taxation as an
association taxable as a corporation;
(B) reduce or otherwise adversely affect the
powers of the Institutional Trustee in contravention of
the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(c) at such time after the Trust has issued any
Securities that remain outstanding, any amendment that would
adversely affect the rights, privileges or preferences of any
Holder of Securities may be effected only with such additional
requirements as may be set forth in the terms of such Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be
amended without the consent of all of the Holders of the
Securities;
(e) Article IV shall not be amended without the
consent of the Holders of a Majority in liquidation amount of the
Common Securities and;
(f) the rights of the holders of the Common Securities
under Article V to increase or decrease the number of, and
appoint and remove Trustees shall not be amended without the
consent of the Holders of a Majority in liquidation amount of the
Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration
may be amended without the consent of the Holders of the
Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any
other provision of this Declaration;
(iii) add to the covenants, restrictions or obligations
of the Sponsor;
(iv) conform to any change in Rule 3a-5 or written
change in interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory
authority which amendment does not have a material adverse
effect on the right, preferences or privileges of the
Holders; and
(v) modify, eliminate and/or add any provision of,
from or to this Declaration in any other respect so long as
such modification, elimination or addition shall not
adversely affect the interests of the Holders of Preferred
Securities in any material respect.
SECTION 12.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY
WRITTEN CONSENT.
(a) Meetings of the Holders of any class of Securities
may be called at any time by the Regular Trustees (or as provided
in the terms of the Securities) to consider and act on any matter
on which Holders of such class of Securities are entitled to act
under the terms of this Declaration, the terms of the Securities
or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular
Trustees shall call a meeting of the Holders of such class if
directed to do so by the Holders of at least 33% in liquidation
amount of such class of Securities. Such direction shall be
given by delivering to the Regular Trustees one or more calls in
a writing stating that the signing Holders of Securities wish to
call a meeting and indicating the general or specific purpose for
which the meeting is to be called. Any Holders of Securities
calling a meeting shall specify in writing the Security
Certificates held by the Holders of Securities exercising the
right to call a meeting and only those Securities specified shall
be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph has
been met.
(b) Except to the extent otherwise provided in the
terms of the Securities, the following provisions shall apply to
meetings of Holders of Securities:
(i) notice of any such meeting shall be given to all
the Holders of Securities having a right to vote thereat at
least 21 days and not more than 18 days before the date of
such meeting. Whenever a vote, consent or approval of the
Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading,
such vote, consent or approval may be given at a meeting of
the Holders of Securities. Any action that may be taken at
a meeting of the Holders of Securities may be taken without
a meeting if a consent in writing setting forth the action
so taken is signed by the Holders of Securities owning not
less than the minimum amount in liquidation amount that
would be necessary to authorize or take such action at a
meeting at which all Holders of Securities having a right to
vote thereon were present and voting. Prompt notice of the
taking of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not
consented in writing. The Regular Trustees may specify that
any written ballot submitted to the Security Holder for the
purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the
Regular Trustees;
(ii) each Holder of a Security may authorize any Person
to act for it by proxy on all matters in which a Holder of
Securities is entitled to participate, including waiving
notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of 11
months from the date thereof unless otherwise provided in
the proxy. Every proxy shall be revocable at the pleasure
of the Holder of Securities executing it. Except as
otherwise provided herein, all matters relating to the
giving, voting or validity of proxies shall be governed by
the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Securities
shall be conducted by the Regular Trustees or by such other
Person that the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration,
the terms of the Securities, the Trust Indenture Act or the
listing rules of any stock exchange on which the Preferred
Securities are then listed or trading, otherwise provides,
the Regular Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of
Holders of Securities, including notice of the time, place
or purpose of any meeting at which any matter is to be voted
on by any Holders of Securities, waiver of any such notice,
action by consent without a meeting, the establishment of a
record date, quorum requirements, voting in person or by
proxy or any other matter with respect to the exercise of
any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL
TRUSTEE.
The Trustee that acts as initial Institutional Trustee
represents and warrants to the Trust and to the Sponsor at the
date of this Declaration, and each Successor Institutional
Trustee represents and warrants to the Trust and the Sponsor at
the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee, that:
(a) the Institutional Trustee is a Delaware banking
corporation with trust powers and authority to execute and
deliver, and to carry out and perform its obligations under
the terms of, this Declaration;
(b) the execution, delivery and performance by the
Institutional Trustee of the Declaration has been duly
authorized by all necessary corporate action on the part of
the Institutional Trustee. The Declaration has been duly
executed and delivered by the Institutional Trustee, and it
constitutes a legal, valid and binding obligation of the
Institutional Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar
laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this
Declaration by the Institutional Trustee does not conflict
with or constitute a breach of the charter or by-laws of the
Institutional Trustee; and
(d) no consent, approval or authorization of, or
registration with or notice to, any Delaware or other state
or any federal banking authority is required for the
execution, delivery or performance by the Institutional
Trustee of this Declaration.
SECTION 13.2 REPRESENTATIONS AND WARRANTIES OF DELAWARE
TRUSTEE.
The Trustee that acts as initial Delaware Trustee
represents and warrants to the Trust and to the Sponsor at the
date of this Declaration, and each Successor Delaware Trustee
represents and warrants to the Trust and the Sponsor at the time
of the Successor Delaware Trustee's acceptance of its appointment
as Delaware Trustee, that:
(a) The Delaware Trustee is duly organized, validly
existing and in good standing under the laws of the State of
Delaware, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under
the terms of, this Declaration.
(b) The Delaware Trustee has been authorized to
perform its obligations under the Certificate of Trust and
the Declaration. The Declaration under Delaware law
constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) No consent, approval or authorization of, or
registration with or notice to, any Delaware or other state
or any federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee
of this Declaration.
(d) The Delaware Trustee is a natural person who is a
resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business
in the State of Delaware.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 NOTICES.
All notices provided for in this Declaration shall be
in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first class mail, as
follows:
(a) if given to the Trust, in care of the Regular
Trustees at the Trust's mailing address set forth below (or
such other address as the Trust may give notice of to the
Holders of the Securities):
Washington Water Power Capital II
c/o The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Telecopy: (509) 489-4879
(b) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as Delaware
Trustee may give notice of to the Holders of the
Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telecopy: (302) 651-1576
(c) if given to the Institutional Trustee, at the
Institutional Trustee's mailing address set forth below (or
such other address as the Institutional Trustee may give
notice of to the Holders of the Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telecopy: (302) 651-1576
(d) if given to the Holder of the Common Securities,
at the mailing address of the Sponsor set forth below (or
such other address as the Holder of the Common Securities
may give notice to the Trust):
The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Telecopy: (509) 482-4879
(e) if given to any other Holder, at the address set
forth on the books and records of the Trust.
All such notices shall be deemed to have been given
when received in person with receipt confirmed, or mailed by
first class mail, postage prepaid except that if a notice or
other document is refused delivery or cannot be delivered because
of a changed address of which no notice was given, such notice or
other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 GOVERNING LAW.
This Declaration and the rights of the parties
hereunder shall be governed by and interpreted in accordance with
the laws of the State of Delaware, and all rights and remedies
shall be governed by such laws without regard to principles of
conflict of laws.
SECTION 14.3 INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the
Trust be classified for United States federal income tax purposes
as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
SECTION 14.4 HEADINGS.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the
interpretation of this Declaration or any provision hereof.
SECTION 14.5 SUCCESSORS AND ASSIGNS.
Whenever in this Declaration any of the parties hereto
is named or referred to, the successors and assigns of such party
shall be deemed to be included, and all covenants and agreements
in this Declaration by the Sponsor and the Trustees shall bind
and inure to the benefit of their respective successors and
assigns, whether so expressed.
SECTION 14.6 PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the
application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the
application of such provision to persons or circumstances other
than those to which it is held invalid, shall not be affected
thereby.
SECTION 14.7 COUNTERPARTS.
This Declaration may contain more than one counterpart
of the signature page and this Declaration may be executed by the
affixing of the signature of each of the Trustees to one of such
counterpart signature pages. All of such counterpart signature
pages shall be read as though one, and they shall have the same
force and effect as though all of the signers had signed a single
signature page.
[PAGE BREAK]
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed as of the day and year first above
written.
_____________________
LAWRENCE J. PIERCE,
as Regular Trustee
_____________________
DOROTHY K. MERCER,
as Regular Trustee
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:_______________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Institutional Trustee
By:_______________________
Name:
Title:
THE WASHINGTON WATER POWER COMPANY,
as Sponsor
By:_______________________
Name:
Title:
[PAGE BREAK]
Annex I
[PAGE BREAK]
ANNEX I
TERMS OF
____% TRUST ORIGINATED PREFERRED SECURITIES, SERIES B
____% TRUST ORIGINATED COMMON SECURITIES, SERIES B
Pursuant to Section 7.1 of the Amended and Restated
Declaration of Trust, dated as of ________, 199_ (as amended from
time to time, the "Declaration"), the designation, rights,
privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities and the Common Securities
are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration or, if not
defined in such Declaration, as defined in the Prospectus
referred to below):
1. DESIGNATION AND NUMBER.
(a) PREFERRED SECURITIES. __________ Preferred
Securities of the Trust with an aggregate liquidation amount with
respect to the assets of the Trust of _____________________
($___________) and a liquidation amount with respect to the
assets of the Trust of $25 per preferred security, are hereby
designated for the purposes of identification only as "____%
Trust Originated Preferred Securities, Series B ('TOPrS' )" (the
"Preferred Securities"). The Preferred Security Certificates
evidencing the Preferred Securities shall be substantially in the
form of Exhibit A-1 to the Declaration, with such changes and
additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice or to conform to the rules of
any stock exchange on which the Preferred Securities are listed.
(b) COMMON SECURITIES. _______ Common Securities of
the Trust with an aggregate liquidation amount with respect to
the assets of the Trust of ______________________ dollars
($_________) and a liquidation amount with respect to the assets
of the Trust of $25 per common security, are hereby designated
for the purposes of identification only as "____% Trust
Originated Common Securities, Series B" (the "Common
Securities"). The Common Security Certificates evidencing the
Common Securities shall be substantially in the form of Exhibit
A-2 to the Declaration, with such changes and additions thereto
or deletions therefrom as may be required by ordinary usage,
custom or practice.
2. DISTRIBUTIONS.
(a) Distributions payable on each Security will be
fixed at a rate of ____% per annum (the "Coupon Rate") of the
stated liquidation amount of $25 per Security, such rate being
the rate of interest payable on the Debentures to be held by the
Institutional Trustee. Distributions in arrears for more than
one quarter will bear interest thereon compounded quarterly at
the Coupon Rate (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such cash
distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. The amount of Distributions
payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number
of days elapsed per 90-day quarter.
(b) Distributions on the Securities will be
cumulative, will accrue from ______, 199_, and will be payable
quarterly in arrears, on March 31, June 30, September 30, and
December 31 of each year, commencing on ________ __, 199_, except
as otherwise described below. The Debenture Issuer has the right
under the Indenture to defer payments of interest by extending
the interest payment period from time to time on the Debentures
for a period not exceeding 20 consecutive quarters (each an
"Extension Period"), during which Extension Period no interest
shall be due and payable on the Debentures, provided, however,
that no Extension Period shall last beyond the date of maturity
of the Debentures. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral,
quarterly Distributions will continue to accrue with interest
thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly during any such Extension Period.
Prior to the termination of any such Extension Period, the
Debenture Issuer may further extend such Extension Period;
provided, however, that such Extension Period, together with all
such previous and further extensions thereof, may not exceed 20
consecutive quarters or extend beyond the maturity of the
Debentures. Payments of accrued Distributions will be payable to
Holders as they appear on the books and records of the Trust on
the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of
all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements.
(c) Distributions on the Securities will be payable to
the Holders thereof as they appear on the books and records of
the Trust on the relevant record dates. The relevant record
dates for the Preferred Securities shall conform to the rules of
any securities exchange on which the securities are listed and,
if none, shall be selected by the Regular Trustees, which dates
shall be at least one Business Day but less than 50 Business Days
before the relevant payment dates, which payment dates correspond
to the interest payment dates on the Debentures. The relevant
record dates for the Common Securities shall be the same record
date as for the Preferred Securities. Distributions payable on
any Securities that are not punctually paid on any Distribution
payment date, as a result of the Debenture Issuer having failed
to make a payment under the Debentures, will cease to be payable
to the Person in whose name such Securities are registered on the
relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Securities
are registered on the special record date or other specified date
determined in accordance with the Indenture. If any date on
which Distributions are payable on the Securities is not a
Business Day, then payment of the Distribution payable on such
date will be made on the next succeeding day that is a Business
Day except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on such date.
(d) In the event that there is any money or other
property held by or for the Trust that is not accounted for
hereunder, such property shall be distributed Pro Rata (as
defined herein) among the Holders of the Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
In the event of any voluntary or involuntary
dissolution, winding-up or termination of the Trust, the Holders
of the Securities on the date of the dissolution, winding-up or
termination, as the case may be, will be entitled to receive out
of the assets of the Trust available for distribution to Holders
of Securities after satisfaction of liabilities of creditors an
amount equal to the aggregate of the stated liquidation amount of
$25 per Security plus accrued and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such dissolution,
winding-up or termination, Debentures in an aggregate stated
principal amount equal to the aggregate stated liquidation amount
of such Securities, with an interest rate equal to the Coupon
Rate of, accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on, such Securities, shall be
distributed on a Pro Rata basis to the Holders of the Securities
in exchange for such Securities.
If, upon any such dissolution, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by
the Trust on the Securities shall be paid on a Pro Rata basis.
4. REDEMPTION AND DISTRIBUTION.
(a) Upon the repayment of the Debentures in whole or
in part, whether at maturity or upon redemption (either at the
option of the Debenture Issuer or pursuant to a Tax Event as
described below), the proceeds from such repayment shall be
simultaneously applied to redeem Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed at a redemption price of $25 per
Security plus an amount equal to accrued and unpaid Distributions
thereon at the date of the redemption, payable in cash (the
"Redemption Price"). Holders will be given not less than 30 nor
more than 60 days' notice of such redemption.
(b) If fewer than all the outstanding Securities are
to be so redeemed, the Common Securities and the Preferred
Securities will be redeemed Pro Rata and the Preferred Securities
to be redeemed will be as described in Section 4(f)(ii) below.
(c) If, at any time, a Tax Event (as defined below)
shall occur and be continuing, at the option of the Sponsor,
within 90 days following the occurrence of such Tax Event, either
(i) the Regular Trustees may dissolve the Trust, and, after
satisfaction of creditors, cause Debentures held by the
Institutional Trustee, having an aggregate principal amount equal
to the aggregate stated liquidation amount of, with an interest
rate identical to the Coupon Rate of, and accrued and unpaid
interest equal to accrued and unpaid Distributions on, and having
the same record date for payment as the Trust Securities, to be
distributed to the Holders of the Securities in liquidation of
such Holders' interests in the Trust on a Pro Rata basis, or (ii)
the Debenture Issuer may, upon not less than 30 nor more than 60
days' notice, redeem the Debentures, in whole but not in part,
for cash, and, following such redemption, Securities with an
aggregate liquidation amount equal to the aggregate principal
amount of the Debentures so redeemed shall be redeemed by the
Trust at the Redemption Price on a Pro Rata basis; and provided,
however, further, that, if at the time there is available to the
Trust the opportunity to eliminate, within the 90 day period, the
Tax Event by taking some ministerial action, such as filing a
form or making an election, or pursuing some other similar
reasonable measure that has no adverse effect on the Trust, the
Debenture Issuer, the Sponsor or the Holders of the Securities
("Ministerial Action"), the Trust or the Debenture Issuer will
pursue such Ministerial Action in lieu of such dissolution and
distribution or redemption.
"Tax Event" means the receipt by the Sponsor of an
opinion of counsel to the effect that, as a result of (a) any
amendment to, clarification of or change (including any announced
prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, (b) any judicial
decision, official administrative pronouncement, ruling,
regulatory procedure, notice or announcement, including any
notice or announcement of intent to adopt such procedures or
regulations (an "Administrative Action") or (c) any amendment to,
clarification of, or change in the official position or the
interpretation of such Administrative Action or judicial decision
that differs from the theretofore generally accepted position, in
each case, by any legislative body, court, governmental authority
or regulatory body, irrespective of the manner in which such
amendment, clarification or change is made known, which
amendment, clarification, or change is effective or such
pronouncement or decision is announced, in each case, on or
after, the date of the original issuance of the Debentures
(including the enactment of any legislation and the publication
of any judicial decision or regulatory determination on or after
such date), there is more than an insubstantial risk that (i) the
Trust is or will be within 90 days of the date of such amendment,
clarification or change, subject to United States federal income
tax with respect to interest accrued or received on the
Debentures, (ii) the Trust is, or will be within 90 days of the
date of such amendment, clarification or change, subject to more
than a de minimis amount of taxes, duties or other governmental
charges, or (iii) interest payable by the Debenture Issuer to the
Trust on the Debentures is not, or within 90 days of the date of
such amendment, clarification or change will not be, deductible,
in whole or in part, by the Debenture Issuer for United States
federal income tax purposes.
On and from the date fixed by the Regular Trustees for
any distribution of Debentures and dissolution of the Trust:
(i) the Securities will be deemed to be no longer outstanding and
(ii) any certificates representing Securities will be deemed to
represent beneficial interests in the Debentures having an
aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to the
Coupon Rate of, and accrued and unpaid interest equal to accrued
and unpaid Distributions on, and having the same record date for
payment as such Securities until such certificates are presented
to the Debenture Issuer or its agent for transfer or reissue.
(d) The Trust may not redeem fewer than all the
outstanding Securities unless all accrued and unpaid
Distributions have been paid on all Securities for all quarterly
Distribution periods terminating on or before the date of
redemption.
(e) If the Debentures are distributed to holders of
the Securities, the Debenture Issuer will use all reasonable
efforts to have the Debentures listed on the New York Stock
Exchange or on such other exchange as the Preferred Securities
were listed immediately prior to the distribution of the
Debentures.
(f) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for the Securities (a
"Redemption/Distribution Notice"), will be given by the
Trust by mail to each Holder of Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption
of the Debentures. For purposes of the calculation of the
date of redemption or exchange and the dates on which
notices are given pursuant to this Section 4(f)(i), a
Redemption/ Distribution Notice shall be deemed to be given
on the day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder
appearing in the books and records of the Trust. No defect
in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with
respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed
shall be redeemed Pro Rata from each Holder of Preferred
Securities. The particular Preferred Securities to be
redeemed shall be selected on a Pro Rata basis not more than
60 days prior to the redemption date by the Institutional
Trustee from the outstanding Preferred Securities not
previously called for redemption, by such method as the
Institutional Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of
portions (equal to $25 or an integral multiple of $25 in
excess thereof) of the liquidation preference amount of
Preferred Securities of a denomination larger than $25. The
Institutional Trustee shall notify the Transfer Agent and
Registrar in writing of the Preferred Securities selected
for redemption, and in the case of any Preferred Securities
selected for partial redemption, the liquidation preference
amount thereof to be redeemed. For all purposes of the
Declaration, unless the context otherwise requires, all
provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, or to
the portion of the aggregate liquidation preference amount
of Preferred Securities which has been or is to be redeemed.
(iii) If Securities are to be redeemed and the
Trust gives a Redemption/Distribution Notice, then provided
that the Debenture Issuer has paid the Institutional Trustee
a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional
Trustee will pay the relevant Redemption Price to the
holders of such Securities by check mailed to the address of
the relevant Holders appearing on the books and records of
the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and
funds deposited as required, if applicable, then immediately
prior to the close of business on the date of such deposit,
or on the redemption date, as applicable, distributions will
cease to accrue on the Securities so called for redemption
and all rights of Holders of such Securities so called for
redemption will cease, except the right of the Holders of
such Securities to receive the Redemption Price, but without
interest on such Redemption Price. Neither the Regular
Trustees nor the Trust shall be required to register or
cause to be registered the transfer of any Securities that
have been so called for redemption. If any date fixed for
redemption of Securities is not a Business Day, then payment
of the Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay)
except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as
if made on such date fixed for redemption. If payment of
the Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the
Institutional Trustee or by the Sponsor as guarantor
pursuant to the relevant Securities Guarantee, Distributions
on such Securities will continue to accrue from the original
redemption date to the actual date of payment, in which case
the actual payment date will be considered the date fixed
for redemption for purposes of calculating the Redemption
Price.
(iv) Redemption/Distribution Notices shall be sent by
the Regular Trustees on behalf of the Trust to (A) in
respect of the Preferred Securities, to the Holder thereof,
and (B) in respect of the Common Securities to the Holder
thereof.
(v) Subject to the foregoing and applicable law
(including, without limitation, United States federal
securities laws), provided the acquiror is not the Holder of
the Common Securities or the obligor under the Indenture,
the Sponsor or any of its subsidiaries may at any time and
from time to time purchase outstanding Preferred Securities
by tender, in the open market or by private agreement.
5. VOTING RIGHTS - PREFERRED SECURITIES.
(a) Except as provided under Sections 5(b) and 7 and
as otherwise required by law and the Declaration, the Holders of
the Preferred Securities will have no voting rights.
(b) Subject to the requirements set forth in this
paragraph, the Holders of a majority in aggregate liquidation
amount of the Preferred Securities, voting separately as a class,
may direct the time, method, and place of conducting any
proceeding for any remedy available to the Institutional Trustee,
or exercising any trust or power conferred upon the Institutional
Trustee under the Declaration, including the right to direct the
Institutional Trustee, as holder of the Debentures, to (i)
exercise the remedies available under the Indenture of conducting
any proceeding for any remedy available to the Debenture Trustee,
or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waive any past
default and its consequences that is waivable under Section 813
of the Indenture, or (iii) exercise any right to rescind or annul
a declaration that the principal of all the Debentures shall be
due and payable. The Institutional Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders
of the Preferred Securities. Other than with respect to
directing the time, method and place of conducting any remedy
available to the Institutional Trustee or the Debenture Trustee
as set forth above, the Institutional Trustee shall not take any
action in accordance with the directions of the Holders of the
Preferred Securities under this paragraph unless the
Institutional Trustee has obtained an opinion of tax counsel to
the effect that for the purposes of United States federal income
tax the Trust will not be treated as an association taxable as a
corporation on account of such action. If an Event of Default
has occurred and is continuing and such event is attributable to
the failure of the Debenture Issuer to pay interest or principal
on the Debentures on the date such interest or principal is
otherwise payable (or in the case of redemption, on the
redemption date), then a holder of Preferred Securities may
directly institute a proceeding for enforcement of payment to
such Holder of the principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such holder (a "Direct
Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the rights of
the holders of the Common Securities Holder will be subrogated to
the rights of such holder of Preferred Securities to the extent
of any payment made by the Issuer to such holder of Preferred
Securities in such Direct Action. Except as provided in the
preceding sentences, the Holders of Preferred Securities will not
be able to exercise directly any other remedy available to the
holders of the Debentures.
Any approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of
Preferred Securities convened for such purpose, at a meeting of
all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to
vote, or of any matter upon which action by written consent of
such Holders is to be taken, to be mailed to each Holder of
record of Preferred Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of
proxies or consents.
No vote or consent of the Holders of the Preferred
Securities will be required for the Trust to redeem and cancel
Preferred Securities or to distribute the Debentures in
accordance with the Declaration and the terms of the Securities.
Notwithstanding that Holders of Preferred Securities
are entitled to vote or consent under any of the circumstances
described above, any of the Preferred Securities that are owned
by the Sponsor or any Affiliate of the Sponsor shall not be
entitled to vote or consent and shall, for purposes of such vote
or consent, be treated as if they were not outstanding.
6. VOTING RIGHTS - COMMON SECURITIES.
(a) Except as provided under Sections 6(b), (c), 7(a)
and 8 as otherwise required by law and the Declaration, the
Holders of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled,
in accordance with Article V of the Declaration, to vote to
appoint, remove or replace any Trustee or to increase or decrease
the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only
after the Event of Default with respect to the Preferred
Securities has been cured, waived, or otherwise eliminated and
subject to the requirements of the second to last sentence of
this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may
direct the time, method, and place of conducting any proceeding
for any remedy available to the Institutional Trustee, or
exercising any trust or power conferred upon the Institutional
Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or
power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that
is waivable under Section 713 of the Indenture, or (iii) exercise
any right to rescind or annul a declaration that the principal of
all the Debentures shall be due and payable. Pursuant to this
Section 6(c), the Institutional Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders
of the Preferred Securities. Other than with respect to
directing the time, method and place of conducting any remedy
available to the Institutional Trustee or the Debenture Trustee
as set forth above, the Institutional Trustee shall not take any
action in accordance with the directions of the Holders of the
Common Securities under this paragraph unless the Institutional
Trustee has obtained an opinion of tax counsel to the effect that
for the purposes of United States federal income tax the Trust
will not be treated as an association taxable as a corporation on
account of such action. If the Institutional Trustee fails to
enforce its rights under the Declaration, any Holder of Common
Securities may institute a legal proceeding directly against any
Person to enforce the Institutional Trustee's rights under the
Declaration, without first instituting a legal proceeding against
the Institutional Trustee or any other Person.
Any approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of
Common Securities convened for such purpose, at a meeting of all
of the Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting
at which Holders of Common Securities are entitled to vote, or of
any matter upon which action by written consent of such Holders
is to be taken, to be mailed to each Holder of record of Common
Securities. Each such notice will include a statement setting
forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is
sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Common
Securities will be required for the Trust to redeem and cancel
Common Securities or to distribute the Debentures in accordance
with the Declaration and the terms of the Securities.
7. AMENDMENTS TO DECLARATION AND INDENTURE.
(a) In addition to any requirements under Section 12.1
of the Declaration, if any proposed amendment to the Declaration
provides for, or the Regular Trustees otherwise propose to
effect, (i) any action that would adversely affect the powers,
preferences or special rights of the Securities in any material
respect, whether by way of amendment to the Declaration or
otherwise, or (ii) the dissolution, winding-up or termination of
the Trust, other than as described in Section 8.1 of the
Declaration, then the Holders of outstanding Securities voting
together as a single class, will be entitled to vote on such
amendment or proposal (but not on any other amendment or
proposal) and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a Majority in
liquidation amount of the Securities, affected thereby, provided,
however, that if any amendment or proposal referred to in clause
(i) above would so adversely affect only the Preferred Securities
or only the Common Securities, then only the affected class will
be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the
approval of a Majority in liquidation amount of such class of
Securities.
(b) In the event the consent of the Institutional
Trustee as the holder of the Debentures is required under the
Indenture with respect to any amendment, modification or
termination on the Indenture or the Debentures, the Institutional
Trustee shall request the written approval of the Holders of the
Securities with respect to such amendment, modification or
termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in
liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the
Indenture would require the consent of each holder of the
Debentures, the Institutional Trustee may only give such consent
with the approval of each Holder of outstanding Securities; and
provided, further, that, the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of
the Securities under this Section 7(b) unless the Institutional
Trustee has obtained an opinion of tax counsel to the effect that
for the purposes of United States federal income tax the Trust
will not be treated as an association taxable as a corporation on
account of such action.
8. PRO RATA.
A reference in these terms of the Securities to any
payment, distribution or treatment as being "Pro Rata" shall mean
pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder
in relation to the aggregate liquidation amount of all Securities
outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which
case any funds available to make such payment shall be paid first
to each Holder of the Preferred Securities pro rata according to
the aggregate liquidation amount of Preferred Securities held by
the relevant Holder relative to the aggregate liquidation amount
of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata
according to the aggregate liquidation amount of Common
Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Common Securities outstanding.
9. RANKING.
The Preferred Securities rank pari passu and payment
thereon shall be made Pro Rata with the Common Securities except
that, where an Event of Default occurs and is continuing, the
rights of Holders of the Common Securities and the rights of the
Sponsor or any Affiliate of the Sponsor, to the extent of their
beneficial ownership of Preferred Securities, to payment in
respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to
payment of other Holders of the Preferred Securities.
10. LISTING.
The Regular Trustees shall use all reasonable efforts
to cause the Preferred Securities to be listed for quotation on
the New York Stock Exchange.
11. ACCEPTANCE OF SECURITIES GUARANTEE AND INDENTURE.
Each Holder of Preferred Securities and Common
Securities, by the acceptance thereof, agrees to the provisions
of the Preferred Securities Guarantee, the Common Securities
Guarantee and the Indenture, respectively, including the
subordination provisions therein.
12. NO PREEMPTIVE RIGHTS.
The Holders of the Securities shall have no preemptive
rights to subscribe for any additional securities.
13. MISCELLANEOUS.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee or the Common Securities Guarantee
(as may be appropriate), and the Indenture to a Holder without
charge on written request to the Sponsor at its principal place
of business.
[PAGE BREAK]
Exhibit A-1
[PAGE BREAK]
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
This Preferred Security is a Global Certificate within
the meaning of the Declaration hereinafter referred to and is
registered in the name of The Depository Trust Company (the
"Depositary") or a nominee of the Depositary. This Preferred
Security is exchangeable for Preferred Securities registered in
the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Declaration
and no transfer of this Preferred Security (other than a transfer
of this Preferred Security as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Preferred Security is presented by an
authorized representative of The Depository Trust Company (55
Water Street, New York, New York) to the Trust or its agent for
registration of transfer, exchange or payment, and any Preferred
Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
CUSIP NO. ___________
Certificate Evidencing Preferred Securities
of
WASHINGTON WATER POWER CAPITAL II
____% Trust Originated Preferred Securities, Series B ("TOPrS ")
(liquidation amount $25 per Preferred Security)
WASHINGTON WATER POWER CAPITAL II, a statutory business
trust formed under the laws of the State of Delaware (the
"Trust"), hereby certifies that (the "Holder") is the
registered owner of preferred securities of the Trust
representing undivided beneficial interests in the assets of the
Trust designated the ____% Trust Originated Preferred
Securities, Series B (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities
are transferable on the books and records of the Trust, in person
or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities
represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration
of Trust of the Trust dated as of ______, 199_, as the same may
be amended from time to time (the "Declaration"), including the
designation of the terms of the Preferred Securities as set forth
in Annex I to the Declaration. Capitalized terms used herein but
not defined shall have the meaning given them in the Declaration.
The Holder is entitled to the benefits of the Preferred
Securities Guarantee to the extent provided therein. The Sponsor
will provide a copy of the Declaration, the Preferred Securities
Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound
by the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as
indebtedness and the Preferred Securities as evidence of indirect
beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this
certificate this ____ day of _______, 199_.
WASHINGTON WATER POWER CAPITAL II
By:
Name:
Title: Regular Trustee
[PAGE BREAK]
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will
be fixed at a rate per annum of ____% (the "Coupon Rate") of the
stated liquidation amount of $25 per Preferred Security, such
rate being the rate of interest payable on the Debentures to be
held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by
applicable law). The term "Distributions" as used herein
includes such cash distributions and any such interest payable
unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held
by the Institutional Trustee and to the extent the Institutional
Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any
full quarterly Distribution period on the basis of a 360-day year
of twelve 30-day months, and for any period shorter than a full
quarterly Distribution period for which Distributions are
computed, Distributions will be computed on the basis of the
actual number of days elapsed per 90-day quarter.
Except as otherwise described below, distributions on
the Preferred Securities will be cumulative, will accrue from the
date of original issuance and will be payable quarterly in
arrears, on March 31, June 30, September 30 and December 31 of
each year, commencing on ________ __, 199_, to ________ __, 20__,
to holders of record on the relevant record dates (as specified
in the Declaration) next preceding such payment dates, which
payment dates shall correspond to the interest payment dates on
the Debentures. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period
not exceeding 20 consecutive quarters (each an "Extension
Period") and as a consequence of such deferral, Distributions
will also be deferred, provided, however, that no Extension
Period shall last beyond the date of the maturity of the
Debentures. Despite such deferral, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted
by applicable law) at the Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further extend such
Extension Period; provided, however, that such Extension Period
together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the
maturity of the Debentures. Payments of accrued Distributions
will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end of
the Extension Period. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above
requirements.
The Preferred Securities shall be redeemable as
provided in the Declaration.
The Declaration and the Preferred Securities shall be
governed by and construed in accordance with the laws of the
State of Delaware, and all rights and remedies shall be governed
by such laws without regard to principles of conflict of laws.
[PAGE BREAK]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
______________________________________________________________
______________________________________________________________
______________________________________________________________
(Insert assignee's social security or tax identification number)
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
______________________________________________________________
______________________________________________________________
__________________________________________________________ agent
to transfer this Preferred Security Certificate on the books of
the Trust. The agent may substitute another to act for him or
her.
Date:________________________
Signature:__________________
(Sign exactly as your name appears on the other side of this Preferred
Security Certificate)
Signature Guarantee: ________________________________
* ignature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or partici-
pation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may
be determined by the Registrar in addition to, or in substi-
tution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
[PAGE BREAK]
Exhibit A-2
[PAGE BREAK]
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
WASHINGTON WATER POWER CAPITAL II
____% Trust Originated Common Securities, Series B
(liquidation amount $25 per Common Security)
WASHINGTON WATER POWER CAPITAL II, a statutory business
trust formed under the laws of the State of Delaware (the
"Trust"), hereby certifies that The Washington Water Power
Company (the "Holder") is the registered owner of common
securities of the Trust representing undivided beneficial
interests in the assets of the Trust designated the ____% Trust
Originated Common Securities, Series B (liquidation amount $25
per Common Security) (the "Common Securities"). The Common
Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all
respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of ________, 199_, as
the same may be amended from time to time (the "Declaration"),
including the designation of the terms of the Common Securities
as set forth in Annex I to the Declaration. Capitalized terms
used herein but not defined shall have the meaning given them in
the Declaration. The Holder is entitled to the benefits of the
Common Securities Guarantee to the extent provided therein. The
Sponsor will provide a copy of the Declaration, the Common
Securities Guarantee and the Indenture to a Holder without charge
upon written request to the Sponsor at its principal place of
business.
Upon receipt of this certificate, the Sponsor is bound
by the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as
indebtedness and the Common Securities as evidence of indirect
beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this
certificate this ___ day of _____________, 199_.
WASHINGTON WATER POWER CAPITAL II
By:__________________________
Name:
Title: Regular Trustee
[PAGE BREAK]
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be
fixed at a rate per annum of ____% (the "Coupon Rate") of the
stated liquidation amount of $25 per Common Security, such rate
being the rate of interest payable on the Debentures to be held
by the Institutional Trustee. Distributions in arrears for more
than one quarter will bear interest thereon compounded quarterly
at the Coupon Rate (to the extent permitted by applicable law).
The term "Distributions" as used herein includes such cash
distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. The amount of Distributions
payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number
of days elapsed per 90-day quarter.
Except as otherwise described below, distributions on
the Common Securities will be cumulative, will accrue from the
date of original issuance and will be payable quarterly in
arrears, on March 31, June 30, September 30 and December 31 of
each year, commencing on ________ __, 199_, to ________ __, 20__,
to Holders of record on the relevant record dates (as specified
in the Declaration) next preceding such payment dates, which
payment dates shall correspond to the interest payment dates on
the Debentures. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period
not exceeding 20 consecutive quarters (each an "Extension
Period") and as a consequence of such deferral, Distributions
will also be deferred; provided, however, that no Extension
Period shall last beyond the date of the maturity of the
Debentures. Despite such deferral, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted
by applicable law) at the Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further extend such
Extension Period; provided, however, that such Extension Period
together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the
maturity date of the Debentures. Payments of accrued
Distributions will be payable to Holders as they appear on the
books and records of the Trust on the first record date after the
end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to
the above requirements.
The Common Securities shall be redeemable as provided
in the Declaration.
The Declaration and the Common Securities shall be
governed by and construed in accordance with the laws of the
State of Delaware, and all rights and remedies shall be governed
by such laws without regard to principles of conflict of laws.
[PAGE BREAK]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Common Security Certificate to:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints ______________________________________
_______________________________________________________________
______________________________________________agent to transfer
this Common Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:____________________
Signature:_______________
(Sign exactly as your name appears on the other side of this Common
Security Certificate)
Signature Guarantee:* _____________________________________
* Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or partici-
pation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may
be determined by the Registrar in addition to, or in substi-
tution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
EXHIBIT 4(a)-9
=====================================
AMENDED AND RESTATED DECLARATION
OF TRUST
WASHINGTON WATER POWER CAPITAL III
Dated as of ________, 199_
========================================
[PAGE BREAK]
TABLE OF CONTENTS
------------------
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . -2-
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . -7-
SECTION 2.2 Lists of Holders of Securities . . . . . -8-
SECTION 2.3 Reports by the Institutional Trustee . . -8-
SECTION 2.4 Periodic Reports to Institutional
Trustee . . . . . . . . . . . . . . . . . -9-
SECTION 2.5 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . -9-
SECTION 2.6 Events of Default; Waiver . . . . . . . . -9-
SECTION 2.7 Notice of Event of Default . . . . . . -10-
ARTICLE III
ORGANIZATION
SECTION 3.1 Name . . . . . . . . . . . . . . . . . -11-
SECTION 3.2 Office . . . . . . . . . . . . . . . . -11-
SECTION 3.3 Purpose . . . . . . . . . . . . . . . . -11-
SECTION 3.4 Authority . . . . . . . . . . . . . . . -11-
SECTION 3.5 Title to Property of the Trust . . . . -12-
SECTION 3.6 Powers and Duties of the Regular
Trustees . . . . . . . . . . . . . . . -12-
SECTION 3.7 Prohibition of Actions by the Trust and
the Trustees . . . . . . . . . . . . . -15-
SECTION 3.8 Powers and Duties of the Institutional
Trustee . . . . . . . . . . . . . . . . -16-
SECTION 3.9 Certain Duties and Responsibilities. . -18-
SECTION 3.10 Certain Rights of Institutional Trustee -21-
SECTION 3.11 Delaware Trustee . . . . . . . . . . . -24-
SECTION 3.12 Execution of Documents . . . . . . . . -24-
SECTION 3.13 Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . -24-
SECTION 3.14 Duration of Trust . . . . . . . . . . . -24-
SECTION 3.15 Mergers . . . . . . . . . . . . . . . . -25-
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities -27-
SECTION 4.2 Responsibilities of the Sponsor . . . . -27-
[PAGE BREAK]
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees . . . . . . . . . . -28-
SECTION 5.2 Delaware Trustee . . . . . . . . . . . -29-
SECTION 5.3 Institutional Trustee; Eligibility . . -29-
SECTION 5.4 Certain Qualifications of Regular
Trustees and Delaware Trustee Generally -30-
SECTION 5.5 Regular Trustees . . . . . . . . . . . -31-
SECTION 5.6 Delaware Trustee. . . . . . . . . . . . -31-
SECTION 5.7 Appointment, Removal and Resignation of
Trustees. . . . . . . . . . . . . . . . -31-
SECTION 5.8 Vacancies among Trustees . . . . . . . -33-
SECTION 5.9 Effect of Vacancies . . . . . . . . . . -33-
SECTION 5.10 Meetings. . . . . . . . . . . . . . . . -33-
SECTION 5.11 Delegation of Power . . . . . . . . . . -34-
Section 5.12 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . -34-
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions . . . . . . . . . . . . . -34-
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities -35-
SECTION 7.2 Paying Agent . . . . . . . . . . . . . -36-
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust . . . . . . . . . -36-
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities . . . . . . . . -37-
SECTION 9.2 Transfer of Certificates . . . . . . . -38-
SECTION 9.3 Deemed Security Holders . . . . . . . . -39-
SECTION 9.4 Preferred Security Certificates . . . . -39-
SECTION 9.5 Mutilated, Destroyed, Lost or Stolen
Certificates . . . . . . . . . . . . . -39-
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability . . . . . . . . . . . . . . . -40-
SECTION 10.2 Exculpation . . . . . . . . . . . . . . -40-
SECTION 10.3 Fiduciary Duty . . . . . . . . . . . . -41-
SECTION 10.4 Indemnification . . . . . . . . . . . . -42-
SECTION 10.5 Outside Businesses . . . . . . . . . . -45-
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year . . . . . . . . . . . . . . -46-
SECTION 11.2 Certain Accounting Matters . . . . . . -46-
SECTION 11.3 Banking . . . . . . . . . . . . . . . . -47-
SECTION 11.4 Withholding . . . . . . . . . . . . . . -47-
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments . . . . . . . . . . . . . . -48-
SECTION 12.2 Meetings of the Holders of Securities;
Action by Written Consent . . . . . . . -50-
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of
Institutional Trustee . . . . . . . . . -52-
SECTION 13.2 Representations and Warranties of
Delaware Trustee . . . . . . . . . . . -52-
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices. . . . . . . . . . . . . . . . -53-
SECTION 14.2 Governing Law . . . . . . . . . . . . . -55-
SECTION 14.3 Intention of the Parties . . . . . . . -55-
SECTION 14.4 Headings . . . . . . . . . . . . . . . -55-
SECTION 14.5 Successors and Assigns . . . . . . . . -55-
SECTION 14.6 Partial Enforceability . . . . . . . . -55-
SECTION 14.7 Counterparts . . . . . . . . . . . . . -55-
ANNEX I TERMS OF SECURITIES . . . . . . . . . . . . . I-1
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE . . . A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE . . . . A2-1
[PAGE BREAK]
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
------------------- ------------
310(a) . . . . . . . . . . . . . . . . . . . . 5.3(a)
310(b) . . . . . . . . . . . . . . . . . . . 5.3(c)
310(c) . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(b) . .. . . . . . . . . .. .. . . .. . . 2.2(b)
311(c) . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313 . . . . . . . . . . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . . . . . . . . . . . 2.4
314(b) . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . 2.5
314(d) . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . 1.1 (Definition
of Officer's Certificate)
314(f) . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . ... . . . . . . . 3.9(a)
315(b) . . . . . . . . . . . .. . . . . .. . . . . 2.7
315(c) . . . . . . . . . . . . . . . . . . . . . . 3.9(b)
315(d) . . . . . . . . . . . . . . . . . . . . . . 3.9(c)
316(a) . . . . . . . . . . . . . . . . . . . . 2.6; Annex I,
Section 5
316(c) . . . . . . . . . . . . . . . . . . . .. . 3.6(e)
317(a) . . . . . . . . . . . . . . . . . . . . . . 3.8(h)
317(b) . . .. . . . . .. . . . . . . . . . . . . 3.8(i)
318 . .. . . . . . . . . . . . . . . . . . . . . .. 2.1
--------------------
* This Cross-Reference Table does not constitute part of the
Declaration and shall not affect the interpretation of any
of its terms or provisions.
[PAGE BREAK]
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
WASHINGTON WATER POWER CAPITAL III
_________, 199_
AMENDED AND RESTATED DECLARATION OF TRUST
("Declaration") dated and effective as of _________, 199_, by the
Trustees (as defined herein), the Sponsor (as defined herein) and
by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established
Washington Water Power Capital III (the "Trust"), a trust under
the Delaware Business Trust Act pursuant to a Declaration of
Trust dated as of November 4, 1996 (the "Original Declaration"),
and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on November 4, 1996, for the sole purpose
of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Debentures of the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the
Trust have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision
of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties
hereto to continue the Trust as a business trust under the
Business Trust Act and that this Declaration constitute the
governing instrument of such business trust, the Trustees declare
that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the
assets of the Trust issued hereunder, subject to the provisions
of this Declaration.
[PAGE BREAK]
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 DEFINITIONS.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has
the same meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Declaration as modified,
supplemented or amended from time to time;
(d) all references in this Declaration to Articles and
Sections and Annexes and Exhibits are to Articles and
Sections of and Annexes and Exhibits to this Declaration
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Declaration unless otherwise
defined in this Declaration or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural
and vice versa.
"AFFILIATE" has the same meaning as given to that term
in Rule 405 of the Securities Act or any successor rule
thereunder.
"AGENT" means any Paying Agent.
"AUTHORIZED OFFICER" of a Person means any Person that
is authorized to legally bind such Person.
"BUSINESS DAY" means any day other than Saturday,
Sunday or any other day on which banking institutions in the City
of Wilmington, Delaware and The City of New York are authorized
or required by any applicable law to close.
"BUSINESS TRUST ACT" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code 3801 et seq., as it may
be amended from time to time, or any successor legislation.
"CERTIFICATE" means a Common Security Certificate or a
Preferred Security Certificate.
"CLOSING DATE" means the "CLOSING TIME" and each "DATE
OF DELIVERY" under the Underwriting Agreement.
"CODE" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor legislation.
"COMMISSION" means the Securities and Exchange
Commission.
"COMMON SECURITIES" has the meaning specified in
Section 7.1.(a).
"COMMON SECURITIES GUARANTEE" means the guarantee
agreement to be dated as of ________, 199_ of the Sponsor in
respect of the Common Securities.
"COMMON SECURITY CERTIFICATE" means a certificate in
fully registered form representing a Common Security
substantially in the form of Exhibit A-2.
"COMPANY INDEMNIFIED PERSON" means (a) any Regular
Trustee; (b) any Affiliate of any Regular Trustee; (c) any
officers, directors, shareholders, members, partners, employees,
representatives or agents of any Regular Trustee; or (d) any
officer, employee or agent of the Trust or its Affiliates.
"CORPORATE TRUST OFFICE" means the office of the
Institutional Trustee at which the corporate trust business of
the Institutional Trustee shall, at any particular time, be
principally administered, which office at the date of execution
of this Agreement is located at Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890.
"COVERED PERSON" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent
of (i) the Trust or (ii) the Trust's Affiliates; and (b) any
Holder of Securities.
"DEBENTURE ISSUER" means The Washington Water Power
Company, a Washington corporation, or any successor entity
resulting from any consolidation, amalgamation, merger or other
business combination, in its capacity as issuer of the Debentures
under the Indenture.
"DEBENTURE TRUSTEE" means Wilmington Trust Company, a
Delaware banking corporation, as trustee under the Indenture
until a successor is appointed thereunder, and thereafter means
such successor trustee.
"DEBENTURES" means the series of Debentures to be
issued by the Debenture Issuer under the Indenture to be held by
the Institutional Trustee.
"DELAWARE TRUSTEE" has the meaning set forth in Section
5.2.
"DEPOSITARY" has the meaning set forth in Section 9.1.
"DISTRIBUTION" means a distribution payable to Holders
of Securities in accordance with Section 6.1.
"EVENT OF DEFAULT", in respect of the Securities, means
an Event of Default as defined in the Indenture, so long as the
same shall be continuing under the Indenture.
"EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended from time to time, or any successor legislation.
"FIDUCIARY INDEMNIFIED PERSON" has the meaning set
forth in Section 10.4(b).
"HOLDER" means a Person in whose name a Certificate
representing a Security is registered, such Person being a
beneficial owner within the meaning of the Business Trust Act.
"INDEMNIFIED PERSON" means a Company Indemnified Person
or a Fiduciary Indemnified Person.
"INDENTURE" means the Indenture dated as of _______ 1,
199_, between the Debenture Issuer and the Debenture Trustee, as
supplemented.
"INSTITUTIONAL TRUSTEE" has the meaning set forth in
Section 5.3.
"INSTITUTIONAL TRUSTEE ACCOUNT" has the meaning set
forth in Section 3.8(c)(i).
"INVESTMENT COMPANY" means an investment company as
defined in the Investment Company Act.
"INVESTMENT COMPANY ACT" means the Investment Company
Act of 1940, as amended from time to time, or any successor
legislation.
"LEGAL ACTION" has the meaning set forth in Section
3.6(g).
"MAJORITY IN LIQUIDATION AMOUNT OF THE SECURITIES"
means, except as provided in the terms of the Preferred
Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities voting together as a single class or, as
the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting
separately as a class, who are the record owners of more than 50%
of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities
of the relevant class.
"MINISTERIAL ACTION" has the meaning set forth in the
terms of the Securities as set forth in Annex I.
"OFFICER'S CERTIFICATE" means, with respect to any
Person, a certificate signed by an Authorized Officer of such
Person. Any Officer's Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Declaration shall include:
(a) a statement that each officer signing the Officers'
Certificate has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation upon which the statements contained
in such Officer's Certificate are based;
(c) a statement that, in the opinion of such officer, such
officer has made such examination or investigation as is
necessary to enable such officer 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 such
officer, such condition or covenant has been complied with.
"PAYING AGENT" has the meaning specified in Section
7.2.
"PERSON" means a legal person, including any
individual, corporation, estate, partnership, joint venture,
association, joint stock company, limited liability company,
trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"PREFERRED SECURITIES" has the meaning specified in
Section 7.1(a).
"PREFERRED SECURITIES GUARANTEE" means the guarantee
agreement to be dated as of ________, 199_, of the Sponsor in
respect of the Preferred Securities.
"PREFERRED SECURITY CERTIFICATE" means a certificate
representing a Preferred Security substantially in the form of
Exhibit A-1.
"QUORUM" means a majority of the Regular Trustees or,
if there are only two Regular Trustees, both of them.
"REGISTRAR" means the registrar for the Preferred
Securities appointed by the Trust and shall initially be
Wilmington Trust Company.
"REGULAR TRUSTEE" has the meaning set forth in Section
5.1.
"RELATED PARTY" means, with respect to the Sponsor, any
direct or indirect wholly owned subsidiary of the Sponsor or any
other Person that owns, directly or indirectly, 100% of the
outstanding voting securities of the Sponsor.
"RESPONSIBLE OFFICER" means, with respect to the
Institutional Trustee, any officer of the Institutional Trustee
assigned by the Institutional Trustee to administer its corporate
trust matters.
"RULE 3A-5" means Rule 3a-5 under the Investment
Company Act, or any successor rule or regulation.
"SECURITIES" means the Common Securities and the
Preferred Securities.
"SECURITIES ACT" means the Securities Act of 1933, as
amended from time to time, or any successor legislation.
"SECURITIES GUARANTEES" means the Common Securities
Guarantee and the Preferred Securities Guarantee.
"SPONSOR" means The Washington Water Power Company, a
Washington corporation, or any successor entity resulting from
any consolidation, amalgamation, merger or other business
combination, in its capacity as sponsor of the Trust.
"TAX EVENT" has the meaning set forth in Annex I
hereto.
"10% IN LIQUIDATION AMOUNT OF THE SECURITIES" means,
except as provided in the terms of the Preferred Securities or by
the Trust Indenture Act, Holder(s) of outstanding Securities
voting together as a single class or, as the context may require,
Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who
are the record owners of 10% or more of the aggregate liquidation
amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"TRANSFER AGENT" means the transfer agent for the
Preferred Securities appointed by the Trust and shall initially
be Wilmington Trust Company.
"TREASURY REGULATIONS" means the income tax
regulations, including temporary and proposed regulations,
promulgated under the Code by the United States Treasury, as such
regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"TRUSTEE" or "TRUSTEES" means each Person who has
signed this Declaration as a trustee, so long as such Person
shall continue in office in accordance with the terms hereof, and
all other Persons who may from time to time be duly appointed,
qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the
Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
"TRUST INDENTURE ACT" means the Trust Indenture Act of
1939, as amended from time to time, or any successor legislation.
"TRUST PROPERTY" means (i) the Debentures, (ii) any
cash or deposit in, or owing to, the Institutional Trustee
Account and (iii) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being
held by the Institutional Trustee pursuant to the trusts of this
Declaration.
"UNDERWRITING AGREEMENT" means the Underwriting
Agreement for the offering and sale of Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Declaration is subject to the provisions of
the Trust Indenture Act that are required to be part of this
Declaration and shall, to the extent applicable, be governed by
such provisions.
(b) The Institutional Trustee shall be the only
Trustee which is a Trustee for the purposes of the Trust
Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties
imposed by 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as
equity securities representing undivided beneficial interests in
the assets of the Trust.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES.
(a) Each of the Sponsor and the Regular Trustees on
behalf of the Trust shall provide the Institutional Trustee (i)
within 14 days after each record date for payment of
Distributions, a list, in such form as the Institutional Trustee
may reasonably require, of the names and addresses of the Holders
of the Securities ("LIST OF HOLDERS") as of such record date;
provided, however, that neither the Sponsor nor the Regular
Trustees on behalf of the Trust shall be obligated to provide
such List of Holders at any time the List of Holders does not
differ from the most recent List of Holders given to the
Institutional Trustee by the Sponsor and the Regular Trustees on
behalf of the Trust; and provided, further, that in any event
such List of Holders will be provided to the Institutional
Trustee not less than once every 6 months pursuant to this
Section 2.2(a)(i), and (ii) at any other time, within 30 days of
receipt by the Trust of a written request for a List of Holders
as of a date no more than 14 days before such List of Holders is
given to the Institutional Trustee. The Institutional Trustee
shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given
to it or which it receives in the capacity as Paying Agent (if
acting in such capacity) provided, however, that the
Institutional Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its
obligations under 311(a), 311(b) and 312(b) of
the Trust Indenture Act.
SECTION 2.3 REPORTS BY THE INSTITUTIONAL TRUSTEE.
Within 60 days after May 15 of each year, the
Institutional Trustee shall provide to the Holders of the
Preferred Securities such reports as are required by
313 of the Trust Indenture Act, if any, in the form and in the
manner provided by 313 of the Trust Indenture Act. The
Institutional Trustee shall also comply with the requirements of
313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS TO INSTITUTIONAL TRUSTEE.
Each of the Sponsor and the Regular Trustees on behalf
of the Trust shall provide to the Institutional Trustee such
documents, reports and information as required by 314
(if any) and the compliance certificate required by 314
of the Trust Indenture Act in the form, in the manner and at the
times required by 314 of the Trust Indenture Act.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Regular Trustees on behalf
of the Trust shall provide to the Institutional Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Declaration that relate to any of the
matters set forth in 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer
pursuant to 314(c)(1) may be given in the form of an
Officer's Certificate.
SECTION 2.6 EVENTS OF DEFAULT; WAIVER.
(a) The Holders of a Majority in liquidation amount of
Preferred Securities may, by vote, on behalf of the Holders of
all of the Preferred Securities, waive any past Event of Default
in respect of the Preferred Securities and its consequences;
provided, however, that if the underlying Event of Default under
the Indenture is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be waivable.
Upon such waiver, any such default shall cease to
exist, and any Event of Default with respect to the Preferred
Securities arising therefrom shall be deemed to have been cured,
for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or an Event of Default
with respect to the Preferred Securities or impair any right
consequent thereon. Any waiver by the Holders of the Preferred
Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the
Holders of the Common Securities of any such Event of Default
with respect to the Common Securities for all purposes of this
Declaration without any further act, vote, or consent of the
Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of
the Common Securities may, by vote, on behalf of the Holders of
all of the Common Securities, waive any past Event of Default
with respect to the Common Securities and its consequences;
provided, however, that if the underlying Event of Default under
the Indenture is not waivable under the Indenture, except where
the Holders of the Common Securities are deemed to have waived
such Event of Default under the Declaration as provided below in
this Section 2.6(b), the Event of Default under the Declaration
shall also not be waivable; and
provided, further, that, each Holder of Common Securities will be
deemed to have waived any such Event of Default and all Events of
Default with respect to the Common Securities and its
consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so cured,
waived or otherwise eliminated, the Institutional Trustee will be
deemed to be acting solely on behalf of the Holders of the
Preferred Securities and only the Holders of the Preferred
Securities will have the right to direct the Institutional
Trustee in accordance with the terms of the Securities. Subject
to the foregoing provisions of this Section 2.6(b), upon such
waiver, any such default shall cease to exist and any Event of
Default with respect to the Common Securities arising therefrom
shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the
Indenture by the Institutional Trustee at the direction of the
Holders of the Preferred Securities shall constitute a waiver of
the corresponding Event of Default under this Declaration.
SECTION 2.7 NOTICE OF EVENT OF DEFAULT.
The Institutional Trustee shall give notice of any
default hereunder to the Holders of Securities 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 hereunder arising out of
a default of the character specified in Section 701(c) of the
Indenture, 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
3.9, the Institutional Trustee shall not be deemed to have
knowledge of such default unless either (i) a Responsible Officer
of the Institutional Trustee shall have actual knowledge of such
default or (ii) the Institutional Trustee shall have received
written notice thereof from the Debenture Issuer, the Sponsor,
any Regular Trustee 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.
ARTICLE III
ORGANIZATION
SECTION 3.1 NAME.
The Trust is named "WASHINGTON WATER POWER CAPITAL
III," as such name may be modified from time to time by the
Regular Trustees following written notice to the Holders of
Securities. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the
Regular Trustees.
SECTION 3.2 OFFICE.
The address of the principal office of the Trust is c/o
The Washington Water Power Company, 1411 East Mission Avenue,
Spokane, Washington 99202. On ten Business Days' written notice
to the Holders of Securities, the Regular Trustees may designate
another principal office.
SECTION 3.3 PURPOSE.
The exclusive purposes and functions of the Trust are
(a) to issue and sell Securities and use the proceeds from such
sale to acquire the Debentures, and (b) except as otherwise
limited herein, to engage in only those other activities
necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments,
pledge any of its assets, or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust to be treated
for United States federal income tax purposes as an association
taxable as a corporation.
SECTION 3.4 AUTHORITY.
Subject to the limitations provided in this Declaration
and to the specific duties of the Institutional Trustee, the
Regular Trustees shall have exclusive and complete authority to
carry out the purposes of the Trust. An action taken by the
Regular Trustees in accordance with their powers shall constitute
the act of and serve to bind the Trust and an action taken by the
Institutional Trustee on behalf of the Trust in accordance with
its powers shall constitute the act of and serve to bind the
Trust. In dealing with the Trustees acting on behalf of the
Trust, no person shall be required to inquire into the authority
of the Trustees to bind the Trust. Persons dealing with the
Trust are entitled to rely conclusively on the power and
authority of the Trustees as set forth in this Declaration.
SECTION 3.5 TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the
Debentures and the Institutional Trustee Account or as otherwise
provided in this Declaration, legal title to all assets of the
Trust shall be vested in the Trust. The Holders shall not have
legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
SECTION 3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES.
The Regular Trustees shall have the exclusive power,
duty and authority to cause the Trust to engage in the following
activities:
(a) to issue and sell the Preferred Securities and the
Common Securities in accordance with this Declaration; provided,
however, that, the Trust may issue no more than one series of
Preferred Securities and no more than one series of Common
Securities and, provided further, that there shall be no
interests in the Trust other than the Securities, and the
issuance of Securities shall be limited to a simultaneous
issuance of both Preferred Securities and Common Securities on
each Closing Date;
(b) in connection with the issuance and sale of the
Preferred Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the
registration statement on Form S-3 prepared by the Sponsor,
including any amendments thereto, pertaining to the
Preferred Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any state in which the Sponsor has
determined to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application, prepared by
the Sponsor, to The New York Stock Exchange, Inc. or any
other national stock exchange or the Nasdaq Stock Market's
National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor, relating to the
registration of the Preferred Securities under Section 12(b)
of the Exchange Act; and
(v) execute and enter into the Underwriting Agreement
providing for the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the
sale of the Preferred Securities and the Common Securities;
provided, however, that the Regular Trustees shall cause the
Debentures to be registered in the name of the Institutional
Trustee as a Trustee hereunder;
(d) to give the Sponsor and the Institutional Trustee
prompt written notice of the occurrence of a Tax Event; provided,
however, that the Regular Trustees shall consult with the Sponsor
and the Institutional Trustee before taking or refraining from
taking any Ministerial Action in relation to a Tax Event;
(e) to establish a record date with respect to all
actions to be taken hereunder that require a record date be
established, including and with respect to, for the purposes of
316(c) of the Trust Indenture Act, Distributions, voting
rights, redemptions and exchanges, and to issue relevant notices
to the Holders of Preferred Securities and Holders of Common
Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may
be required of the Regular Trustees pursuant to the terms of the
Securities;
(g) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise adjust claims or
demands of or against the Trust ("LEGAL ACTION"), unless pursuant
to Section 3.8(e), the Institutional Trustee has the exclusive
power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and managers,
contractors, advisors, and consultants and pay reasonable
compensation for such services;
(i) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(j) to give the certificate required by
314(a)(4) of the Trust Indenture Act to the Institutional
Trustee, which certificate may be executed by any Regular
Trustee;
(k) to incur expenses that are necessary or incidental
to carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as,
Registrar and Transfer Agent for the Securities or to appoint a
Paying Agent for the Securities as provided in Section 7.2;
(m) to give prompt written notice to the Holders of
the Securities of any notice received from the Debenture Issuer
of its election to defer payments of interest on the Debentures
by extending the interest payment period under the Indenture;
(n) to execute all documents or instruments, perform
all duties and powers, and do all things for and on behalf of the
Trust in all matters necessary or incidental to the foregoing;
(o) to take all action that may be necessary or
appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges as a
statutory business trust under the laws of the State of Delaware
and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the
Preferred Securities or to enable the Trust to effect the
purposes for which the Trust was created;
(p) to take any action, not inconsistent with this
Declaration or with applicable law, that the Regular Trustees
determine in their discretion to be necessary or desirable in
carrying out the activities of the Trust as set out in this
Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(ii) causing the Trust not to be treated for United
States federal income tax purposes as an association taxable
as a corporation; and
(iii) cooperating with the Debenture Issuer to
ensure that the Debentures will be treated as indebtedness
of the Debenture Issuer for United States federal income tax
purposes;
provided, however, that such action does not materially and
adversely affect the interests of Holders; and
(q) to take all action necessary to cause all
applicable tax returns and tax information reports that are
required to be filed with respect to the Trust to be duly
prepared and filed by the Regular Trustees, on behalf of the
Trust.
The Regular Trustees must exercise the powers set forth
in this Section 3.6 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3, and
the Regular Trustees shall not take any action that is
inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall
have none of the powers or the authority of the Institutional
Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant
to this Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE
TRUSTEES.
The Trust shall not, and the Trustees (including the
Institutional Trustee) shall not, engage in any activity other
than as required or authorized by this Declaration. In
particular, the Trust shall not and the Trustees (including the
Institutional Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such
proceeds to Holders of Securities pursuant to the terms of
this Declaration and of the Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness other
than loans represented by the Debentures;
(v) possess any power or otherwise act in such a way
as to vary the Trust assets or the terms of the Securities
in any way whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the
Trust other than the Securities; or
(vii) other than as provided in this Declaration or
Annex I, (A) direct the time, method and place of exercising
any trust or power conferred upon the Debenture Trustee with
respect to the Debentures, (B) waive any past default that
is waivable under the Indenture, (C) exercise any right to
rescind or annul any declaration that the principal of all
the Debentures shall be immediately due and payable, or (D)
consent to any amendment, modification or termination of the
Indenture or the Debentures where such consent shall be
required unless the Trust shall have received an opinion of
counsel to the effect that such modification will not cause
more than an insubstantial risk that for United States
federal income tax purposes the Trust will be treated as an
association taxable as a corporation.
SECTION 3.8 POWERS AND DUTIES OF THE INSTITUTIONAL TRUSTEE.
(a) The legal title to the Debentures shall be owned
by and held of record in the name of the Institutional Trustee in
trust for the benefit of the Holders of the Securities. The
right, title and interest of the Institutional Trustee to the
Debentures shall vest automatically in each Person who may
hereafter be appointed as Institutional Trustee in accordance
with Section 5.7. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with regard to
the Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its
right, title and interest in the Debentures to the Regular
Trustees or to the Delaware Trustee (it being understood,
however, that the entity acting as Institutional Trustee may also
act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "INSTITUTIONAL TRUSTEE ACCOUNT")
in the name of and under the exclusive control of the
Institutional Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments of funds made
in respect of the Debentures held by the Institutional
Trustee, deposit such funds into the Institutional Trustee
Account and make payments to the Holders of the Securities
from the Institutional Trustee Account in accordance with
Section 6.1. Funds in the Institutional Trustee Account
shall be held uninvested until disbursed in accordance with
this Declaration. The Institutional Trustee Account shall
be an account that is maintained with a banking institution
the rating on whose long-term unsecured indebtedness is at
least equal to the rating assigned to the Preferred
Securities by a nationally recognized statistical rating
organization, within the meaning of Rule 436(g)(2) under the
Securities Act or any successor rule or regulation;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the
Preferred Securities and the Common Securities to the extent
the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by
the Regular Trustees in accordance with the terms of the
Securities, engage in such ministerial activities as shall
be necessary or appropriate to effect the distribution of
the Debentures to Holders of Securities upon the occurrence
of certain special events (as may be defined in the terms of
the Securities) arising from a change in law or a change in
legal interpretation or other specified circumstances
pursuant to the terms of the Securities.
(d) The Institutional Trustee shall take all actions
and perform all duties that may be specifically required of the
Institutional Trustee pursuant to the terms of the Securities.
(e) The Institutional Trustee shall take any Legal
Action which arises out of or in connection with an Event of
Default of which a Responsible Officer of the Institutional
Trustee has actual knowledge or the Institutional Trustee's
duties and obligations under this Declaration or the Trust
Indenture Act, and if such Institutional Trustee shall have
failed to take such Legal Action, the Holders of the Preferred
Securities may take such Legal Action, to the same extent as if
such Holders of Preferred Securities held a principal amount of
Debentures equal to the liquidation amount of such Preferred
Securities, without first proceeding against the Institutional
Trustee or the Trust; provided, however, that if an Event of
Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay
interest or principal on the Debentures on the date such interest
or principal is otherwise payable (or in the case of redemption,
on the redemption date), then a Holder of Preferred Securities
may directly institute a proceeding for enforcement of payment to
such Holder of the principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such Holder (a "DIRECT
ACTION") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the rights of
the Holders of the Common Securities will be subrogated to the
rights of such Holder of Preferred Securities to the extent of
any payment made by the Issuer to such Holder of Preferred
Securities in such Direct Action. Except as provided in the
preceding sentences, the Holders of Preferred Securities will not
be able to exercise directly any other remedy available to the
holders of the Debentures.
(f) The Institutional Trustee shall not resign as a
Trustee unless either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of
Securities pursuant to the terms of the Securities; or
(ii) a Successor Institutional Trustee has been
appointed and has accepted that appointment in accordance
with Section 5.7.
(g) The Institutional Trustee shall have the legal
power to exercise all of the rights, powers and privileges of a
holder of Debentures under the Indenture and, if an Event of
Default actually known to a Responsible Officer of the
Institutional Trustee occurs and is continuing, the Institutional
Trustee shall, for the benefit of Holders of the Securities,
enforce its rights as holder of the Debentures subject to the
rights of the Holders pursuant to the terms of such Securities.
(h) The Institutional Trustee shall be authorized to
undertake all actions set forth in 317(a) of the Trust
Indenture Act.
(i) The Institutional Trustee may, with the consent of
the Regular Trustees, authorize one or more Persons (each, a
"PAYING AGENT") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all
securities and any such Paying Agent shall comply with
317(b) of the Trust Indenture Act. Any Paying Agent may be
removed by the Institutional Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any
time by the Institutional Trustee.
(j) Subject to this Section 3.8, the Institutional
Trustee shall have none of the duties, liabilities, powers or the
authority of the Regular Trustees set forth in Section 3.6.
The Institutional Trustee must exercise the powers set
forth in this Section 3.8 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3, and
the Institutional Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust set out
in Section 3.3.
SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Institutional Trustee, before the occurrence
of any Event of Default and after the curing of all Events of
Default that may have occurred, shall undertake to perform only
such duties as are specifically set forth in this Declaration and
in the terms of the Securities and no implied covenants shall be
read into this Declaration against the Institutional Trustee. In
case an Event of Default has occurred (that has not been cured or
waived), the Institutional Trustee shall exercise such of the
rights and powers vesting in it by this Declaration, and use the
same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(b) No provision of this Declaration shall be
construed to relieve the Institutional Trustee from liability for
its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default
that may have occurred:
(A) the duties and obligations of the
Institutional Trustee shall be determined solely by the
express provisions of this Declaration and in the terms
of the Securities, and the Institutional Trustee shall
not be liable except for the performance of such duties
and obligations as are specifically set forth in this
Declaration, and no implied covenants or obligations
shall be read into this Declaration against the
Institutional Trustee; and
(B) in the absence of bad faith on the part of
the Institutional Trustee, the Institutional Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Institutional Trustee and conforming
to the requirements of this Declaration; provided,
however, that in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Institutional Trustee,
the Institutional Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer of the Institutional Trustee, unless it shall be
proved that the Institutional Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Institutional 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 at least a Majority in liquidation amount of the
outstanding Securities relating to the time, method and
place of conducting any proceeding for any remedy available
to the Institutional Trustee or exercising any trust or
power conferred upon the Institutional Trustee under this
Declaration;
(iv) no provision of this Declaration shall require any
of the Trustees 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;
(v) the Institutional Trustee's sole duty with respect
to the custody, safe keeping and physical preservation of
the Trust Property shall be to deal with such property in a
similar manner as the Institutional Trustee deals with
similar property for its own account, subject to the
protections and limitations on liability afforded to the
Institutional Trustee under this Declaration, the Trust
Indenture Act and, to the extent applicable, Rule 3a-7 under
the Investment Company Act;
(vi) the Institutional Trustee shall have no duty or
liability for, or with respect to the value, genuineness,
existence or sufficiency of, the Trust Property or the
payment of any taxes or assessments levied thereon or in
connection therewith;
(vii) the Institutional Trustee shall not be liable
for any interest on any money received by it except as it
may otherwise agree with the Sponsor. Money held by the
Institutional Trustee need not be segregated from other
funds held by it except in relation to the Institutional
Trustee Account established by the Institutional Trustee
pursuant to this Declaration and except to the extent
otherwise required by law; and
(viii) the Institutional Trustee shall not be
responsible for monitoring the compliance by the Regular
Trustees or the Sponsor with their respective duties under
this Declaration, nor shall the Institutional Trustee be
liable for the default or misconduct of the Regular Trustees
or the Sponsor.
(c) All payments made by the Institutional Trustee or
a Paying Agent in respect of the Securities shall be made only
from the income and proceeds from the Trust Property to enable
the Institutional Trustee or Paying Agent to make payments in
accordance with the terms hereof. Each Holder, by its acceptance
of a Security, agrees that it will look solely to the income and
proceeds from the Trust Property to the extent available for
distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in
respect of any Security or for any other liability in respect of
any Security. This Section 3.9(c) does not limit the liability
of the Trustees expressly set forth elsewhere in this Declaration
or, in the case of the Institutional Trustee, in the Trust
Indenture Act.
(d) No Regular Trustee shall be liable for any act or
omission to act hereunder, except for its own gross negligence or
wilful misconduct.
SECTION 3.10 CERTAIN RIGHTS OF INSTITUTIONAL TRUSTEE.
Subject to the provisions of Section 3.9 and to the
applicable provisions of the Trust Indenture Act:
(a) the Institutional Trustee may rely and shall be
protected in acting or refraining from acting in good faith
upon any resolution, opinion of counsel, certificate,
written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) if (A) in performing its duties under this
Declaration the Institutional Trustee is required to decide
between alternative courses of action or (B) in construing
any of the provisions in this Declaration the Institutional
Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (C) the Institutional
Trustee is unsure of the application of any provision of
this Declaration, then, except as to any matter as to which
the Holders of Preferred Securities are entitled to vote
under the terms of this Declaration, the Institutional
Trustee shall deliver a notice to the Sponsor requesting
written instructions of the Sponsor as to the course of
action to be taken. The Institutional Trustee shall take
such action, or refrain from taking such action, as the
Institutional Trustee shall be instructed in writing to
take, or to refrain from taking, by the Sponsor; provided,
however, that if the Institutional Trustee does not receive
such instructions of the Sponsor within 10 Business Days
after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to
the extent practicable shall not be less than 2 Business
Days), it may, but shall be under no duty to, take or
refrain from taking such action not inconsistent with this
Declaration as it shall deem advisable and in the best
interests of the Holders, in which event the Institutional
Trustee shall have no liability except for its own bad
faith, negligence or wilful misconduct;
(c) whenever in the administration of this Declaration
the Institutional Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Institutional Trustee
(unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, request and
rely upon an Officer's Certificate;
(d) the Institutional Trustee may consult with counsel
of its selection, 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 Institutional Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Declaration at the request or direction of any of
the Holders pursuant to this Declaration, unless such
Holders shall have offered to the Institutional Trustee
reasonable security or indemnity against the costs, expenses
(including reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying with
such request or direction;
(f) the Institutional 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,
approval, bond, debenture, note or other evidence of
indebtedness or other paper or document reasonably believed
by it to be genuine, unless requested in writing to do so by
one or more Holders, but the Institutional Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit;
(g) the Institutional Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through its agents or attorneys,
and the Institutional 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; provided,
however, that the Institutional Trustee shall be responsible
for its own negligence or recklessness with respect to
selection of any agent or attorney appointed by it
hereunder;
(h) the Institutional Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in
good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it
by this Declaration;
(i) the Institutional Trustee shall not be charged
with knowledge of any default or Event of Default with
respect to the Securities unless either (A) a Responsible
Officer of the Institutional Trustee shall have actual
knowledge of the default or Event of Default or (B) written
notice of such default or Event of Default shall have been
given to the Institutional Trustee by the Sponsor, the
Regular Trustees or any Holder;
(j) no provision of this Declaration shall be deemed
to impose any duty or obligation on the Institutional
Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the
Institutional Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or
acts or to exercise any such right, power, duty or
obligation; and no permissive or discretionary power or
authority available to the Institutional Trustee shall be
construed to be a duty;
(k) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if the Institutional Trustee shall
have reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it
under the terms of this Declaration or adequate indemnity
against such risk or liability is not reasonably assured to
it;
(l) the Institutional Trustee shall have no duty to
see to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any securities) (or any rerecording, refiling
or reregistration thereof);
(m) the Institutional Trustee shall have the right at
any time to seek instructions concerning the administration
of this Declaration from any court of competent
jurisdiction; and
(n) whenever in the administration of this Declaration
the Institutional Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Institutional
Trustee (A) may request instructions from the Holders, which
instructions may only be given by the Holders of the same
amount of the Securities as would be entitled to direct the
Institutional Trustee under the terms of this Declaration in
respect of such remedies, rights or actions, (B) may refrain
from enforcing such remedy or right or taking such other
action until such instructions are received, and (C) shall
be protected in acting in accordance with such instructions.
SECTION 3.11 DELAWARE TRUSTEE.
Notwithstanding any other provision of this Declaration
other than Section 5.2, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities of the Regular
Trustees or the Institutional Trustee described in this
Declaration. Except as set forth in Section 5.2, the Delaware
Trustee shall be a trustee for the sole and limited purpose of
fulfilling the requirements of 3807 of the Business
Trust Act.
SECTION 3.12 EXECUTION OF DOCUMENTS.
Unless otherwise determined by the Regular Trustees,
and except as otherwise required by the Business Trust Act, a
majority of or, if there are only two, any Regular Trustee or, if
there is only one, such Regular Trustee is authorized to execute
on behalf of the Trust any documents that the Regular Trustees
have the power and authority to execute pursuant to Section 3.6;
provided that, the registration statement referred to in
Section 3.6(b)(i), including any amendments thereto, shall be
signed by all of the Regular Trustees.
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained in this Declaration and the
Securities shall be taken as the statements of the Sponsor, and
the Trustees do not assume any responsibility for their
correctness. The Trustees make no representations as to the
value or condition of the property of the Trust or any part
thereof. The Trustees make no representations as to the validity
or sufficiency of this Declaration or the Securities.
SECTION 3.14 DURATION OF TRUST.
The Trust, unless terminated pursuant to the provisions
of Article VIII hereof, shall have existence for forty-five (45)
years from the Closing Date.
SECTION 3.15 MERGERS.
(a) The Trust may not merge, consolidate or amalgamate
with or into, or enter into any other business combination with,
or be replaced by, or convey, transfer or lease its properties
and assets substantially as an entirety to any corporation or
other body, except as described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular
Trustees or, if there are more than two, a majority of the
Regular Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Institutional Trustee,
merge, consolidate or amalgamate with or into, or enter into any
other business combination with, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an
entirety to, a trust organized as such under the laws of any
state; provided, however, that:
(i) such successor entity (the "SUCCESSOR ENTITY")
either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Securities other
securities having substantially the same terms as the
Preferred Securities (the "SUCCESSOR SECURITIES") so
long as the Successor Securities rank the same as the
Preferred Securities rank with respect to Distributions
and payments upon liquidation, redemption and
otherwise;
(ii) the Debenture Issuer expressly appoints a trustee
of the Successor Entity that possesses the same powers and
duties as the Institutional Trustee as the Holder of the
Debentures;
(iii) the Preferred Securities or any Successor
Securities are listed, or any Successor Securities will be
listed upon notification of issuance, on any national
securities exchange or with another organization on which
the Preferred Securities are then listed or quoted, if any;
(iv) such merger, consolidation, amalgamation, other
business combination, replacement, conveyance, transfer or
lease does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally
recognized statistical rating organization within the
meaning of Rule 436(g)(12) under the Securities Act or any
successor rule or regulation;
(v) such merger, consolidation, amalgamation, other
business combination, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and
privileges of the Holders of the Securities (including any
Successor Securities) in any material respect (other than
with respect to any dilution of such Holders' interests in
the Preferred Securities as a result of such merger,
consolidation, amalgamation, replacement, conveyance,
transfer or lease);
(vi) such Successor Entity has a purpose identical to
that of the Trust;
(vii) prior to such merger, consolidation,
amalgamation, other business combination, replacement,
conveyance, transfer or lease, the Sponsor has received an
opinion of counsel to the effect that:
(A) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges
of the Holders of the Securities (including any
Successor Securities) in any material respect (other
than with respect to any dilution of the Holders'
interest in the new entity);
(B) following such merger, consolidation,
amalgamation, other business combination, replacement,
conveyance, transfer or lease, neither the Trust nor
the Successor Entity will be required to register as an
Investment Company; and
(C) following such merger, consolidation,
amalgamation, other business combination, replacement,
conveyance, transfer or lease the Trust (or the
Successor Entity) will continue not to be treated as an
association taxable as a corporation for United States
federal income tax purposes; and
(viii) the Sponsor or any permitted successor
guarantees the obligations of such Successor Entity under
the Successor Securities at least to the extent provided by
the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall
not, except with the consent of Holders of 100% in liquidation
amount of the Securities, merge, consolidate or amalgamate with
or into, enter into any other business combination with or be
replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to, any other entity or
permit any other entity to merge, consolidate or amalgamate,
merge with or into, enter into any other business combination
with or replace it if such merger, consolidation, amalgamation,
other business combination, replacement, conveyance, transfer or
lease would cause the Trust or Successor Entity to be treated as
an association taxable as a corporation for United States federal
income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 SPONSOR'S PURCHASE OF COMMON SECURITIES.
On the Closing Date the Sponsor will purchase all of
the Common Securities issued by the Trust, in an amount at least
equal to 3% of the capital of the Trust, at the same time as the
Preferred Securities are sold.
SECTION 4.2 RESPONSIBILITIES OF THE SPONSOR.
In connection with the issuance and sale of the
Preferred Securities, the Sponsor shall have the exclusive right
and responsibility to engage in the following activities:
(a) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 in relation
to the Preferred Securities, including any amendments
thereto;
(b) to determine the states in which to take
appropriate action to qualify or register for sale all or
part of the Preferred Securities and to do any and all such
acts, other than actions which must be taken by the Trust,
and advise the Trust of actions it must take, and prepare
for execution and filing any documents to be executed and
filed by the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any
such states;
(c) to prepare for filing by the Trust an
application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred Securities;
(d) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A relating to
the registration of the Preferred Securities under Section
12(b) of the Exchange Act, including any amendments thereto;
and
(e) to negotiate the terms of the Underwriting
Agreement providing for the sale of the Preferred
Securities.
ARTICLE V
TRUSTEES
SECTION 5.1 NUMBER OF TRUSTEES.
The number of Trustees initially shall be three (3),
and:
(a) at any time before the issuance of any Securities,
the Sponsor may, by written instrument, increase or decrease
the number of Trustees; and
(b) after the issuance of any Securities, the number
of Trustees may be increased or decreased by vote of the
Holders of a majority in liquidation amount of the Common
Securities voting as a class at a meeting of the Holders of
the Common Securities; provided, however, that the number of
Trustees shall in no event be less than two (2); and
provided, further, that, (1) there shall be at least one
Trustee who is an employee or officer of, or is affiliated
with the Sponsor (a "REGULAR TRUSTEE"); (2) one Trustee
shall be the Institutional Trustee for so long as this
Declaration is required to qualify as an indenture under the
Trust Indenture Act, and such Trustee may also serve as
Delaware Trustee if it meets the applicable requirements;
and (3) there shall be a Delaware Trustee to the extent
required under Section 5.2.
SECTION 5.2 DELAWARE TRUSTEE.
If required by the Business Trust Act, one Trustee (the
"DELAWARE TRUSTEE") shall be:
(a) a natural person who is a resident of the state of
Delaware; or
(b) if not a natural person, an entity which has its
principal place of business in the State of Delaware, and
otherwise meets the requirements of applicable law;
provided, however, that if the Institutional Trustee has its
principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law, then the
Institutional Trustee may also be the Delaware Trustee and
Section 3.11 shall have no application.
SECTION 5.3 INSTITUTIONAL TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which
shall act as "INSTITUTIONAL TRUSTEE" which shall be:
(i) not an Affiliate of the Sponsor; and
(ii) 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
(iii)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 United States Dollar equivalent of the applicable
foreign currency and subject to supervision or examination
by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision
or examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Institutional Trustee shall
cease to be eligible to so act under Section 5.3(a), the
Institutional Trustee shall immediately resign in the manner and
with the effect set forth in Section 5.7(c).
(c) If the Institutional Trustee has or shall acquire
any "CONFLICTING INTEREST" within the meaning of 310(b)
of the Trust Indenture Act, the Institutional Trustee and the
Holder of the Common Securities (as if it were the obligor
referred to in 310(b) of the Trust Indenture Act) shall
in all respects comply with the provisions of 310(b) of
the Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed
to be specifically described in this Declaration for purposes of
clause (i) of the first provision contained in Section 310(b) of
the Trust Indenture Act.
(e) The initial Institutional Trustee shall be:
Wilmington Trust Company.
SECTION 5.4 CERTAIN QUALIFICATIONS OF REGULAR TRUSTEES AND
DELAWARE TRUSTEE GENERALLY.
Each Regular Trustee and the Delaware Trustee (unless
the Institutional Trustee also acts as Delaware Trustee) shall be
either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more Authorized
Officers.
SECTION 5.5 REGULAR TRUSTEES.
The initial Regular Trustees shall be:
Lawrence J. Pierce
Dorothy K. Mercer.
(a) Except as expressly set forth in this Declaration
and except if a meeting of the Regular Trustees is called with
respect to any matter over which the Regular Trustees have power
to act, any power of the Regular Trustees may be exercised by, or
with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular
Trustees, and except as otherwise required by the Business Trust
Act or applicable law, any Regular Trustee is authorized to
execute on behalf of the Trust any documents which the Regular
Trustees have the power and authority to cause the Trust to
execute pursuant to Section 3.6, provided, however, that the
registration statement referred to in Section 3.6, including any
amendments thereto, shall be signed by all of the Regular
Trustees.
(c) A Regular Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purposes of
signing any documents which the Regular Trustees have power and
authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 DELAWARE TRUSTEE.
The initial Delaware Trustee shall be:
Wilmington Trust Company.
SECTION 5.7 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 5.7(b), Trustees may be
appointed or removed without cause at any time except during an
Event of Default:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of
the Holders of a Majority in liquidation amount of the
Common Securities voting as a class at a meeting of the
Holders of the Common Securities.
(b) (i) The Institutional Trustee shall not be removed
in accordance with Section 5.7(a) until a Successor Institutional
Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Institutional
Trustee and delivered to the Regular Trustees and the Sponsor;
and
(ii) the Delaware Trustee shall not be removed in
accordance with this Section 5.7(a) until a successor
Trustee possessing the qualifications to act as Delaware
Trustee under Sections 5.2 and 5.4 (a "SUCCESSOR DELAWARE
TRUSTEE") has been appointed and has accepted such
appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular Trustees and
the Sponsor.
(c) A Trustee appointed to office shall hold office
until his successor shall have been appointed or until his death,
removal or resignation. Any Trustee may resign from office
(without need for prior or subsequent accounting) by an
instrument in writing signed by the Trustee and delivered to the
Sponsor and the Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein;
provided, however, that:
(i) no such resignation of the Institutional Trustee
shall be effective:
(A) until a Successor Institutional Trustee has
been appointed and has accepted such appointment by
instrument executed by such Successor Institutional
Trustee and delivered to the Trust, the Sponsor and the
resigning Institutional Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof
distributed to the holders of the Securities; and
(ii) no such resignation of the Delaware Trustee shall
be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to
the Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use all
reasonable efforts to promptly appoint a Successor Delaware
Trustee or Successor Institutional Trustee as the case may be if
the Institutional Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 5.7.
(e) If no Successor Institutional Trustee or Successor
Delaware Trustee shall have been appointed and accepted
appointment as provided in this Section 5.7 within 60 days after
delivery of an instrument of resignation or removal, the
Institutional Trustee or Delaware Trustee resigning or being
removed, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Institutional Trustee
or Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Institutional Trustee or Delaware Trustee shall
be liable for the acts or omissions to act of any Successor
Institutional Trustee or Successor Delaware Trustee, as the case
may be.
SECTION 5.8 VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and
the number of Trustees is not reduced pursuant to Section 5.1, or
if the number of Trustees is increased pursuant to Section 5.1, a
vacancy shall occur. A resolution certifying the existence of
such vacancy by the Regular Trustees or, if there are more than
two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.7.
SECTION 5.9 EFFECT OF VACANCIES.
The death, resignation, retirement, removal,
bankruptcy, dissolution, liquidation, incompetence or incapacity
to perform the duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of Regular Trustees
shall occur, until such vacancy is filled by the appointment of
Regular Trustee in accordance with Section 5.7, the Regular
Trustees in office, regardless of their number, shall have all
the powers granted to the Regular Trustees and shall discharge
all the duties imposed upon the Regular Trustees by this
Declaration.
SECTION 5.10 MEETINGS.
If there is more than one Regular Trustee, meetings of
the Regular Trustees shall be held from time to time upon the
call of any Regular Trustee. Regular meetings of the Regular
Trustees may be held at a time and place fixed by resolution of
the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight
courier) not less than 48 hours before such meeting. Notice of
any telephonic meetings of the Regular Trustees or any committee
thereof shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier)
not less than 24 hours before a meeting. Notices shall contain a
brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of
a Regular Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction
of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Regular Trustees may be taken at a
meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with
respect to such matter, provided that a Quorum is present, or
without a meeting by the unanimous written consent of the Regular
Trustees. In the event there is only one Regular Trustee, any
and all action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
SECTION 5.11 DELEGATION OF POWER.
(a) Any Regular Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 3.6, including
any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) the Regular Trustees shall have power to delegate
from time to time to such of their number or to officers of the
Trust the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the
Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set
forth herein.
Section 5.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Institutional Trustee or
the Delaware Trustee, as the case may be, may be merged or
converted or with which either may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware
Trustee, as the case may be, shall be a party, or any corporation
succeeding to all or substantially all the corporate trust
business of the Institutional Trustee or the Delaware Trustee, as
the case may be, shall be the successor of the Institutional
Trustee or the Delaware Trustee, as the case may be, 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.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS.
Holders shall receive Distributions (as defined herein)
in accordance with the applicable terms of the Securities.
Distributions shall be made on the Preferred Securities and the
Common Securities in accordance with the preferences set forth in
their respective terms. If and to the extent that the Debenture
Issuer makes a payment of interest (including Compounded Interest
(as defined in the Indenture) and Additional Interest (as defined
in the Indenture)), premium and/or principal on the Debentures
held by the Institutional Trustee (the amount of any such payment
being a "PAYMENT AMOUNT"), the Institutional Trustee shall and is
directed, to the extent funds are available for that purpose, to
make a distribution (a "DISTRIBUTION") of the Payment Amount to
Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 GENERAL PROVISIONS REGARDING SECURITIES.
(a) The Regular Trustees shall on behalf of the Trust
issue one class of preferred securities representing undivided
beneficial interests in the assets of the Trust having such terms
as are set forth in Annex I (the "PREFERRED SECURITIES") and one
class of common securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set
forth in Annex I (the "COMMON SECURITIES"). The Trust shall
issue no securities or other interests in the assets of the Trust
other than the Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the
Trust by a Regular Trustee. Such signature shall be the manual
or facsimile signature of any present or any future Regular
Trustee. In case any Regular Trustee of the Trust who shall have
signed any of the Securities shall cease to be such Regular
Trustee before the Certificates so signed shall be delivered by
the Trust, such Certificates nevertheless may be delivered as
though the person who signed such Certificates had not ceased to
be such Regular Trustee; and any Certificate may be signed on
behalf of the Trust by such persons who, at the actual date of
execution of such Security, shall be the Regular Trustees of the
Trust, although at the date of the execution and delivery of the
Declaration any such person was not such a Regular Trustee.
Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the
Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification
or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply
with any law or with any rule or regulation of any stock exchange
on which Securities may be listed, or to conform to usage.
(c) The consideration received by the Trust for the
issuance of the Securities shall constitute a contribution to the
capital of the Trust and shall not constitute a loan to the
Trust.
(d) Upon issuance of the Securities as provided in
this Declaration and the receipt of the consideration to be
received therefor, the Securities so issued shall be deemed to be
validly issued, fully paid and non-assessable.
(e) Every Person, by virtue of having become a Holder
or a Preferred Security Beneficial Owner in accordance with the
terms of this Declaration, shall be deemed to have expressly
assented and agreed to the terms of, and shall be bound by, this
Declaration.
SECTION 7.2 PAYING AGENT.
The Trust shall appoint a paying agent (the "PAYING
AGENT") and may appoint one or more additional paying agents in
such other locations as it shall determine. The term "PAYING
AGENT" includes any additional paying agent. The Trust may
change any Paying Agent without prior notice to any Holder. The
Trust shall notify the Institutional Trustee of the name and
address of any Agent not a party to this Declaration. If the
Trust fails to appoint or maintain another entity as Paying
Agent, the Institutional Trustee shall act as such. The Trust or
any of its Affiliates may act as Paying Agent. Wilmington Trust
Company shall initially act as Paying Agent for the Preferred
Securities and the Common Securities.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 TERMINATION OF TRUST.
(a) The Trust shall terminate:
(i) upon the occurrence of an Event of Default
described in clause (d) or (e) of Section 701 of the
Indenture;
(ii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Sponsor; the filing of a
certificate of cancellation with respect to the Trust after
having obtained the consent of a majority in liquidation
amount of the Securities voting together as a single class
to file such certificate of cancellation; or the revocation
of the Sponsor's charter and the expiration of 90 days after
the date of revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial
dissolution of the Holder of the Common Securities, the
Sponsor or the Trust;
(iv) when all of the Securities shall have been called
for redemption and the amounts necessary for redemption
thereof shall have been paid to the Holders in accordance
with the terms of the Securities;
(v) upon the occurrence and continuation of a Tax
Event in connection with which the Trust shall have been
dissolved in accordance with the terms of the Securities and
all of the Debentures endorsed thereon shall have been
distributed to the Holders of Securities in exchange for all
of the Securities; or
(vi) before the issuance of any Securities, with the
consent of all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of
an event referred to in Section 8.1(a), the Trustees shall file a
certificate of cancellation with the Secretary of State of the
State of Delaware.
(c) The provisions of Section 3.9 and Article X shall
survive the termination of the Trust except as contemplated in
Section 1005 of the Indenture.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 TRANSFER OF SECURITIES.
(a) Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in
this Declaration and in the terms of the Securities. Any
transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities
shall be freely transferable.
(c) The Preferred Securities are to be initially
registered in the name of Cede & Co., as nominee for The
Depository Trust Company (the "DEPOSITARY") and the Preferred
Security Certificates so initially registered shall bear such
legends as required by the Depositary. Such Preferred Securities
shall not be transferable or exchangeable, nor shall any
purported transfer be registered, except as follows:
(i) such Preferred Securities may be transferred in
whole, and appropriate registration of transfer effected, if
such transfer is by such nominee to the Depositary, or by
the Depositary to another nominee thereof, or by any nominee
of the Depositary to any other nominee thereof, or by the
Depositary or any nominee thereof to any successor
securities depositary or any nominee thereof; and
(ii) such Preferred Securities shall be exchanged for
Preferred Securities Certificates registered in the
respective names of the beneficial holders thereof, and
thereafter shall be transferable without restriction, if:
(A) the Depositary, or any successor securities
depositary, shall have notified the Company and the
Institutional Trustee that it is unwilling or unable to
continue to act as securities depositary with respect to
such Preferred Securities and the Institutional Trustee
shall not have been notified by the Company within ninety
(90) days of the identity of a successor securities
depositary with respect to such Preferred Securities;
(B) the Company shall have delivered to the
Institutional Trustee an Officer's Certificate to the effect
that such Preferred Securities shall be so exchangeable on
and after a date specified therein; or
(C) (1) an Event of Default shall have occurred
and be continuing, (2) the Institutional Trustee shall have
given notice of such Event of Default pursuant to Section
2.7 of this Declaration and (3) there shall have been
delivered to the Company and the Institutional Trustee an
opinion of counsel to the effect that the interests of the
beneficial owners of such Preferred Securities in respect
thereof will be materially impaired unless such owners
become Holders of Preferred Securities Certificates.
(d) The Sponsor shall maintain 100% direct ownership
of the Common Securities by the Sponsor or any Affiliate thereof,
except as otherwise provided in Section 1005 of the Indenture.
SECTION 9.2 TRANSFER OF CERTIFICATES.
The Regular Trustees shall provide for the registration
of Certificates and of transfers of Certificates, which will be
effected without charge but only upon payment (with such
indemnity as the Regular Trustees may reasonably require) in
respect of any documentary stamp tax or other similar
governmental charges that may be imposed in relation to it. Upon
surrender for registration of transfer of any Certificate, the
Regular Trustees shall cause one or more new Certificates to be
issued in the name of the designated transferee or transferees.
Every Certificate surrendered for registration of transfer shall
be accompanied by a written instrument of transfer in form
satisfactory to the Regular Trustees duly executed by the Holder
or such Holder's attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer shall be
canceled by the Regular Trustees. A transferee of a Certificate
shall be entitled to the rights and be subject to the obligations
of a Holder hereunder upon the receipt by such transferee of a
Certificate. By acceptance of a Certificate, each transferee
shall be deemed to have agreed to be bound by this Declaration.
SECTION 9.3 DEEMED SECURITY HOLDERS.
The Trustees may treat the Person in whose name any
Certificate shall be registered on the books and records of the
Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of
receiving Distributions and for all other purposes whatsoever
and, accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any
Person, whether or not the Trust shall have actual or other
notice thereof.
SECTION 9.4 PREFERRED SECURITY CERTIFICATES.
(a) Preferred Security Certificates shall be prepared
by the Regular Trustees on behalf of the Trust with respect
to such Preferred Securities; and
(b) Preferred Security Certificates shall be printed,
lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Regular Trustees,
as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to
comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock
exchange on which Preferred Securities may be listed, or to
conform to usage.
SECTION 9.5 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If:
(a) any mutilated Certificates should be surrendered
to the Regular Trustees, or if the Regular Trustees shall receive
evidence to their satisfaction of the destruction, loss or theft
of any Certificate; and
(b) there shall be delivered to the Regular Trustees
such security or indemnity as may be required by them to keep
each of them harmless,
then, in the absence of notice that such Certificate shall have
been acquired by a person purporting to be a bona fide purchaser,
any Regular Trustee on behalf of the Trust shall execute and
deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new
Certificate under this Section 9.5, the Regular Trustees may
require the payment of a sum sufficient to cover any documentary
stamp tax or other similar governmental charge that may be
imposed in connection therewith. Any duplicate Certificate
issued pursuant to this Section shall constitute conclusive
evidence of an ownership interest in the relevant Securities, as
if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 LIABILITY.
(a) Except as expressly set forth in this Declaration,
the Securities Guarantees and the terms of the Securities, the
Sponsor shall not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon) of the
Holders of the Securities which shall be made solely from
assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or
otherwise.
(b) The Sponsor shall be liable for all of the debts
and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's
assets.
(c) Pursuant to 3803(a) of the Business
Trust Act, the Holders of the Preferred Securities shall be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware.
SECTION 10.2 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of
such Indemnified Person's gross negligence or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the
Trust by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional
or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
Distributions to Holders of Securities might properly be paid.
SECTION 10.3 FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Declaration shall
not be liable to the Trust or to any other Covered Person for its
good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict
the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on
the Institutional Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any Holder of
Securities,
the Indemnified Person shall resolve such conflict of interest,
take such action or provide such terms, considering in each case
the relative interest of each party (including its own interest)
to such conflict, agreement, transaction or situation and the
benefits and burdens relating to such interests, any customary or
accepted industry practices, and any applicable generally
accepted accounting practices or principles. In the absence of
bad faith by the Indemnified Person, the resolution, action or
term so made, taken or provided by the Indemnified Person shall
not constitute a breach of this Declaration or any other
agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person
is permitted or required to make a decision:
(i) in its "DISCRETION" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other or
different standard imposed by this Declaration or by
applicable law.
SECTION 10.4 INDEMNIFICATION.
(a) (i) The Sponsor shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Trust) by
reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act
in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or
is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees and
expenses) actually and reasonably incurred by him in
connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of
the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which
such Company Indemnified Person shall have been adjudged to
be liable to the Trust unless and only to the extent that
the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified
Person shall be successful on the merits or otherwise
(including dismissal of an action without prejudice or the
settlement of an action without admission of liability) in
defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in
defense of any claim, issue or matter therein, he shall be
indemnified, to the full extent permitted by law, against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii)
of this Section 10.4(a) (unless ordered by a court) shall be
made by the Sponsor only as authorized in the specific case
upon a determination that indemnification of the Company
Indemnified Person is proper in the circumstances because he
has met the applicable standard of conduct set forth in
paragraphs (i) and (ii). Such determination shall be made
(1) by the Regular Trustees by a majority vote of a quorum
consisting of such Regular Trustees who were not parties to
such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion, or (3) by the Holders of
the Common Securities.
(v) Expenses (including attorneys' fees and expenses)
incurred by a Company Indemnified Person in defending civil,
criminal, administrative or investigative action, suit or
proceeding referred to in paragraphs (i) and (ii) of this
Section 10.4(a) shall be paid by the Sponsor in advance of
the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf such Company
Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the Sponsor as authorized in this Section
10.4(a). Notwithstanding the foregoing, no advance shall be
made by the Debenture Issuer if a determination is
reasonably and promptly made (i) by the Regular Trustees by
a majority vote of a quorum of disinterested Regular
Trustees, (ii) if such a quorum is not obtainable, or, even
if obtainable, if a quorum of disinterested Regular Trustees
so directs, by independent legal counsel in a written
opinion or (iii) the Common Security Holder of the Trust,
that, based upon the facts known to the Regular Trustees,
counsel or the Common Security Holder at the time such
determination is made, such Company Indemnified Person acted
in bad faith or in a manner that such person did not believe
to be in or not opposed to the best interests of the Trust,
or, with respect to any criminal proceeding, that such
Company Indemnified Person believed or had reasonable cause
to believe his conduct was unlawful. In no event shall any
advance be made in instances where the Regular Trustees,
independent legal counsel or Holders of the Common
Securities reasonably determine that such person
deliberately breached his duty to the Trust or the Holders
of the Preferred Securities.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 10.4(a) shall not be deemed exclusive of any
other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement,
vote of stockholders or disinterested directors of the
Sponsor or vote of Holders of Preferred Securities or
otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office. All
rights to indemnification under this Section 10.4(a) shall
be deemed to be provided by a contract between the Sponsor
and each Company Indemnified Person who serves in such
capacity at any time while this Section 10.4(a) is in
effect. Any repeal or modification of this Section 10.4(a)
shall not affect any rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and
maintain insurance on behalf of any person who is or was a
Company Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the
Sponsor would have the power to indemnify him against such
liability under the provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references
to "the Trust" shall include, in addition to the resulting
or surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a merger,
consolidation, amalgamation or other business combination so
that any person who is or was a director, trustee, officer
or employee of such constituent entity, or is or was serving
at the request of such constituent entity as a director,
trustee, officer, employee or agent of another entity, shall
stand in the same position under the provisions of this
Section 10.4(a) with respect to the resulting or surviving
entity as he would have with respect to such constituent
entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a)
shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(b) The Sponsor agrees to indemnify the (i)
Institutional Trustee, (ii) the Delaware Trustee, (iii) any
Affiliate of the Institutional Trustee and the Delaware Trustee,
and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or
agents of the Institutional Trustee and the Delaware Trustee
(each of the Persons in (i) through (iv) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary
Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense including taxes (other than taxes based
on the income of such Fiduciary Indemnified Person) incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration or the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against
or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligation to indemnify as set forth in this Section 10.4(b)
shall survive the satisfaction and discharge of this Declaration.
SECTION 10.5 OUTSIDE BUSINESSES.
Any Covered Person, the Sponsor, the Delaware Trustee
and the Institutional Trustee may engage in or possess an
interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in
and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed
wrongful or improper. No Covered Person, the Sponsor, the
Delaware Trustee, or the Institutional Trustee shall be obligated
to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the
Institutional Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate
of the Sponsor, or may act as depositary for, trustee or agent
for, or act on any committee or body of holders of, securities or
other obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 FISCAL YEAR.
The fiscal year ("Fiscal Year") of the Trust shall be
the calendar year, or such other year as is required by the Code.
SECTION 11.2 CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust,
the Regular Trustees shall keep, or cause to be kept, full books
of account, records and supporting documents, which shall reflect
in reasonable detail, each transaction of the Trust. The books
of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the
accrual method of accounting for United States federal income tax
purposes. The books of account and the records of the Trust
shall be examined by and reported upon as of the end of each
Fiscal Year of the Trust by a firm of independent certified
public accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared
and delivered to each of the Holders of Securities, within 90
days after the end of each Fiscal Year of the Trust, annual
financial statements of the Trust, including a balance sheet of
the Trust as of the end of such Fiscal Year, and the related
statements of income or loss;
(c) The Regular Trustees shall cause to be duly
prepared and delivered to each of the Holders of Securities, any
annual United States federal income tax information statement,
required by the Code, containing such information with regard to
the Securities held by each Holder as is required by the Code and
the Treasury Regulations. Notwithstanding any right under the
Code to deliver any such statement at a later date, the Regular
Trustees shall endeavor to deliver all such statements within 30
days after the end of each calendar year.
(d) The Regular Trustees shall cause to be duly
prepared and filed with the appropriate taxing authority, an
annual United States federal income tax return, on a Form 1041 or
such other form required by United States federal income tax law,
and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or
local taxing authority.
SECTION 11.3 BANKING.
The Trust shall maintain one or more bank accounts in
the name and for the sole benefit of the Trust; provided,
however, that all payments of funds in respect of the Debentures
held by the Institutional Trustee shall be made directly to the
Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The
sole signatories for such accounts shall be designated by the
Regular Trustees; provided, however, that the Institutional
Trustee shall designate the signatories for the Institutional
Trustee Account.
SECTION 11.4 WITHHOLDING.
The Trust and the Regular Trustees shall comply with
all withholding requirements under United States federal, state
and local law. The Trust shall request, and the Holders shall
provide to the Trust, such forms or certificates as are necessary
to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of,
and in fulfilling, its withholding obligations. The Regular
Trustees shall file required forms with applicable jurisdictions
and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the
Holder to applicable jurisdictions. To the extent that the Trust
is required to withhold and pay over any amounts to any authority
with respect to distributions or allocations to any Holder, the
amount withheld shall be deemed to be a distribution in the
amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action
against the applicable jurisdiction. If the amount required to
be withheld was not withheld from actual Distributions made, the
Trust may reduce subsequent Distributions by the amount of such
withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 AMENDMENTS.
(a) Except as otherwise provided in this Declaration
or by any applicable terms of the Securities, this Declaration
may only be amended by a written instrument approved and executed
by:
(i) the Regular Trustees (or, if there are more than
two Regular Trustees a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Institutional
Trustee, the Institutional Trustee; and
(iii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee,
the Delaware Trustee;
(b) no amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Institutional Trustee shall have first received an Officer's
Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of
this Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment
which affects the rights, powers, duties, obligations or
immunities of the Institutional Trustee, the Institutional
Trustee shall have first received:
(A) an Officer's Certificate from each of the
Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
and
(iii) to the extent the result of such amendment
would be to:
(A) cause the trust to be classified for purposes
of United States federal income taxation as an
association taxable as a corporation;
(B) reduce or otherwise adversely affect the
powers of the Institutional Trustee in contravention of
the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(c) at such time after the Trust has issued any
Securities that remain outstanding, any amendment that would
adversely affect the rights, privileges or preferences of any
Holder of Securities may be effected only with such additional
requirements as may be set forth in the terms of such Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be
amended without the consent of all of the Holders of the
Securities;
(e) Article IV shall not be amended without the
consent of the Holders of a Majority in liquidation amount of the
Common Securities and;
(f) the rights of the holders of the Common Securities
under Article V to increase or decrease the number of, and
appoint and remove Trustees shall not be amended without the
consent of the Holders of a Majority in liquidation amount of the
Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration
may be amended without the consent of the Holders of the
Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any
other provision of this Declaration;
(iii) add to the covenants, restrictions or obligations
of the Sponsor;
(iv) conform to any change in Rule 3a-5 or written
change in interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory
authority which amendment does not have a material adverse
effect on the right, preferences or privileges of the
Holders; and
(v) modify, eliminate and/or add any provision of,
from or to this Declaration in any other respect so long as
such modification, elimination or addition shall not
adversely affect the interests of the Holders of Preferred
Securities in any material respect.
SECTION 12.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY
WRITTEN CONSENT.
(a) Meetings of the Holders of any class of Securities
may be called at any time by the Regular Trustees (or as provided
in the terms of the Securities) to consider and act on any matter
on which Holders of such class of Securities are entitled to act
under the terms of this Declaration, the terms of the Securities
or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular
Trustees shall call a meeting of the Holders of such class if
directed to do so by the Holders of at least 33% in liquidation
amount of such class of Securities. Such direction shall be
given by delivering to the Regular Trustees one or more calls in
a writing stating that the signing Holders of Securities wish to
call a meeting and indicating the general or specific purpose for
which the meeting is to be called. Any Holders of Securities
calling a meeting shall specify in writing the Security
Certificates held by the Holders of Securities exercising the
right to call a meeting and only those Securities specified shall
be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph has
been met.
(b) Except to the extent otherwise provided in the
terms of the Securities, the following provisions shall apply to
meetings of Holders of Securities:
(i) notice of any such meeting shall be given to all
the Holders of Securities having a right to vote thereat at
least 21 days and not more than 18 days before the date of
such meeting. Whenever a vote, consent or approval of the
Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading,
such vote, consent or approval may be given at a meeting of
the Holders of Securities. Any action that may be taken at
a meeting of the Holders of Securities may be taken without
a meeting if a consent in writing setting forth the action
so taken is signed by the Holders of Securities owning not
less than the minimum amount in liquidation amount that
would be necessary to authorize or take such action at a
meeting at which all Holders of Securities having a right to
vote thereon were present and voting. Prompt notice of the
taking of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not
consented in writing. The Regular Trustees may specify that
any written ballot submitted to the Security Holder for the
purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the
Regular Trustees;
(ii) each Holder of a Security may authorize any Person
to act for it by proxy on all matters in which a Holder of
Securities is entitled to participate, including waiving
notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of 11
months from the date thereof unless otherwise provided in
the proxy. Every proxy shall be revocable at the pleasure
of the Holder of Securities executing it. Except as
otherwise provided herein, all matters relating to the
giving, voting or validity of proxies shall be governed by
the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Securities
shall be conducted by the Regular Trustees or by such other
Person that the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration,
the terms of the Securities, the Trust Indenture Act or the
listing rules of any stock exchange on which the Preferred
Securities are then listed or trading, otherwise provides,
the Regular Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of
Holders of Securities, including notice of the time, place
or purpose of any meeting at which any matter is to be voted
on by any Holders of Securities, waiver of any such notice,
action by consent without a meeting, the establishment of a
record date, quorum requirements, voting in person or by
proxy or any other matter with respect to the exercise of
any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL
TRUSTEE.
The Trustee that acts as initial Institutional Trustee
represents and warrants to the Trust and to the Sponsor at the
date of this Declaration, and each Successor Institutional
Trustee represents and warrants to the Trust and the Sponsor at
the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee, that:
(a) the Institutional Trustee is a Delaware banking
corporation with trust powers and authority to execute and
deliver, and to carry out and perform its obligations under
the terms of, this Declaration;
(b) the execution, delivery and performance by the
Institutional Trustee of the Declaration has been duly
authorized by all necessary corporate action on the part of
the Institutional Trustee. The Declaration has been duly
executed and delivered by the Institutional Trustee, and it
constitutes a legal, valid and binding obligation of the
Institutional Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar
laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this
Declaration by the Institutional Trustee does not conflict
with or constitute a breach of the charter or by-laws of the
Institutional Trustee; and
(d) no consent, approval or authorization of, or
registration with or notice to, any Delaware or other state
or any federal banking authority is required for the
execution, delivery or performance by the Institutional
Trustee of this Declaration.
SECTION 13.2 REPRESENTATIONS AND WARRANTIES OF DELAWARE
TRUSTEE.
The Trustee that acts as initial Delaware Trustee
represents and warrants to the Trust and to the Sponsor at the
date of this Declaration, and each Successor Delaware Trustee
represents and warrants to the Trust and the Sponsor at the time
of the Successor Delaware Trustee's acceptance of its appointment
as Delaware Trustee, that:
(a) The Delaware Trustee is duly organized, validly
existing and in good standing under the laws of the State of
Delaware, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under
the terms of, this Declaration.
(b) The Delaware Trustee has been authorized to
perform its obligations under the Certificate of Trust and
the Declaration. The Declaration under Delaware law
constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) No consent, approval or authorization of, or
registration with or notice to, any Delaware or other state
or any federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee
of this Declaration.
(d) The Delaware Trustee is a natural person who is a
resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business
in the State of Delaware.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 NOTICES.
All notices provided for in this Declaration shall be
in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first class mail, as
follows:
(a) if given to the Trust, in care of the Regular
Trustees at the Trust's mailing address set forth below (or
such other address as the Trust may give notice of to the
Holders of the Securities):
Washington Water Power Capital III
c/o The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Telecopy: (509) 489-4879
(b) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as Delaware
Trustee may give notice of to the Holders of the
Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telecopy: (302) 651-1576
(c) if given to the Institutional Trustee, at the
Institutional Trustee's mailing address set forth below (or
such other address as the Institutional Trustee may give
notice of to the Holders of the Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telecopy: (302) 651-1576
(d) if given to the Holder of the Common Securities,
at the mailing address of the Sponsor set forth below (or
such other address as the Holder of the Common Securities
may give notice to the Trust):
The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Telecopy: (509) 482-4879
(e) if given to any other Holder, at the address set
forth on the books and records of the Trust.
All such notices shall be deemed to have been given
when received in person with receipt confirmed, or mailed by
first class mail, postage prepaid except that if a notice or
other document is refused delivery or cannot be delivered because
of a changed address of which no notice was given, such notice or
other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 GOVERNING LAW.
This Declaration and the rights of the parties
hereunder shall be governed by and interpreted in accordance with
the laws of the State of Delaware, and all rights and remedies
shall be governed by such laws without regard to principles of
conflict of laws.
SECTION 14.3 INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the
Trust be classified for United States federal income tax purposes
as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
SECTION 14.4 HEADINGS.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the
interpretation of this Declaration or any provision hereof.
SECTION 14.5 SUCCESSORS AND ASSIGNS.
Whenever in this Declaration any of the parties hereto
is named or referred to, the successors and assigns of such party
shall be deemed to be included, and all covenants and agreements
in this Declaration by the Sponsor and the Trustees shall bind
and inure to the benefit of their respective successors and
assigns, whether so expressed.
SECTION 14.6 PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the
application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the
application of such provision to persons or circumstances other
than those to which it is held invalid, shall not be affected
thereby.
SECTION 14.7 COUNTERPARTS.
This Declaration may contain more than one counterpart
of the signature page and this Declaration may be executed by the
affixing of the signature of each of the Trustees to one of such
counterpart signature pages. All of such counterpart signature
pages shall be read as though one, and they shall have the same
force and effect as though all of the signers had signed a single
signature page.
[PAGE BREAK]
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed as of the day and year first above
written.
____________________
LAWRENCE J. PIERCE,
as Regular Trustee
___________________
DOROTHY K. MERCER,
as Regular Trustee
___________________
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:_________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Institutional Trustee
By:__________________
Name:
Title:
THE WASHINGTON WATER POWER COMPANY,
as Sponsor
By:__________________
Name:
Title:
[PAGE BREAK]
ANNEX I
TERMS OF
____% TRUST ORIGINATED PREFERRED SECURITIES, SERIES C
____% TRUST ORIGINATED COMMON SECURITIES, SERIES C
Pursuant to Section 7.1 of the Amended and Restated
Declaration of Trust, dated as of ________, 199_ (as amended from
time to time, the "Declaration"), the designation, rights,
privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities and the Common Securities
are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration or, if not
defined in such Declaration, as defined in the Prospectus
referred to below):
1. DESIGNATION AND NUMBER.
(a) PREFERRED SECURITIES. __________ Preferred
Securities of the Trust with an aggregate liquidation amount with
respect to the assets of the Trust of _____________________
($___________) and a liquidation amount with respect to the
assets of the Trust of $25 per preferred security, are hereby
designated for the purposes of identification only as "____%
Trust Originated Preferred Securities, Series C ('TOPrS' )" (the
"Preferred Securities"). The Preferred Security Certificates
evidencing the Preferred Securities shall be substantially in the
form of Exhibit A-1 to the Declaration, with such changes and
additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice or to conform to the rules of
any stock exchange on which the Preferred Securities are listed.
(b) COMMON SECURITIES. _______ Common Securities of
the Trust with an aggregate liquidation amount with respect to
the assets of the Trust of ______________________ dollars
($_________) and a liquidation amount with respect to the assets
of the Trust of $25 per common security, are hereby designated
for the purposes of identification only as "____% Trust
Originated Common Securities, Series C" (the "Common
Securities"). The Common Security Certificates evidencing the
Common Securities shall be substantially in the form of Exhibit
A-2 to the Declaration, with such changes and additions thereto
or deletions therefrom as may be required by ordinary usage,
custom or practice.
2. DISTRIBUTIONS.
(a) Distributions payable on each Security will be
fixed at a rate of ____% per annum (the "Coupon Rate") of the
stated liquidation amount of $25 per Security, such rate being
the rate of interest payable on the Debentures to be held by the
Institutional Trustee. Distributions in arrears for more than
one quarter will bear interest thereon compounded quarterly at
the Coupon Rate (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such cash
distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. The amount of Distributions
payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number
of days elapsed per 90-day quarter.
(b) Distributions on the Securities will be
cumulative, will accrue from ______, 199_, and will be payable
quarterly in arrears, on March 31, June 30, September 30, and
December 31 of each year, commencing on ________ __, 199_, except
as otherwise described below. The Debenture Issuer has the right
under the Indenture to defer payments of interest by extending
the interest payment period from time to time on the Debentures
for a period not exceeding 20 consecutive quarters (each an
"Extension Period"), during which Extension Period no interest
shall be due and payable on the Debentures, provided, however,
that no Extension Period shall last beyond the date of maturity
of the Debentures. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral,
quarterly Distributions will continue to accrue with interest
thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly during any such Extension Period.
Prior to the termination of any such Extension Period, the
Debenture Issuer may further extend such Extension Period;
provided, however, that such Extension Period, together with all
such previous and further extensions thereof, may not exceed 20
consecutive quarters or extend beyond the maturity of the
Debentures. Payments of accrued Distributions will be payable to
Holders as they appear on the books and records of the Trust on
the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of
all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements.
(c) Distributions on the Securities will be payable to
the Holders thereof as they appear on the books and records of
the Trust on the relevant record dates. The relevant record
dates for the Preferred Securities shall conform to the rules of
any securities exchange on which the securities are listed and,
if none, shall be selected by the Regular Trustees, which dates
shall be at least one Business Day but less than 50 Business Days
before the relevant payment dates, which payment dates correspond
to the interest payment dates on the Debentures. The relevant
record dates for the Common Securities shall be the same record
date as for the Preferred Securities. Distributions payable on
any Securities that are not punctually paid on any Distribution
payment date, as a result of the Debenture Issuer having failed
to make a payment under the Debentures, will cease to be payable
to the Person in whose name such Securities are registered on the
relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Securities
are registered on the special record date or other specified date
determined in accordance with the Indenture. If any date on
which Distributions are payable on the Securities is not a
Business Day, then payment of the Distribution payable on such
date will be made on the next succeeding day that is a Business
Day except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and
effect as if made on such date.
(d) In the event that there is any money or other
property held by or for the Trust that is not accounted for
hereunder, such property shall be distributed Pro Rata (as
defined herein) among the Holders of the Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
In the event of any voluntary or involuntary
dissolution, winding-up or termination of the Trust, the Holders
of the Securities on the date of the dissolution, winding-up or
termination, as the case may be, will be entitled to receive out
of the assets of the Trust available for distribution to Holders
of Securities after satisfaction of liabilities of creditors an
amount equal to the aggregate of the stated liquidation amount of
$25 per Security plus accrued and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such dissolution,
winding-up or termination, Debentures in an aggregate stated
principal amount equal to the aggregate stated liquidation amount
of such Securities, with an interest rate equal to the Coupon
Rate of, accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on, such Securities, shall be
distributed on a Pro Rata basis to the Holders of the Securities
in exchange for such Securities.
If, upon any such dissolution, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by
the Trust on the Securities shall be paid on a Pro Rata basis.
4. REDEMPTION AND DISTRIBUTION.
(a) Upon the repayment of the Debentures in whole or
in part, whether at maturity or upon redemption (either at the
option of the Debenture Issuer or pursuant to a Tax Event as
described below), the proceeds from such repayment shall be
simultaneously applied to redeem Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed at a redemption price of $25 per
Security plus an amount equal to accrued and unpaid Distributions
thereon at the date of the redemption, payable in cash (the
"Redemption Price"). Holders will be given not less than 30 nor
more than 60 days' notice of such redemption.
(b) If fewer than all the outstanding Securities are
to be so redeemed, the Common Securities and the Preferred
Securities will be redeemed Pro Rata and the Preferred Securities
to be redeemed will be as described in Section 4(f)(ii) below.
(c) If, at any time, a Tax Event (as defined below)
shall occur and be continuing, at the option of the Sponsor,
within 90 days following the occurrence of such Tax Event, either
(i) the Regular Trustees may dissolve the Trust, and, after
satisfaction of creditors, cause Debentures held by the
Institutional Trustee, having an aggregate principal amount equal
to the aggregate stated liquidation amount of, with an interest
rate identical to the Coupon Rate of, and accrued and unpaid
interest equal to accrued and unpaid Distributions on, and having
the same record date for payment as the Trust Securities, to be
distributed to the Holders of the Securities in liquidation of
such Holders' interests in the Trust on a Pro Rata basis, or (ii)
the Debenture Issuer may, upon not less than 30 nor more than 60
days' notice, redeem the Debentures, in whole but not in part,
for cash, and, following such redemption, Securities with an
aggregate liquidation amount equal to the aggregate principal
amount of the Debentures so redeemed shall be redeemed by the
Trust at the Redemption Price on a Pro Rata basis; and provided,
however, further, that, if at the time there is available to the
Trust the opportunity to eliminate, within the 90 day period, the
Tax Event by taking some ministerial action, such as filing a
form or making an election, or pursuing some other similar
reasonable measure that has no adverse effect on the Trust, the
Debenture Issuer, the Sponsor or the Holders of the Securities
("Ministerial Action"), the Trust or the Debenture Issuer will
pursue such Ministerial Action in lieu of such dissolution and
distribution or redemption.
"TAX EVENT" means the receipt by the Sponsor of an
opinion of counsel to the effect that, as a result of (a) any
amendment to, clarification of or change (including any announced
prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, (b) any judicial
decision, official administrative pronouncement, ruling,
regulatory procedure, notice or announcement, including any
notice or announcement of intent to adopt such procedures or
regulations (an "Administrative Action") or (c) any amendment to,
clarification of, or change in the official position or the
interpretation of such Administrative Action or judicial decision
that differs from the theretofore generally accepted position, in
each case, by any legislative body, court, governmental authority
or regulatory body, irrespective of the manner in which such
amendment, clarification or change is made known, which
amendment, clarification, or change is effective or such
pronouncement or decision is announced, in each case, on or
after, the date of the original issuance of the Debentures
(including the enactment of any legislation and the publication
of any judicial decision or regulatory determination on or after
such date), there is more than an insubstantial risk that (i) the
Trust is or will be within 90 days of the date of such amendment,
clarification or change, subject to United States federal income
tax with respect to interest accrued or received on the
Debentures, (ii) the Trust is, or will be within 90 days of the
date of such amendment, clarification or change, subject to more
than a de minimis amount of taxes, duties or other governmental
charges, or (iii) interest payable by the Debenture Issuer to the
Trust on the Debentures is not, or within 90 days of the date of
such amendment, clarification or change will not be, deductible,
in whole or in part, by the Debenture Issuer for United States
federal income tax purposes.
On and from the date fixed by the Regular Trustees for
any distribution of Debentures and dissolution of the Trust:
(i) the Securities will be deemed to be no longer outstanding and
(ii) any certificates representing Securities will be deemed to
represent beneficial interests in the Debentures having an
aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to the
Coupon Rate of, and accrued and unpaid interest equal to accrued
and unpaid Distributions on, and having the same record date for
payment as such Securities until such certificates are presented
to the Debenture Issuer or its agent for transfer or reissue.
(d) The Trust may not redeem fewer than all the
outstanding Securities unless all accrued and unpaid
Distributions have been paid on all Securities for all quarterly
Distribution periods terminating on or before the date of
redemption.
(e) If the Debentures are distributed to holders of
the Securities, the Debenture Issuer will use all reasonable
efforts to have the Debentures listed on the New York Stock
Exchange or on such other exchange as the Preferred Securities
were listed immediately prior to the distribution of the
Debentures.
(f) "REDEMPTION OR DISTRIBUTION PROCEDURES."
(i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for the Securities (a
"Redemption/Distribution Notice"), will be given by the
Trust by mail to each Holder of Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption
of the Debentures. For purposes of the calculation of the
date of redemption or exchange and the dates on which
notices are given pursuant to this Section 4(f)(i), a
Redemption/ Distribution Notice shall be deemed to be given
on the day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder
appearing in the books and records of the Trust. No defect
in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with
respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed
shall be redeemed Pro Rata from each Holder of Preferred
Securities. The particular Preferred Securities to be
redeemed shall be selected on a Pro Rata basis not more than
60 days prior to the redemption date by the Institutional
Trustee from the outstanding Preferred Securities not
previously called for redemption, by such method as the
Institutional Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of
portions (equal to $25 or an integral multiple of $25 in
excess thereof) of the liquidation preference amount of
Preferred Securities of a denomination larger than $25. The
Institutional Trustee shall notify the Transfer Agent and
Registrar in writing of the Preferred Securities selected
for redemption, and in the case of any Preferred Securities
selected for partial redemption, the liquidation preference
amount thereof to be redeemed. For all purposes of the
Declaration, unless the context otherwise requires, all
provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, or to
the portion of the aggregate liquidation preference amount
of Preferred Securities which has been or is to be redeemed.
(iii) If Securities are to be redeemed and the
Trust gives a Redemption/Distribution Notice, then provided
that the Debenture Issuer has paid the Institutional Trustee
a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional
Trustee will pay the relevant Redemption Price to the
holders of such Securities by check mailed to the address of
the relevant Holders appearing on the books and records of
the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and
funds deposited as required, if applicable, then immediately
prior to the close of business on the date of such deposit,
or on the redemption date, as applicable, distributions will
cease to accrue on the Securities so called for redemption
and all rights of Holders of such Securities so called for
redemption will cease, except the right of the Holders of
such Securities to receive the Redemption Price, but without
interest on such Redemption Price. Neither the Regular
Trustees nor the Trust shall be required to register or
cause to be registered the transfer of any Securities that
have been so called for redemption. If any date fixed for
redemption of Securities is not a Business Day, then payment
of the Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay)
except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as
if made on such date fixed for redemption. If payment of
the Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the
Institutional Trustee or by the Sponsor as guarantor
pursuant to the relevant Securities Guarantee, Distributions
on such Securities will continue to accrue from the original
redemption date to the actual date of payment, in which case
the actual payment date will be considered the date fixed
for redemption for purposes of calculating the Redemption
Price.
(iv) Redemption/Distribution Notices shall be sent by
the Regular Trustees on behalf of the Trust to (A) in
respect of the Preferred Securities, to the Holder thereof,
and (B) in respect of the Common Securities to the Holder
thereof.
(v) Subject to the foregoing and applicable law
(including, without limitation, United States federal
securities laws), provided the acquiror is not the Holder of
the Common Securities or the obligor under the Indenture,
the Sponsor or any of its subsidiaries may at any time and
from time to time purchase outstanding Preferred Securities
by tender, in the open market or by private agreement.
5. VOTING RIGHTS - PREFERRED SECURITIES.
(a) Except as provided under Sections 5(b) and 7 and
as otherwise required by law and the Declaration, the Holders of
the Preferred Securities will have no voting rights.
(b) Subject to the requirements set forth in this
paragraph, the Holders of a majority in aggregate liquidation
amount of the Preferred Securities, voting separately as a class,
may direct the time, method, and place of conducting any
proceeding for any remedy available to the Institutional Trustee,
or exercising any trust or power conferred upon the Institutional
Trustee under the Declaration, including the right to direct the
Institutional Trustee, as holder of the Debentures, to (i)
exercise the remedies available under the Indenture of conducting
any proceeding for any remedy available to the Debenture Trustee,
or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waive any past
default and its consequences that is waivable under Section 813
of the Indenture, or (iii) exercise any right to rescind or annul
a declaration that the principal of all the Debentures shall be
due and payable. The Institutional Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders
of the Preferred Securities. Other than with respect to
directing the time, method and place of conducting any remedy
available to the Institutional Trustee or the Debenture Trustee
as set forth above, the Institutional Trustee shall not take any
action in accordance with the directions of the Holders of the
Preferred Securities under this paragraph unless the
Institutional Trustee has obtained an opinion of tax counsel to
the effect that for the purposes of United States federal income
tax the Trust will not be treated as an association taxable as a
corporation on account of such action. If an Event of Default
has occurred and is continuing and such event is attributable to
the failure of the Debenture Issuer to pay interest or principal
on the Debentures on the date such interest or principal is
otherwise payable (or in the case of redemption, on the
redemption date), then a holder of Preferred Securities may
directly institute a proceeding for enforcement of payment to
such Holder of the principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such holder (a "Direct
Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the rights of
the holders of the Common Securities Holder will be subrogated to
the rights of such holder of Preferred Securities to the extent
of any payment made by the Issuer to such holder of Preferred
Securities in such Direct Action. Except as provided in the
preceding sentences, the Holders of Preferred Securities will not
be able to exercise directly any other remedy available to the
holders of the Debentures.
Any approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of
Preferred Securities convened for such purpose, at a meeting of
all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to
vote, or of any matter upon which action by written consent of
such Holders is to be taken, to be mailed to each Holder of
record of Preferred Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of
proxies or consents.
No vote or consent of the Holders of the Preferred
Securities will be required for the Trust to redeem and cancel
Preferred Securities or to distribute the Debentures in
accordance with the Declaration and the terms of the Securities.
Notwithstanding that Holders of Preferred Securities
are entitled to vote or consent under any of the circumstances
described above, any of the Preferred Securities that are owned
by the Sponsor or any Affiliate of the Sponsor shall not be
entitled to vote or consent and shall, for purposes of such vote
or consent, be treated as if they were not outstanding.
6. VOTING RIGHTS - COMMON SECURITIES.
(a) Except as provided under Sections 6(b), (c), 7(a)
and 8 as otherwise required by law and the Declaration, the
Holders of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled,
in accordance with Article V of the Declaration, to vote to
appoint, remove or replace any Trustee or to increase or decrease
the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only
after the Event of Default with respect to the Preferred
Securities has been cured, waived, or otherwise eliminated and
subject to the requirements of the second to last sentence of
this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may
direct the time, method, and place of conducting any proceeding
for any remedy available to the Institutional Trustee, or
exercising any trust or power conferred upon the Institutional
Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or
power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that
is waivable under Section 713 of the Indenture, or (iii) exercise
any right to rescind or annul a declaration that the principal of
all the Debentures shall be due and payable. Pursuant to this
Section 6(c), the Institutional Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders
of the Preferred Securities. Other than with respect to
directing the time, method and place of conducting any remedy
available to the Institutional Trustee or the Debenture Trustee
as set forth above, the Institutional Trustee shall not take any
action in accordance with the directions of the Holders of the
Common Securities under this paragraph unless the Institutional
Trustee has obtained an opinion of tax counsel to the effect that
for the purposes of United States federal income tax the Trust
will not be treated as an association taxable as a corporation on
account of such action. If the Institutional Trustee fails to
enforce its rights under the Declaration, any Holder of Common
Securities may institute a legal proceeding directly against any
Person to enforce the Institutional Trustee's rights under the
Declaration, without first instituting a legal proceeding against
the Institutional Trustee or any other Person.
Any approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of
Common Securities convened for such purpose, at a meeting of all
of the Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting
at which Holders of Common Securities are entitled to vote, or of
any matter upon which action by written consent of such Holders
is to be taken, to be mailed to each Holder of record of Common
Securities. Each such notice will include a statement setting
forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is
sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Common
Securities will be required for the Trust to redeem and cancel
Common Securities or to distribute the Debentures in accordance
with the Declaration and the terms of the Securities.
7. AMENDMENTS TO DECLARATION AND INDENTURE.
(a) In addition to any requirements under Section 12.1
of the Declaration, if any proposed amendment to the Declaration
provides for, or the Regular Trustees otherwise propose to
effect, (i) any action that would adversely affect the powers,
preferences or special rights of the Securities in any material
respect, whether by way of amendment to the Declaration or
otherwise, or (ii) the dissolution, winding-up or termination of
the Trust, other than as described in Section 8.1 of the
Declaration, then the Holders of outstanding Securities voting
together as a single class, will be entitled to vote on such
amendment or proposal (but not on any other amendment or
proposal) and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a Majority in
liquidation amount of the Securities, affected thereby, provided,
however, that if any amendment or proposal referred to in clause
(i) above would so adversely affect only the Preferred Securities
or only the Common Securities, then only the affected class will
be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the
approval of a Majority in liquidation amount of such class of
Securities.
(b) In the event the consent of the Institutional
Trustee as the holder of the Debentures is required under the
Indenture with respect to any amendment, modification or
termination on the Indenture or the Debentures, the Institutional
Trustee shall request the written approval of the Holders of the
Securities with respect to such amendment, modification or
termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in
liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the
Indenture would require the consent of each holder of the
Debentures, the Institutional Trustee may only give such consent
with the approval of each Holder of outstanding Securities; and
provided, further, that, the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of
the Securities under this Section 7(b) unless the Institutional
Trustee has obtained an opinion of tax counsel to the effect that
for the purposes of United States federal income tax the Trust
will not be treated as an association taxable as a corporation on
account of such action.
8. PRO RATA.
A reference in these terms of the Securities to any
payment, distribution or treatment as being "Pro Rata" shall mean
pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder
in relation to the aggregate liquidation amount of all Securities
outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which
case any funds available to make such payment shall be paid first
to each Holder of the Preferred Securities pro rata according to
the aggregate liquidation amount of Preferred Securities held by
the relevant Holder relative to the aggregate liquidation amount
of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata
according to the aggregate liquidation amount of Common
Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Common Securities outstanding.
9. RANKING.
The Preferred Securities rank pari passu and payment
thereon shall be made Pro Rata with the Common Securities except
that, where an Event of Default occurs and is continuing, the
rights of Holders of the Common Securities and the rights of the
Sponsor or any Affiliate of the Sponsor, to the extent of their
beneficial ownership of Preferred Securities, to payment in
respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to
payment of other Holders of the Preferred Securities.
10. LISTING.
The Regular Trustees shall use all reasonable efforts
to cause the Preferred Securities to be listed for quotation on
the New York Stock Exchange.
11. ACCEPTANCE OF SECURITIES GUARANTEE AND INDENTURE.
Each Holder of Preferred Securities and Common
Securities, by the acceptance thereof, agrees to the provisions
of the Preferred Securities Guarantee, the Common Securities
Guarantee and the Indenture, respectively, including the
subordination provisions therein.
12. NO PREEMPTIVE RIGHTS.
The Holders of the Securities shall have no preemptive
rights to subscribe for any additional securities.
13. MISCELLANEOUS.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee or the Common Securities Guarantee
(as may be appropriate), and the Indenture to a Holder without
charge on written request to the Sponsor at its principal place
of business.
[PAGE BREAK]
Exhibit A-1
[PAGE BREAK]
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
This Preferred Security is a Global Certificate within
the meaning of the Declaration hereinafter referred to and is
registered in the name of The Depository Trust Company (the
"Depositary") or a nominee of the Depositary. This Preferred
Security is exchangeable for Preferred Securities registered in
the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Declaration
and no transfer of this Preferred Security (other than a transfer
of this Preferred Security as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Preferred Security is presented by an
authorized representative of The Depository Trust Company (55
Water Street, New York, New York) to the Trust or its agent for
registration of transfer, exchange or payment, and any Preferred
Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
CUSIP NO. ___________
Certificate Evidencing Preferred Securities
of
WASHINGTON WATER POWER CAPITAL III
____% Trust Originated Preferred Securities, Series C ("TOPrS ")
(liquidation amount $25 per Preferred Security)
WASHINGTON WATER POWER CAPITAL III, a statutory
business trust formed under the laws of the State of Delaware
(the "Trust"), hereby certifies that (the "Holder")
is the registered owner of preferred securities of the Trust
representing undivided beneficial interests in the assets of the
Trust designated the ____% Trust Originated Preferred
Securities, Series C (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities
are transferable on the books and records of the Trust, in person
or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities
represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration
of Trust of the Trust dated as of ______, 199_, as the same may
be amended from time to time (the "Declaration"), including the
designation of the terms of the Preferred Securities as set forth
in Annex I to the Declaration. Capitalized terms used herein but
not defined shall have the meaning given them in the Declaration.
The Holder is entitled to the benefits of the Preferred
Securities Guarantee to the extent provided therein. The Sponsor
will provide a copy of the Declaration, the Preferred Securities
Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound
by the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as
indebtedness and the Preferred Securities as evidence of indirect
beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this
certificate this ____ day of _______, 199_.
WASHINGTON WATER POWER CAPITAL III
By:
Name:
Title: Regular Trustee
[PAGE BREAK]
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will
be fixed at a rate per annum of ____% (the "Coupon Rate") of the
stated liquidation amount of $25 per Preferred Security, such
rate being the rate of interest payable on the Debentures to be
held by the Institutional Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by
applicable law). The term "Distributions" as used herein
includes such cash distributions and any such interest payable
unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held
by the Institutional Trustee and to the extent the Institutional
Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any
full quarterly Distribution period on the basis of a 360-day year
of twelve 30-day months, and for any period shorter than a full
quarterly Distribution period for which Distributions are
computed, Distributions will be computed on the basis of the
actual number of days elapsed per 90-day quarter.
Except as otherwise described below, distributions on
the Preferred Securities will be cumulative, will accrue from the
date of original issuance and will be payable quarterly in
arrears, on March 31, June 30, September 30 and December 31 of
each year, commencing on ________ __, 199_, to ________ __, 20__,
to holders of record on the relevant record dates (as specified
in the Declaration) next preceding such payment dates, which
payment dates shall correspond to the interest payment dates on
the Debentures. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period
not exceeding 20 consecutive quarters (each an "Extension
Period") and as a consequence of such deferral, Distributions
will also be deferred, provided, however, that no Extension
Period shall last beyond the date of the maturity of the
Debentures. Despite such deferral, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted
by applicable law) at the Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further extend such
Extension Period; provided, however, that such Extension Period
together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the
maturity of the Debentures. Payments of accrued Distributions
will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end of
the Extension Period. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above
requirements.
The Preferred Securities shall be redeemable as
provided in the Declaration.
The Declaration and the Preferred Securities shall be
governed by and construed in accordance with the laws of the
State of Delaware, and all rights and remedies shall be governed
by such laws without regard to principles of conflict of laws.
[PAGE BREAK]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
___________________________________________
____________________________________________
___________________________________________
(Insert assignee's social security or tax identification number)
__________________________________________
__________________________________________
__________________________________________
__________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________
________________________________________
________________________________________ agent
to transfer this Preferred Security Certificate on the books of
the Trust. The agent may substitute another to act for him or
her.
Date: ______________________
Signature: ______________________________
(Sign exactly as your name appears on the other side of this Preferred
Security Certificate)
Signature Guarantee:*
-------------------------
*Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or participation
in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities and Exchange Act of 1934, as
amended.
[PAGE BREAK]
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
WASHINGTON WATER POWER CAPITAL III
____% Trust Originated Common Securities, Series C
(liquidation amount $25 per Common Security)
WASHINGTON WATER POWER CAPITAL III, a statutory
business trust formed under the laws of the State of Delaware
(the "Trust"), hereby certifies that The Washington Water Power
Company (the "Holder") is the registered owner of common
securities of the Trust representing undivided beneficial
interests in the assets of the Trust designated the ____% Trust
Originated Common Securities, Series C (liquidation amount $25
per Common Security) (the "Common Securities"). The Common
Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all
respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of ________, 199_, as
the same may be amended from time to time (the "Declaration"),
including the designation of the terms of the Common Securities
as set forth in Annex I to the Declaration. Capitalized terms
used herein but not defined shall have the meaning given them in
the Declaration. The Holder is entitled to the benefits of the
Common Securities Guarantee to the extent provided therein. The
Sponsor will provide a copy of the Declaration, the Common
Securities Guarantee and the Indenture to a Holder without charge
upon written request to the Sponsor at its principal place of
business.
Upon receipt of this certificate, the Sponsor is bound
by the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as
indebtedness and the Common Securities as evidence of indirect
beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this
certificate this ___ day of _____________, 199_.
WASHINGTON WATER POWER CAPITAL III
By:
Name:
Title: Regular Trustee
[PAGE BREAK]
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be
fixed at a rate per annum of ____% (the "Coupon Rate") of the
stated liquidation amount of $25 per Common Security, such rate
being the rate of interest payable on the Debentures to be held
by the Institutional Trustee. Distributions in arrears for more
than one quarter will bear interest thereon compounded quarterly
at the Coupon Rate (to the extent permitted by applicable law).
The term "Distributions" as used herein includes such cash
distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. The amount of Distributions
payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number
of days elapsed per 90-day quarter.
Except as otherwise described below, distributions on
the Common Securities will be cumulative, will accrue from the
date of original issuance and will be payable quarterly in
arrears, on March 31, June 30, September 30 and December 31 of
each year, commencing on ________ __, 199_, to ________ __, 20__,
to Holders of record on the relevant record dates (as specified
in the Declaration) next preceding such payment dates, which
payment dates shall correspond to the interest payment dates on
the Debentures. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period
not exceeding 20 consecutive quarters (each an "Extension
Period") and as a consequence of such deferral, Distributions
will also be deferred; provided, however, that no Extension
Period shall last beyond the date of the maturity of the
Debentures. Despite such deferral, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted
by applicable law) at the Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further extend such
Extension Period; provided, however, that such Extension Period
together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the
maturity date of the Debentures. Payments of accrued
Distributions will be payable to Holders as they appear on the
books and records of the Trust on the first record date after the
end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to
the above requirements.
The Common Securities shall be redeemable as provided
in the Declaration.
The Declaration and the Common Securities shall be
governed by and construed in accordance with the laws of the
State of Delaware, and all rights and remedies shall be governed
by such laws without regard to principles of conflict of laws.
[PAGE BREAK]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Common Security Certificate to:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints ______________________________________
_______________________________________________________________
______________________________________________ agent to transfer
this Common Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date: ________________
Signature: _________________________
(Sign exactly as your name appears on the other side of this
Common Security Certificate)
Signature Guarantee:*
--------------------
* Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or partici-
pation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may
be determined by the Registrar in addition to, or in substi-
tution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
EXHIBIT 4(a)-10
------------------------------------------------
THE WASHINGTON WATER POWER COMPANY
TO
WILMINGTON TRUST COMPANY,
TRUSTEE
_______________
Indenture
DATED AS OF _______ 1, 199_
_______________
------------------------------------------------
THE WASHINGTON WATER POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF ________ 1, 199_
----------------------------------------------------------------
TRUST INDENTURE ACT SECTION INDENTURE SECTION(S)
--------------------------- --------------------
310(a)(1) . . . . . . . . . . . . . . 809
(a)(2) . . . . . . . . . . . . . . 809
(a)(3) . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . 808, 810
311(a) . . . . . . . . . . . . . . 813
(b) . . . . . . . . . . . . . . 813
(c) . . . . . . . . . . . . . . 813
312(a) . . . . . . . . . . . . . . 901
(b) . . . . . . . . . . . . . . 901
(c) . . . . . . . . . . . . . . 901
313(a) . . . . . . . . . . . . . . 902
(b) . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . 902
(d) . . . . . . . . . . . . . . 902
314(a) . . . . . . . . . . . . . . 902, 507
(b) . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . 102
315(a) . . . . . . . . . . . . . . 801, 803
(b) . . . . . . . . . . . . . . 802
(c) . . . . . . . . . . . . . . 801
(d) . . . . . . . . . . . . . . 801
(e) . . . . . . . . . . . . . . 714
316(a) . . . . . . . . . . . . . . 712, 713
(a)(1)(A) . . . . . . . . . . . . . . 702, 712
(a)(1)(B) . . . . . . . . . . . . . . 713
(a)(2) . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . 708
317(a)(1) . . . . . . . . . . . . . . 703
(a)(2) . . . . . . . . . . . . . . 705
(b) . . . . . . . . . . . . . . 503
318(a) . . . . . . . . . . . . . . 107
TABLE OF CONTENTS
PAGE
----
Recital of the Company . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. General Definitions . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . 3
Common Securities . . . . . . . . . . . . . . . . 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 . . . . . . . . . 5
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
Preferred Securities . . . . . . . . . . . . . . . 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 . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . 9
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 . . . 14
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 . . . . . . . . . . . . . 15
SECTION 111. Benefits of Indenture . . . . . . . . . . . . 15
SECTION 112. Governing Law . . . . . . . . . . . . . . . . 15
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . 15
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . 16
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . 16
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . 17
SECTION 302. Denominations . . . . . . . . . . . . . . . . 20
SECTION 303. Execution, Dating, Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . 21
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 . . . . . . . . . . . . 28
SECTION 309. Cancellation by Security Registrar . . . . . . 28
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 . . . . . . . . . . . 29
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 . . . . . . . . . 32
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 . . . . . . . . . . 35
SECTION 506. Waiver of Certain Covenants . . . . . . . . . 35
SECTION 507. Annual Officer's Certificate as to Compliance. 36
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 . . . . . . . . . . . . . . 41
SECTION 702. Acceleration of Maturity; Rescission and Annulment
42
SECTION 703. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . 44
SECTION 704. Application of Money Collected . . . . . . . . 44
SECTION 705. Trustee May File Proofs of Claim . . . . . . . 45
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 Preferred Securities. . . 49
ARTICLE EIGHT
THE TRUSTEE
SECTION 801. Certain Duties and Responsibilities . . . . . 50
SECTION 802. Notice of Defaults . . . . . . . . . . . . . . 51
SECTION 803. Certain Rights of Trustee . . . . . . . . . . 51
SECTION 804. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . 53
SECTION 805. May Hold Securities . . . . . . . . . . . . . 53
SECTION 806. Money Held in Trust . . . . . . . . . . . . . 53
SECTION 807. Compensation and Reimbursement . . . . . . . . 53
SECTION 808. Disqualification; Conflicting Interests . . . 54
SECTION 809. Corporate Trustee Required; Eligibility . . . 54
SECTION 810. Resignation and Removal; Appointment of Successor
55
SECTION 811. Acceptance of Appointment by Successor . . . . 57
SECTION 812. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . 58
SECTION 813. Preferential Collection of Claims against Company
58
SECTION 814. Appointment of Authenticating Agent . . . . . 59
ARTICLE NINE
LISTS OF HOLDERS; REPORTS BY TRUSTEE AND COMPANY
SECTION 901. Lists of Holders . . . . . . . . . . . . . . . 61
SECTION 902. Reports by Trustee and Company . . . . . . . . 61
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE
OR OTHER TRANSFER
SECTION 1001. Company may Consolidate, etc., Only on Certain
Terms . . . . . . . . . . . . . . . . . . . . 62
SECTION 1002. Successor Corporation Substituted . . . . . . 63
SECTION 1003. Release of Company upon Conveyance or Other
Transfer . . . . . . . . . . . . . . . . . . 63
SECTION 1004. Merger into Company . . . . . . . . . . . . . 63
SECTION 1005. Transfer of Less than the Entirety . . . . . 63
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. Supplemental Indentures without Consent of
Holders . . . . . . . . . . . . . . . . . . . 66
SECTION 1102. Supplemental Indentures with Consent of Holders
68
SECTION 1103. Execution of Supplemental Indentures . . . . 70
SECTION 1104. Effect of Supplemental Indentures . . . . . . 70
SECTION 1105. Conformity with Trust Indenture Act . . . . . 70
SECTION 1106. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . 70
SECTION 1107. Modification Without Supplemental Indenture . 70
ARTICLE TWELVE
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1201. Purposes for Which Meetings May Be Called. . 71
SECTION 1202. Call, Notice and Place of Meetings . . . . . 71
SECTION 1203. Persons Entitled to Vote at Meetings . . . . 72
SECTION 1204. Quorum; Action . . . . . . . . . . . . . . . 72
SECTION 1205. Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings . 73
SECTION 1206. Counting Votes and Recording Action of Meetings
74
SECTION 1207. Action without Meeting . . . . . . . . . . . 75
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 1301. Liability Solely Corporate . . . . . . . . . 75
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401. Securities Subordinate to Senior Indebtedness.
75
SECTION 1402. Payment Over of Proceeds of Securities. . . . 76
SECTION 1403. Disputes with Holders of Certain Senior
Indebtedness. . . . . . . . . . . . . . . . . 78
SECTION 1404. Subrogation. . . . . . . . . . . . . . . . . 78
SECTION 1405. Obligation of the Company Unconditional. . . 78
SECTION 1406. Priority of Senior Indebtedness Upon Maturity.
79
SECTION 1407. Trustee as Holder of Senior Indebtedness. . . 79
SECTION 1408. Notice to Trustee to Effectuate Subordination.
79
SECTION 1409. Modification, Extension, etc. of Senior
Indebtedness. . . . . . . . . . . . . . . . . 80
SECTION 1410. Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness. . . . . . . . . . . . . . . . . 80
SECTION 1411. Paying Agents Other Than the Trustee. . . . . 80
SECTION 1412. Rights of Holders of Senior Indebtedness Not
Impaired. . . . . . . . . . . . . . . . . . . 81
SECTION 1413. Effect of Subordination Provisions; Termination.
81
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . 82
INDENTURE, dated as of _________ 1, 199_ between THE
WASHINGTON WATER POWER COMPANY, a corporation organized and existing
under the laws of the State of Washington (hereinafter sometimes
called the "Company"), and Wilmington Trust Company, a Delaware
banking corporation, trustee (hereinafter sometimes called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of
unsecured subordinated debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in one or
more series as contemplated herein; all acts necessary to make this
Indenture a valid agreement of the Company have been performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH that, in
consideration of the premises and of the purchase of the Securities by
the Holders thereof, it is hereby covenanted and agreed by and between
the Company and the Trustee that all the Securities are to be
authenticated and delivered subject to the further covenants,
conditions and trusts hereinafter set forth, and the Company hereby
covenants and agrees to and with the Trustee, for the equal and
ratable benefit of all Holders of the Securities or of series thereof,
as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. GENERAL DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
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 date of the execution and delivery of this
Indenture; provided, however, that in determining generally
accepted accounting principles applicable to the Company,
effect shall be given, to the extent required, to any order,
rule or regulation of any administrative agency, regulatory
authority or other governmental body having jurisdiction
over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
"ACT", when used with respect to any Holder of a Security,
has the meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "CONTROL" when used with respect to any specified
Person means the power to direct generally the management and policies
of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee to
act on behalf of the Trustee to authenticate the Securities of one or
more series.
"AUTHORIZED OFFICER" means the Chairman of the Board, the
President, any Vice President, the Treasurer or the Corporate
Secretary or any other duly authorized officer, agent or attorney-in-
fact of the Company named in an Officer's Certificate signed by any of
such corporate officers.
"BOARD OF DIRECTORS" means either the board of directors of
the Company or any committee thereof duly authorized to act in respect
of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by
the Corporate Secretary or an Assistant Corporate Secretary of the
Company to have been duly adopted by the Board of Directors and to be
in full force and effect on the date of such certification, and
delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of Payment
or any other particular location specified in the Securities or this
Indenture, means any day, other than a Saturday or Sunday, which is
not a day on which banking institutions or trust companies in such
Place of Payment or other location are generally authorized or
required by law, regulation or executive order to remain closed,
except as may be otherwise specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, as amended, or, if at any time after the date of
the execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body, if any, performing such duties at such
time.
"COMMON SECURITIES", with respect to a Washington Water
Power Trust, has the meaning set forth in the Declaration of such
Trust.
"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
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 the Preferred Securities of such trust.
"HOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDENTURE" means the Indenture, dated as of _________ 1,
199_ as originally executed and delivered and as it has been and may
from time to time be amended and/or supplemented by one or more
indentures or other instruments supplemental thereto or hereto entered
into pursuant to the applicable provisions hereof and shall include
the terms of particular series of Securities established as
contemplated by Section 301.
"INDEPENDENT EXPERT'S CERTIFICATE" has the meaning specified
in Section 1005.
"INSTITUTIONAL TRUSTEE", with respect to a Washington Water
Power Trust, has the meaning set forth in the Declaration establishing
such trust.
"INTEREST PAYMENT DATE", when used with respect to any
Security, means the Stated Maturity of an installment of interest on
such Security.
"MATURITY", when used with respect to any Security, means
the date on which the principal of such Security or an installment of
principal becomes due and payable as provided in such Security or in
this Indenture, whether at the Stated Maturity, by declaration of
acceleration, upon call for redemption or otherwise.
"NOTICE OF DEFAULT" has the meaning specified in Section
701.
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for the Company or other counsel acceptable to the
Trustee and who may be an employee or Affiliate of the Company.
"OUTSTANDING", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled or delivered to
the Trustee for cancellation;
(b) Securities deemed to have been paid for all
purposes of this Indenture in accordance with Section 601
(whether or not the Company's indebtedness in respect
thereof shall be satisfied and discharged for any other
purpose); and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser or purchasers in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of
the requisite principal amount of the Securities Outstanding under
this Indenture, or the Outstanding Securities of any series or
Tranche, have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a quorum is
present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company
or of such other obligor (unless the Company, such obligor
or such Affiliate owns all Securities Outstanding under this
Indenture, or all Outstanding Securities of each such series
and each such Tranche, as the case may be, determined
without regard to this clause (x)) shall be disregarded and
deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded; provided,
however, that Securities so owned which have been pledged in
good faith may be regarded as Outstanding if it is
established to the reasonable satisfaction of the Trustee
that the pledgee, and not the Company, any such other
obligor or Affiliate of either thereof, has the right so to
act with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor; and
(y) the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purposes shall be
the amount of the principal thereof that would be due and
payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 702; and
provided, further, that, in the case of any Security the principal of
which is payable from time to time without presentment or surrender,
the principal amount of such Security that shall be deemed to be
Outstanding at any time for all purposes of this Indenture shall be
the original principal amount thereof less the aggregate amount of
principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the Company,
authorized by the Company to pay the principal of and premium, if any,
or interest, if any, on any Securities on behalf of the Company.
"PERIODIC OFFERING" means an offering of Securities of a
series from time to time any or all of the specific terms of which
Securities, including without limitation the rate or rates of
interest, if any, thereon, the Stated Maturity or Maturities thereof
and the redemption 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.
"PREFERRED SECURITIES", with respect to a Washington Water
Power Trust, has the meaning set forth in the Declaration establishing
such trust.
"REDEMPTION DATE", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any
Interest Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section
311.
"RESPONSIBLE OFFICER", when used with respect to the
Trustee, means any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"SECURITIES" means any bonds, notes and other evidences of
indebtedness authenticated and delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SENIOR INDEBTEDNESS" means, with respect to any Person (a)
indebtedness (including premium, if any, and interest, if any,
thereon) of such Person for money borrowed or for the deferred
purchase price of property or services; (b) all other indebtedness
(including premium, if any, and interest, if any, thereon) evidenced
by bonds, debentures, notes or other similar instruments (other than
Securities) issued by such Person; (c) all obligations of such Person
under lease agreements designating such Person as lessee, irrespective
of the treatment of any such lease agreement for accounting, tax or
other purposes; (d) all obligations of such Person for reimbursement
(including premium, if any, and interest, if any thereon) in respect
of any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction; (e) all obligations of the
character referred to in clauses (a) through (d) above of other
Persons for the payment of which such Person is responsible or liable
as obligor, guarantor or otherwise; and (f) all obligations of the
character referred to in clauses (a) through (d) above of other
Persons secured by any lien on any property or asset of such Person
(whether or not such obligation is assumed by such Person); provided,
however, that Senior Indebtedness shall not include (x) any such
indebtedness that is by its terms subordinated to or pari passu with
the Securities or (y) any indebtedness between or among such Person
and its Affiliates, including all other debt securities and guarantees
in respect of such debt securities, issued to (i) any Washington Water
Power Trust or (ii) any other trust, or a trustee of such trust,
partnership or other entity which is a financing vehicle of such
Person in connection with the issuance by such financing vehicle of
preferred securities.
"SPECIAL RECORD DATE" for the payment of any Unpaid Interest
on the Securities of any series means a date fixed by the Trustee
pursuant to Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear simple
interest. Any calculation or other determination to be made under
this Indenture by reference to the Stated Interest Rate on an
obligation shall be made (1) 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 (2) without regard to the effective interest
cost to the Company of such obligation or of any such other
indebtedness.
"STATED MATURITY", when used with respect to any obligation
or any installment of principal thereof or interest thereon, means the
date on which the principal of such obligation or such installment of
principal or interest is stated to be due and payable (without regard
to any provisions for redemption, prepayment, acceleration, purchase
or extension).
"SUCCESSOR CORPORATION" has the meaning set forth in Section
1001.
"TRANCHE" means a group of Securities which (a) are of the
same series and (b) have identical terms except as to principal amount
and/or date of issuance.
"TRUST INDENTURE ACT" means, as of any time, the Trust
Indenture Act of 1939, or any successor statute, as in effect at such
time.
"TRUST SECURITIES", with respect to a Washington Water Power
Trust, means the Preferred Securities and Common Securities issued by
such trust.
"TRUSTEE" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor trustee shall have
become such with respect to one or more series of Securities pursuant
to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee
hereunder, and, if at any time there is more than one Person acting as
trustee hereunder, "Trustee" shall mean each such Person so acting.
"UNITED STATES" means the United States of America, its
Territories, its possessions and other areas subject to its political
jurisdiction.
"UNPAID INTEREST" has the meaning specified in Section 307.
"WASHINGTON WATER POWER TRUST" means each of Washington
Water Power Capital I, Washington Water Power Capital II and
Washington Water Power Capital III, each a business trust established
under the laws of the State of Delaware, and any other similar trust
established for the purpose of issuing securities upon the issuance
and delivery to it of Securities.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture,
upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, it being
understood that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such
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 matters covered in an
Opinion of Counsel rendered by other counsel, upon such other Opinion
of Counsel, unless such counsel has actual knowledge that the Opinion
of Counsel rendered by such other counsel with respect to the matters
upon which his Opinion of Counsel may be based as aforesaid are
erroneous. If, in order to render any Opinion of Counsel provided for
herein, the signer thereof shall deem it necessary that additional
facts or matters be stated in any Officer's Certificate provided for
herein, then such certificate may state all such additional facts or
matters as the signer of such Opinion of Counsel may request.
(b) In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give
an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents. Where any
Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
(c) Whenever, subsequent to the receipt by the Trustee of
any Board Resolution, Officer's Certificate, Opinion of Counsel or
other document or instrument, a clerical, typographical or other
inadvertent or unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted therefor in
corrected form with the same force and effect as if originally filed
in the corrected form and, irrespective of the date or dates of the
actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as
of the date or dates required with respect to the document or
instrument for which it is substituted. Anything in this Indenture to
the contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the request
of the Company which could not have been taken had the original
document or instrument not contained such error or omission, the
action so taken shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and effect, except
to the extent that such action was a result of willful misconduct or
bad faith. Without limiting the generality of the foregoing, any
Securities issued under the authority of such defective document or
instrument shall nevertheless be the valid obligations of the Company
entitled to the benefits provided by this Indenture equally and
ratably with all other Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Indenture
to be made, given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing or,
alternatively, may be embodied in and evidenced by the record of
Holders voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held
in accordance with the provisions of Article Twelve, or a combination
of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "ACT" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 801) conclusive in
favor of the Trustee and the Company, if made in the manner provided
in this Section. The record of any meeting of Holders shall be proved
in the manner provided in Section 1206.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him the execution thereof or may be proved in any other manner which
the Trustee and the Company deem sufficient. Where such execution is
by a signer acting in a capacity other than his individual capacity,
such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The ownership, principal amount (except as otherwise
contemplated in clause (y) of the first proviso to the definition of
Outstanding) and serial numbers of Securities held by any Person, and
the date of holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every
future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of
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.
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 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 Preferred Securities
and, so long as the notice described in Section 1413 shall not have
been given, holders of Senior Indebtedness, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the law of the State of New York
(including without limitation Section 5-1401 of the New York General
Obligations Law or any successor to such statute), except to the
extent that the Trust Indenture Act shall be applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities other than a provision in Securities of
any series, or any Tranche thereof, or in the indenture supplemental
hereto, Board Resolution or Officer's Certificate which establishes
the terms of the Securities of such series or Tranche, which
specifically states that such provision shall apply in lieu of this
Section) payment of interest or principal and premium, if any, need
not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, and, if such payment is
made or duly provided for on such Business Day, no interest shall
accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case
may be, to such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in
substantially the form or forms established in the indenture
supplemental hereto establishing such series, or in a Board Resolution
establishing such series, or in an Officer's Certificate pursuant to
such a supplemental indenture or Board Resolution, in any case with
such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently
herewith, be determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form or forms
of Securities of any series are established in a Board Resolution or
in an Officer's Certificate pursuant to a Board Resolution, such Board
Resolution and Officer's Certificate, if any, shall be delivered to
the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of
such Securities.
The Securities of each series shall be issuable in
registered form without coupons. The definitive Securities shall be
produced in such manner as shall be determined by the officers
executing such Securities, as evidenced by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
----------------------------
as Trustee
By:
----------------------------
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Subject
to the last paragraph of this Section, prior to the authentication and
delivery of Securities of any series there shall be established by
specification in a supplemental indenture or in a Board Resolution, or
in an Officer's Certificate pursuant to a supplemental indenture or a
Board Resolution:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from
Securities of all other series);
(b) any limit upon the aggregate principal amount of
the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
such series pursuant to Section 304, 305, 306, 406 or 1106
and except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Persons (without specific identification) to
whom interest on Securities of such series, or any Tranche
thereof, shall be payable, if other than the Persons in
whose names such Securities (or one or more Predecessor
Securities) are registered at the close of business on the
Regular Record Date for such interest;
(d) the date or dates on which the principal of the
Securities of such series, or any Tranche thereof, is
payable or any formulary or other method or other means by
which such date or dates shall be determined, by reference
to an index or other fact or event ascertainable outside of
this Indenture or otherwise (without regard to any
provisions for redemption, prepayment, acceleration,
purchase or extension); and the right, if any, to extend the
Maturity of the Securities of such series, or any Tranche
thereof, and the duration of any such extension;
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal
shall bear interest, if different from the rate or rates at
which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue
premium or interest shall bear interest, if any), or any
formulary or other method or other means by which such rate
or rates shall be determined, by reference to an index or
other fact or event ascertainable outside of this Indenture
or otherwise; the date or dates from which such interest
shall accrue; the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date, if
any, for the interest payable on such Securities on any
Interest Payment Date; the basis of computation of interest,
if other than as provided in Section 310; and the right, if
any, to extend the interest payment periods and the duration
of any such extension;
(f) the place or places at which and/or the methods
(if other than as provided elsewhere in this Indenture) by
which (i) the principal of and premium, if any, and
interest, if any, on Securities of such series, or any
Tranche thereof, shall be payable, (ii) registration of
transfer of Securities of such series, or any Tranche
thereof, may be effected, (iii) exchanges of Securities of
such series, or any Tranche thereof, may be effected and
(iv) notices and demands to or upon the Company in respect
of the Securities of such series, or any Tranche thereof,
and this Indenture may be served; the Security Registrar and
any Paying Agent or Agents for such series or Tranche; and,
if such is the case, that the principal of such Securities
shall be payable without the presentment or surrender
thereof;
(g) the period or periods within which or the date or
dates on which, the price or prices at which and the terms
and conditions upon which the Securities of such series, or
any Tranche thereof, may be redeemed, in whole or in part,
at the option of the Company;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such series,
or any Tranche thereof, pursuant to any sinking fund or
other mandatory redemption provisions or at the option of a
Holder thereof and the period or periods within which or the
date or dates on which, the price or prices at which and the
terms and conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation, and applicable exceptions to the requirements of
Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if other
than denominations of One Thousand Dollars ($1,000) and any
integral multiple thereof (in the case of Securities issued
to a Washington Water Power Trust or a trustee of such trust
in connection with the issuance of Trust Securities by such
Washington Water Power Trust, the denomination in which such
Securities shall be issuable if other than denominations of
Twenty-Five Dollars ($25) and any integral multiple
thereof);
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and
premium, if any, and interest, if any, on the Securities of
such series, or any Tranche thereof, shall be payable (if
other than in Dollars);
(k) if the principal of or premium, if any, or
interest, if any, on the Securities of such series, or any
Tranche thereof, are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency other
than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and
conditions upon which, such election may be made;
(l) if the principal of or premium, if any, or
interest, if any, on the Securities of such series, or any
Tranche thereof, are to be payable, or are to be payable at
the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such
securities or other property, or the formulary or other
method or other means by which such amount shall be
determined, and the period or periods within which, and the
terms and conditions upon which, any such election may be
made;
(m) if the amount payable in respect of the principal
of or premium, if any, or interest, if any, on the
Securities of such series, or any Tranche thereof, may be
determined with reference to an index or other fact or event
ascertainable outside of this Indenture, the manner in which
such amounts shall be determined (to the extent not
established pursuant to clause (e) of this paragraph);
(n) if other than the principal amount thereof, the
portion of the principal amount of Securities of such
series, or any Tranche thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant
to Section 702;
(o) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof, may be
converted into or exchanged for shares of capital stock or
other securities of the Company or any other Person;
(p) the obligations or instruments, if any, which
shall be considered to be Eligible Obligations in respect of
the Securities of such series, or any Tranche thereof,
denominated in a currency other than Dollars or in a
composite currency, and any additional or alternative
provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the
satisfaction and discharge thereof as provided in Section
601;
(q) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any
limitations on the rights of the Holder or Holders of such
Securities to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii) any limitations on
the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of
temporary form and (iii) any and all other matters
incidental to such Securities;
(r) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and
all matters incidental thereto which are not specifically
addressed in a supplemental indenture as contemplated by
clause (f) of Section 1101;
(s) to the extent not established pursuant to clause
(q) of this paragraph, any limitations on the rights of the
Holders of the Securities of such Series, or any Tranche
thereof, to transfer or exchange such Securities or to
obtain the registration of transfer thereof; and if a
service charge will be made for the registration of transfer
or exchange of Securities of such series, or any Tranche
thereof, the amount or terms thereof;
(t) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities
of such series, or any Tranche thereof; and
(u) any other terms of the Securities of such series,
or any Tranche thereof.
With respect to Securities of a series subject to a Periodic
Offering, the indenture supplemental hereto or the Board Resolution
which establishes such series, or the Officer's Certificate pursuant
to such supplemental indenture or Board Resolution, as the case may
be, may provide general terms or parameters for Securities of such
series and provide either that the specific terms of Securities of
such series, or any Tranche thereof, shall be specified in a Company
Order or that such terms shall be determined by the Company or its
agents in accordance with procedures specified in a Company Order as
contemplated by clause (b) of Section 303.
Anything herein to the contrary notwithstanding, the Trustee
shall be under no obligation to authenticate and deliver Securities of
any series the terms of which, established as contemplated by this
Section, would affect the rights, duties, obligations, liabilities or
immunities of the Trustee under this Indenture or otherwise.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof, the
Securities of each series shall be issuable in denominations of One
Thousand Dollars ($1,000) and any integral multiple thereof (in the
case of securities issued to a Washington Water Power Trust or a
trustee of such trust in connection with the issuance of Trust
Securities by such Washington Water Power Trust, the Securities of
each series shall be issuable in denominations of Twenty-Five Dollars
($25) and any integral multiple thereof).
SECTION 303. EXECUTION, DATING, CERTIFICATE OF AUTHENTICATION.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof, the
Securities shall be executed on behalf of the Company by an Authorized
Officer, and may have the corporate seal of the Company affixed
thereto or reproduced thereon and attested by any other Authorized
Officer. The signature of any or all of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers of
the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or did not hold
such offices at the date of such Securities.
The Trustee shall authenticate and deliver Securities of a
series, for original issue, at one time or from time to time in
accordance with the Company Order referred to below, upon receipt by
the Trustee of:
(a) the instrument or instruments establishing the
form or forms and terms of such series, as provided in
Sections 201 and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the
terms of such Securities shall not have been established in
an indenture supplemental hereto or in a Board Resolution,
or in an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated by
Sections 201 and 301, either (i) establishing such terms or
(ii) in the case of Securities of a series subject to a
Periodic Offering, specifying procedures, acceptable to the
Trustee, by which such terms are to be established (which
procedures may provide for authentication and delivery
pursuant to oral or electronic instructions from the Company
or any agent or agents thereof, which oral instructions are
to be promptly confirmed electronically or in writing), in
either case in accordance with the instrument or instruments
delivered pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf
of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have
been duly authorized by the Company and have been
established in conformity with the provisions of this
Indenture;
(ii) the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) when such Securities shall have been
authenticated and delivered by the Trustee and issued
and delivered by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel,
such Securities will constitute valid obligations of
the Company, entitled to the benefits provided by this
Indenture equally and ratably with all other Securities
then Outstanding;
provided, however, that, with respect to Securities of a
series subject to a Periodic Offering, the Trustee shall be
entitled to receive such Opinion of Counsel only once at or
prior to the time of the first authentication and delivery
of such Securities (provided that such Opinion of Counsel
addresses the authentication and delivery of all Securities
of such series) and that, in lieu of the opinions described
in clauses (ii) and (iii) above, Counsel may opine that:
(x) when the terms of such Securities shall have
been established pursuant to a Company Order or Orders
or pursuant to such procedures as may be specified from
time to time by a Company Order or Orders, all as
contemplated by and in accordance with the instrument
or instruments delivered pursuant to clause (a) above,
such terms will have been duly authorized by the
Company and will have been established in conformity
with the provisions of this Indenture; and
(y) when such Securities shall have been
authenticated and delivered by the Trustee in
accordance with this Indenture and the Company Order or
Orders or the specified procedures referred to in
paragraph (x) above and issued and delivered by the
Company in the manner and subject to any conditions
specified in such Opinion of Counsel, such Securities
will constitute valid obligations of the Company,
entitled to the benefits provided by this Indenture
equally and ratably with all other Securities then
Outstanding.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization
by the Company of any of such Securities, the forms and terms thereof,
the validity thereof and the compliance of the authentication and
delivery thereof with the terms and conditions of this Indenture, upon
the Opinion or Opinions of Counsel and the certificates and other
documents delivered pursuant to this Article at or prior to the time
of the first authentication and delivery of Securities of such series
until any of such opinions, certificates or other documents have been
superseded or revoked or expire by their terms. In connection with
the authentication and delivery of Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such Securities do
not violate any applicable law or any applicable rule, regulation or
order of any Governmental Authority having jurisdiction over the
Company.
If the form of terms of the Securities of any series have
been established by or pursuant to a Board Resolution or an Officer's
Certificate as permitted by Sections 201 or 301, the Trustee shall not
be required to authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture
or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Unless otherwise specified as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof, each
Security shall be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof, no
Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee or an Authenticating Agent
by manual signature of an authorized officer thereof, and such
certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if (a) any Security shall have been
authenticated and delivered hereunder to the Company, or any Person
acting on its behalf, but shall never have been issued and sold by the
Company, (b) the Company shall deliver such Security to the Security
Registrar for cancellation or shall cancel such Security and deliver
evidence of such cancellation to the Trustee, in each case as provided
in Section 309, and (c) the Company, at its election, shall deliver to
the Trustee a written statement (which need not comply with Section
102 and need not be accompanied by an Officer's Certificate or an
Opinion of Counsel) stating that such Security has never been issued
and sold by the Company, then, for all purposes of this Indenture,
such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits
hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed,
photocopied or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of
which they are issued, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such
Securities; provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or exchange
provisions.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof,
after the preparation of definitive Securities of such series or
Tranche, the temporary Securities of such series or Tranche shall be
exchangeable, without charge to the Holder thereof, for definitive
Securities of such series or Tranche upon surrender of such temporary
Securities at the office or agency of the Company maintained pursuant
to Section 502 in a Place of Payment for such Securities. Upon such
surrender of temporary Securities, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and deliver in
exchange therefor definitive Securities of the same series and
Tranche, of authorized denominations and of like tenor and aggregate
principal amount.
Until exchanged in full as hereinabove provided, temporary
Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and
Tranche and of like tenor authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in one of the offices
designated pursuant to Section 502, with respect to the Securities of
each series, or any Tranche thereof, a register (the "SECURITY
REGISTER") in which, subject to such reasonable regulations as it may
prescribe, the 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 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.
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 benefit of
the Persons entitled to such Unpaid Interest as in this
clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Unpaid Interest which
shall be not more than thirty (30) days and not less than
ten (10) days prior to the date of the proposed payment and
not less than twenty-five (25) days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company,
shall, not less than fifteen (15) days prior to such Special
Record Date, cause notice of the proposed payment of such
Unpaid Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of
Securities of such series at the address of such Holder as
it appears in the Security Register. Notice of the proposed
payment of such Unpaid Interest and the Special Record Date
therefor having been so mailed, such Unpaid Interest shall
be paid to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record
Date.
(b) The Company may make payment of any Unpaid
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Security is registered
as the absolute owner of such Security for the purpose of receiving
payment of principal of and premium, if any, and (subject to Sections
305 and 307) interest, if any, on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Security Registrar, be delivered to the Security
Registrar and, if not theretofore canceled, shall be promptly canceled
by the Security Registrar. The Company may at any time deliver to the
Security Registrar for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be promptly
canceled by the Security Registrar. All canceled Securities held by
the Security Registrar shall be disposed of in accordance with a
Company Order delivered to the Security Registrar and the Trustee, and
the Security Registrar shall promptly deliver a certificate of
disposition to the Trustee and the Company unless, by a Company Order,
similarly delivered, the Company shall direct that canceled Securities
be returned to it. The Security Registrar shall promptly deliver
evidence of any cancellation of a Security in accordance with this
Section 309 to the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, or any Tranche thereof, interest on the
Securities of each series shall be computed on the basis of a three
hundred sixty (360) day year consisting of twelve (12) thirty (30) day
months and, with respect to any period less than a full calendar
month, on the basis of the actual number of days elapsed during such
period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any Tranche
thereof, denominated in any currency other than Dollars or in a
composite currency (the "REQUIRED CURRENCY"), except as otherwise
specified with respect to such Securities as contemplated by Section
301, the obligation of the Company to make any payment of the
principal thereof, or the premium, if any, or interest, if any,
thereon, shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency other than the
Required Currency, except to the extent that such tender or recovery
shall result in the Trustee timely holding the full amount of the
Required Currency then due and payable. If any such tender or
recovery is in a currency other than the Required Currency, the
Trustee may take such actions as it considers appropriate to exchange
such currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay and
exchange rate fluctuation, shall be borne by the Company, the Company
shall remain fully liable for any shortfall or delinquency in the full
amount of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor except in the case
of its negligence or willful misconduct.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are
redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of such series or Tranche)
in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall
be evidenced by a Board Resolution or an Officer's Certificate. The
Company shall, at least forty-five (45) days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of such Securities to be
redeemed. In the case of any redemption of Securities (a) prior to
the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture or (b)
pursuant to an election of the Company which is subject to a condition
specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officer's Certificate evidencing compliance with
such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Securities to be
redeemed shall be selected by the Security Registrar from the
Outstanding Securities of such series or Tranche not previously called
for redemption, by such method as shall be provided for any particular
series or Tranche, or, in the absence of any such provision, by such
method of random selection as the Security Registrar shall deem fair
and appropriate and which may, in any case, provide for the selection
for redemption of portions (equal to the minimum authorized
denomination for Securities of such series or Tranche or any integral
multiple thereof) of the principal amount of Securities of such series
or Tranche having a denomination larger than the minimum authorized
denomination for Securities of such series or Tranche; provided,
however, that if, as indicated in an Officer's Certificate, the
Company shall have offered to purchase all or any principal amount of
the Securities then Outstanding of any series, or any Tranche thereof,
and less than all of such Securities as to which such offer was made
shall have been tendered to the Company for such purchase, the
Security Registrar, if so directed by Company Order, shall select for
redemption all or any principal amount of such Securities which have
not been so tendered.
The Security Registrar shall promptly notify the Company and
the Trustee in writing of the Securities selected for redemption and,
in the case of any Securities selected to be redeemed in part, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of
such Securities which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided
in Section 106 to the Holders of the Securities to be redeemed not
less than thirty (30) nor more than sixty (60) days prior to the
Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or
Tranche are to be redeemed, the identification of the
particular Securities to be redeemed and the portion of the
principal amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption
Date, will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and
accrued interest, if any, unless it shall have been
specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other
fund, if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
With respect to any notice of redemption of Securities at
the election of the Company, unless, upon the giving of such notice,
such Securities shall be deemed to have been paid in accordance with
Section 601, such notice may state that such redemption shall be
conditional upon the receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such redemption, of
money sufficient to pay the principal of and premium, if any, and
interest, if any, on such Securities and that if such money shall not
have been so received such notice shall be of no force or effect and
the Company shall not be required to redeem such Securities. In the
event that such notice of redemption contains such a condition and
such money is not so received, the redemption shall not be made and
within a reasonable time thereafter notice shall be given, in the
manner in which the notice of redemption was given, that such money
was not so received and such redemption was not required to be made,
and the Paying Agent or Agents for the Securities otherwise to have
been redeemed shall promptly return to the Holders thereof any of such
Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a
condition for redemption as aforesaid, shall be given by the Company
or, at the Company's request, by the Security Registrar in the name
and at the expense of the Company. Notice of mandatory redemption of
Securities shall be given by the Security Registrar in the name and at
the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied,
the Securities or portions thereof so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless, in the case
of an unconditional notice of redemption, the Company shall default in
the payment of the Redemption Price and accrued interest, if any) such
Securities or portions thereof, if interest-bearing, shall cease to
bear interest. Upon surrender of any such Security for redemption in
accordance with such notice, such Security or portion thereof shall be
paid by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that no
such surrender shall be a condition to such payment if so specified as
contemplated by Section 301 with respect to such Security; and
provided, further, that, except as otherwise specified as contemplated
by Section 301 with respect to such Security, any installment of
interest on any Security the Stated Maturity of which installment is
on or prior to the Redemption Date shall be payable to the Holder of
such Security, or one or more Predecessor Securities, registered as
such at the close of business on the related Regular Record Date
according to the terms of such Security and subject to the provisions
of Section 307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed
only in part at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing), the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities of the same series and
Tranche, of any authorized denomination requested by such Holder and
of like tenor and in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security
so surrendered.
ARTICLE FIVE
COVENANTS
SECTION 501. PAYMENT OF SECURITIES.
The Company shall pay the principal of and premium, if any,
and interest, if any, on the Securities of each series in accordance
with the terms of such Securities and this Indenture.
SECTION 502. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the
Securities of each series, or any Tranche thereof, an office or agency
where payment of such Securities shall be made, where the registration
of transfer or exchange of such Securities may be effected and where
notices and demands to or upon the Company in respect of such
Securities and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change
in the location, of each such office or agency and prompt notice to
the Holders of any such change in the manner specified in Section 106.
If at any time the Company shall fail to maintain any such required
office or agency in respect of Securities of any series, or any
Tranche thereof, or shall fail to furnish the Trustee with the address
thereof, payment of such Securities shall be made, registration of
transfer or exchange thereof may be effected and notices and demands
in respect thereof may be served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent for
all such purposes in any such event.
The Company may also from time to time designate one or more
other offices or agencies with respect to the Securities of one or
more series, or any Tranche thereof, for any or all of the foregoing
purposes and may from time to time rescind such designations;
provided, however, that, unless otherwise specified as contemplated by
Section 301 with respect to the Securities of such series or Tranche,
no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency for such
purposes in each Place of Payment for such Securities in accordance
with the requirements set forth above. The Company shall give prompt
written notice to the Trustee, and prompt notice to the Holders in the
manner specified in Section 106, of any such designation or rescission
and of any change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office
or agency required by this Section may be maintained at an office of
the Company, in which event the Company shall perform all functions to
be performed at such office or agency.
SECTION 503. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to the Securities of any series, or any Tranche thereof,
it shall, on or before each due date of the principal of and premium,
if any, and interest, if any, on any of such Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and premium or interest so becoming
due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided. The Company shall promptly notify the
Trustee of any failure by the Company (or any other obligor on such
Securities) to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents
for the Securities of any series, or any Tranche thereof, it shall, on
or before each due date of the principal of and premium, if any, and
interest, if any, on such Securities, deposit with such Paying Agents
sums sufficient (without duplication) to pay the principal and premium
or interest so becoming due, such sums to be held in trust for the
benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company
shall promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities
of any series, or any Tranche thereof, other than the Company or the
Trustee, to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on
such Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to make
any payment of principal of or premium, if any, or interest,
if any, on such Securities; and
(c) at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent and furnish to the Trustee such information as it
possesses regarding the names and addresses of the Persons
entitled to such sums.
The Company may at any time pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company
or such Paying Agent and, if so stated in a Company Order delivered to
the Trustee, in accordance with the provisions of Article Six; and,
upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of
and premium, if any, or interest, if any, on any Security and
remaining unclaimed for two years after such principal and premium, if
any, or interest, if any, has become due and payable shall be paid to
the Company on Company Request, or, if then held by the Company, shall
be discharged from such trust; and, upon such payment or discharge,
the Holder of such Security shall, as an unsecured general creditor
and not as the Holder of an Outstanding Security, look only to the
Company for payment of the amount so due and payable and remaining
unpaid (subject, however, to the provisions of Article Fourteen), and
all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to the
Company, may at the expense of the Company cause to be mailed, on one
occasion only, notice to such Holder that such money remains unclaimed
and that, after a date specified therein, which shall not be less than
thirty (30) days from the date of such mailing, any unclaimed balance
of such money then remaining will be paid to the Company.
SECTION 504. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Ten, the
Company shall do or cause to be done all things necessary to preserve
and keep its corporate existence in full force and effect.
SECTION 505. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property owned
in common with others, make reasonable effort to cause) all its
properties used or useful in the conduct of its businesses, considered
as a whole, to be maintained and kept in good condition, repair and
working order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made such
repairs, renewals, replacements, betterments and improvements thereof,
as, in the judgment of the Company, may be necessary in order that the
operation of such properties, considered as a whole, may be conducted
in accordance with common industry practice; provided, however, that
nothing in this Section shall prevent the Company from discontinuing,
or causing the discontinuance of, the operation and maintenance of any
of its properties; and provided, further, that nothing in this Section
shall prevent the Company from selling, transferring or otherwise
disposing of, or causing the sale, transfer or other disposition of,
any of its properties.
SECTION 506. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in
(a) any covenant or restriction specified with respect
to the Securities of any series, or any Tranche thereof, as
contemplated by Section 301 if before the time for such
compliance the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series and
Tranches with respect to which compliance with such covenant
or restriction is to be omitted, considered as one class,
shall, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such
term, provision or condition; provided, however, that no
such waiver shall be effective as to any matters
contemplated in clause (a), (b) or (c) in Section 1102
without consent of the Holders specified in such Section;
and
(b) Section 504 or 505 or Article Ten if before the
time for such compliance the Holders of a majority in
principal amount of Securities Outstanding under this
Indenture shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance
with such term, provision or condition;
but, in either case, no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect;
provided, however, so long as a Washington Water Power Trust holds
Securities of any series, such trust may not waive compliance or waive
any default in compliance by the Company with any covenant or other
term contained in this Indenture or the Securities of such series
without the approval of the holders of a majority in aggregate
liquidation amount of the outstanding Preferred Securities issued by
such Trust, obtained as provided in the Declaration establishing such
trust.
SECTION 507. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than December 1 in each year, commencing December
1, ____, the Company shall deliver to the Trustee an Officer's
Certificate which need not comply with Section 102, executed by the
principal executive officer, the principal financial officer or the
principal accounting officer of the Company, as to such officer's
knowledge of the Company's compliance with all conditions and
covenants under this Indenture, such compliance to be determined
without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 508. RESTRICTION ON PAYMENT OF DIVIDENDS, ETC.
If, at any time (a) there shall have occurred and be
continuing an Event of Default described in clause (a) or (b) of
Section 701 with respect to the Securities of any series, (b) the
Company shall have elected to extend any interest payment period as
specified with respect to the Securities of any series, or any Tranche
thereof, as contemplated by Section 301 and any such period, as so
extended, shall be continuing, or (c) the Company shall be in default
in respect of its payment or other obligations under the Guarantee
relating to any Preferred Securities, 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 Preferred Securities);
provided, however, that nothing in this Section shall be deemed to
prohibit (i) dividends or distributions payable in shares of the
Company's capital stock, (ii) reclassification of the Company's
capital stock or exchange or conversion of shares of one class or
series of the Company's capital stock into shares of another class or
series of the Company's capital stock, (iii) purchases or other
acquisitions of fractional interests in shares of the Company's
capital stock and (iv) redemption, purchases or other acquisitions of
the Company's capital stock in connection with the satisfaction by the
Company of its obligations, under provisions of the Company's Restated
Articles of Incorporation, as amended, under any direct purchase,
dividend reinvestment, customer purchase or employee benefit plans or
under any contract or security requiring the Company to purchase
shares of its capital stock.
SECTION 509. WASHINGTON WATER POWER TRUSTS.
If Securities of any series are issued and delivered to a
Washington Water Power Trust (or a trustee thereof) in connection with
the issuance by such trust of Trust Securities, so long as such Trust
Securities remain outstanding the Company shall (a) maintain 100%
direct ownership of the Common Securities of such Washington Water
Power Trust by the Company or any Affiliate thereof, except as
otherwise provided in Section 1005, and (b) use all reasonable efforts
to cause such Washington Water Power Trust (i) to maintain its
existence as a business trust, except in connection with a
distribution of Securities, with the redemption, purchase or other
acquisition and retirement of all Trust Securities of such trust or
with certain mergers, consolidations or other business combinations,
in each case as permitted by the Declaration establishing such
Washington Water Power Trust, and (ii) to otherwise continue not to be
treated as an association taxable as a corporation for United States
federal income tax purposes.
ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal
amount thereof, shall be deemed to have been paid for all purposes of
this Indenture, and the entire indebtedness of the Company in respect
thereof shall be satisfied and discharged, if there shall have been
irrevocably deposited with the Trustee or any Paying Agent (other than
the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof, Eligible
Obligations, which shall not contain provisions permitting
the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent,
shall be sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and interest, if
any, due and to become due on such Securities or portions thereof;
provided, however, that in the case of the provision for payment or
redemption of less than all the Securities of any series or Tranche,
such Securities or portions thereof shall have been selected by the
Security Registrar as provided herein and, in the case of a
redemption, the notice requisite to the validity of such redemption
shall have been given or irrevocable authority shall have been given
by the Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the Company
shall have delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that
the money and Eligible Obligations deposited in accordance
with this Section shall be held in trust, as provided in
Section 603;
(y) if Eligible Obligations shall have been deposited,
an Opinion of Counsel to the effect that such obligations
constitute Eligible Obligations and do not contain
provisions permitting the redemption or other prepayment
thereof at the option of the issuer thereof, and an opinion
of an independent public accountant of nationally recognized
standing, selected by the Company, to the effect that the
other requirements set forth in clause (b) above have been
satisfied; and
(z) if such deposit shall have been made prior to the
Maturity of such Securities, an Officer's Certificate
stating the Company's intention that, upon delivery of such
Officer's Certificate, its indebtedness in respect of such
Securities or portions thereof will have been satisfied and
discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both,
in accordance with this Section, together with the documents required
by clauses (x), (y) and (z) above, the Trustee shall, upon Company
Request, acknowledge in writing that such Securities or portions
thereof are deemed to have been paid for all purposes of this
Indenture and that the entire indebtedness of the Company in respect
thereof has been satisfied and discharged as contemplated in this
Section. In the event that all of the conditions set forth in the
preceding paragraph shall have been satisfied in respect of any
Securities or portions thereof except that, for any reason, the
Officer's Certificate specified in clause (z) (if otherwise required)
shall not have been delivered, such Securities or portions thereof
shall nevertheless be deemed to have been paid for all purposes of
this Indenture, and the Holders of such Securities or portions thereof
shall nevertheless be no longer entitled to the benefits provided by
this Indenture or of any of the covenants of the Company under Article
Five (except the covenants contained in Sections 502 and 503) or any
other covenants made in respect of such Securities or portions thereof
as contemplated by Section 301, but the indebtedness of the Company in
respect of such Securities or portions thereof shall not be deemed to
have been satisfied and discharged prior to Maturity for any other
purpose; and, upon Company Request, the Trustee shall acknowledge in
writing that such Securities or portions thereof are deemed to have
been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be provided
for in the manner and with the effect provided in this Section, the
Security Registrar shall select such Securities, or portions of
principal amount thereof, in the manner specified by Section 403 for
selection for redemption of less than all the Securities of a series
or Tranche.
In the event that Securities which shall be deemed to have
been paid for purposes of this Indenture, and, if such is the case, in
respect of which the Company's indebtedness shall have been satisfied
and discharged, all as provided in this Section, do not mature and are
not to be redeemed within the sixty (60) day period commencing with
the date of the deposit of moneys or Eligible Obligations, as
aforesaid, the Company shall, as promptly as practicable, give a
notice, in the same manner as a notice of redemption with respect to
such Securities, to the Holders of such Securities to the effect that
such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have
been paid for purposes of this Indenture, as aforesaid, the
obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 404, 502, 503, 807 and 814
and this Article shall survive.
The Company shall pay, and shall indemnify the Trustee or
any Paying Agent with which Eligible Obligations shall have been
deposited as provided in this Section against, any tax, fee or other
charge imposed on or assessed against such Eligible Obligations or the
principal or interest received in respect of such Eligible
Obligations, including, but not limited to, any such tax payable by
any entity deemed, for tax purposes, to have been created as a result
of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at
any time after a Security would be deemed to have been paid for
purposes of this Indenture, and, if such is the case, the Company's
indebtedness in respect thereof would be deemed to have been satisfied
and discharged, pursuant to this Section (without regard to the
provisions of this paragraph), the Trustee or any Paying Agent, as the
case may be, shall be required to return the money or Eligible
Obligations, or combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable Federal or
State bankruptcy, insolvency or other similar law, such Security shall
thereupon be deemed retroactively not to have been paid and any
satisfaction and discharge of the Company's indebtedness in respect
thereof shall retroactively be deemed not to have been effected, and
such Security shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's indebtedness in respect of
any Security shall be subject to the provisions of the last paragraph
of Section 503.
SECTION 602. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of
further effect (except as hereinafter expressly provided), and the
Trustee, at the expense of the Company, shall execute such instruments
as the Company shall reasonably request to evidence and acknowledge
the satisfaction and discharge of this Indenture, when:
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all
other sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of
Section 601, any Security, previously deemed to have been paid for
purposes of this Indenture, shall be deemed retroactively not to have
been so paid, this Indenture shall thereupon be deemed retroactively
not to have been satisfied and discharged, as aforesaid, and to remain
in full force and effect, and the Company shall execute and deliver
such instruments as the Trustee shall reasonably request to evidence
and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the Trustee
under Sections 304, 305, 306, 404, 502, 503, 807 and 814 and this
Article shall survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall turn over to the Company
any and all money, securities and other property then held by the
Trustee for the benefit of the Holders of the Securities (other than
money and Eligible Obligations held by the Trustee pursuant to Section
603) and shall execute and deliver to the Company such instruments as,
in the judgment of the Company, shall be necessary, desirable or
appropriate to effect or evidence the satisfaction and discharge of
this Indenture.
SECTION 603. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited
pursuant to Section 601, nor the principal or interest payments on any
such Eligible Obligations, shall be withdrawn or used for any purpose
other than, and shall be held in trust for, the payment of the
principal of and premium, if any, and interest, if any, on the
Securities or portions of principal amount thereof in respect of which
such deposit was made, all subject, 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 to the
Securities of any series, means any of the following events which
shall have occurred and be continuing:
(a) failure to pay interest, if any, on any Security of
such series within sixty (60) days after the same becomes due and
payable (whether or not payment is prohibited by the provisions
of Article Fourteen); provided, however, that no such failure
shall constitute an "Event of Default" if the Company shall have
made a valid extension of the interest payment period with
respect to the Securities of such series if so provided with
respect to such series as contemplated by Section 301; or
(b) failure to pay the principal of or premium, if any, on
any Security of such series within three (3) Business Days after
its Maturity (whether or not payment is prohibited by the
provisions of Article Fourteen); provided, however, that no such
failure shall constitute an "Event of Default" if the Company
shall have made a valid extension of the Maturity of the
Securities of such series if so provided with respect to such
series as contemplated by Section 301; or
(c) failure to perform or breach of any covenant or
warranty of the Company in this Indenture (other than a covenant
or warranty a default in the performance of which or breach of
which is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for
the benefit of one or more series of Securities other than such
series) for a period of ninety (90) days after there has been
given, by registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the Holders of at
least thirty-three per centum (33%) in principal amount of the
Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied
and stating that such notice is a "NOTICE OF DEFAULT" hereunder,
unless the Trustee, or the Trustee and the Holders of a principal
amount of Securities of such series not less than the principal
amount of Securities the Holders of which gave such notice, as
the case may be, shall agree in writing to an extension of such
period prior to its expiration; provided, however, that the
Trustee, or the Trustee and the Holders of such principal amount
of Securities of such series, as the case may be, shall be deemed
to have agreed to an extension of such period if corrective
action is initiated by the Company within such period and is
being diligently pursued; or
(d) the entry by a court having jurisdiction in the
premises of (i) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or (ii) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
by one or more Persons other than the Company seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law,
or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for the Company
or for any substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and any such decree or
order for relief or any such other decree or order shall have
remained 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 Outstanding, then
in every such case the Trustee or the Holders of not less than thirty-
three per centum (33%) in principal amount of the Outstanding
Securities of such series may declare the principal amount (or, if any
of the Securities of such series are Discount Securities, such portion
of the principal amount of such Securities as may be specified in the
terms thereof as contemplated by Section 301) of all of the
Outstanding Securities of such series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon such declaration such principal amount
(or specified amount), together with premium, if any, and accrued
interest, if any, thereon, shall become immediately due and payable;
provided, however, that if an Event of Default shall have occurred and
be continuing with respect to more than one series of Securities, the
Trustee or the Holders of not less than thirty-three per centum (33%)
in aggregate principal amount of the Outstanding Securities of all
such series, considered as one class, may make such declaration of
acceleration, and not the Holders of the Securities of any one of such
series.
At any time after such a declaration of acceleration with
respect to Securities of any series shall have been made, but before a
judgment or decree for payment of the money due shall have been
obtained by the Trustee as provided in this Article, the Event or
Events of Default giving rise to such declaration of acceleration
shall, without further act, be deemed to have been cured, and such
declaration and its consequences shall, without further act, be deemed
to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(i) all overdue interest, if any, on all
Securities of such series then Outstanding;
(ii) the principal of and premium, if any, on any
Securities of such series then Outstanding which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities;
(iii) interest upon overdue interest at the rate
or rates prescribed therefor in such Securities, to the
extent that payment of such interest is lawful; and
(iv) all amounts due to the Trustee under Section
807; and
(b) any other Event or Events of Default with respect
to Securities of such series, other than the non-payment of
the principal of Securities of such series which shall have
become due solely by such declaration of acceleration, shall
have been cured or waived as provided in Section 713.
No such rescission shall affect any subsequent Event of Default or
impair any right consequent thereon.
SECTION 703. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
If an Event of Default described in clause (a) or (b) of
Section 701 shall have occurred and be continuing, the Company shall,
upon demand of the Trustee, pay to it, for the benefit of the Holders
of the Securities of the series with respect to which such Event of
Default shall have occurred, the whole amount then due and payable on
such Securities for principal and premium, if any, and interest, if
any, and, in addition thereto, such further amount as shall be
sufficient to cover any amounts due to the Trustee under Section 807.
If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company or any other
obligor upon such Securities and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of
the Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of
any power granted herein, or to enforce any other proper remedy.
SECTION 704. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, to the extent permitted by
law, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or premium, if any,
or interest, if any, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 807;
SECOND: To the payment of the whole amount then due and
unpaid upon the Outstanding Securities for principal and premium,
if any, and interest, if any, in respect of which or for the
benefit of which such money has been collected; and in case such
proceeds shall be insufficient to pay in full the whole amount so
due and unpaid upon such Securities, then to the payment of such
principal and interest, if any, thereon without any preference or
priority, ratably according to the aggregate amount so due and
unpaid, with any balance then remaining to the payment of
premium, if any, and, if so specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, interest, if any, on overdue premium, if any, and
overdue interest, if any, ratably as aforesaid, all to the extent
permitted by applicable law;
THIRD: To the payment of the remainder, if any, to the
Company or to whomsoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may direct.
SECTION 705. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other papers
or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for amounts due to
the Trustee under Section 807) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any
amounts due it under Section 807.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding.
SECTION 706. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or on
the Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders in respect of which such judgment has been
recovered.
SECTION 707. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such Holder shall have previously given written notice
to the Trustee of a continuing Event of Default with respect to
the Securities of such series;
(b) the Holders of a majority in aggregate principal amount
of the Outstanding Securities of all series in respect of which
an Event of Default shall have occurred and be continuing,
considered as one class, shall have made written request to the
Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for sixty (60) days after its receipt of
such notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request
shall have been given to the Trustee during such sixty (60) day
period by the Holders of a majority in aggregate principal amount
of the Outstanding Securities of all series in respect of which
an Event of Default shall have occurred and be continuing,
considered as one class.
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders or to obtain or to
seek to obtain priority or preference over any other of such Holders
or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 708. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if
any, and (subject to Section 307) interest, if any, on such Security
on the Stated Maturity or Maturities expressed in such Security (or,
in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 709. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and such Holder shall be
restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and
such Holder shall continue as though no such proceeding had been
instituted.
SECTION 710. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to
the Trustee or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 711. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 712. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing
in respect of a series of Securities, the Holders of a majority in
principal amount of the Outstanding Securities of such series shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee with respect to the Securities
of such series; provided, however, that if an Event of Default shall
have occurred and be continuing with respect to more than one series
of Securities, the Holders of a majority in aggregate principal amount
of the Outstanding Securities of all such series, considered as one
class, shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and provided,
further, that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture, and could not involve the Trustee
in personal liability in circumstances where indemnity would not,
in the Trustee's sole discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 713. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of
all the Securities of such series waive any past default with respect
to such series hereunder and its consequences, except a default
(a) in the payment of the principal of or premium, if any,
or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which
under Section 1102 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected; provided, however, that so long as a Washington Water
Power Trust holds the Securities of any series, such trust may
not waive any past default without the consent of a majority in
aggregate liquidation amount of the outstanding Preferred
Securities issued by such trust 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 PREFERRED SECURITIES.
If the Securities of any series shall be held by the
Institutional Trustee of a Washington Water Power Trust and if such
Institutional Trustee, as such Holder, shall have failed to exercise
any of the rights and remedies available under this Indenture to the
Holders of such Securities, the holders of the Preferred Securities of
such trust shall have and may exercise all such rights and remedies,
to the same extent as if such holders of such Preferred Securities
held a principal amount of Securities of such series equal to the
liquidation amount of such Preferred 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 Preferred 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 Preferred Securities to exercise such rights as
contemplated in the preceding paragraph, the action taken by holders
of Preferred Securities shall control. Any such action taken by
registered holders of Preferred 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 Preferred Securities (and, upon the
reasonable request of the Trustee, the Company, as the sponsor of such
trust, shall, at its own expense, promptly provide copies of
applicable portions of such books and records to the Trustee to the
extent reasonably necessary to enable the Trustee to make such
determination).
ARTICLE EIGHT
THE TRUSTEE
SECTION 801. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default
with respect to Securities of any series,
(i) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties
as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may, with respect to Securities of such series,
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provisions hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to Securities
of any series shall have occurred and be continuing, the Trustee shall
exercise, with respect to Securities of such series, such of the
rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except
that:
(i) this subsection shall not be construed to limit
the effect of subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities
of any one or more series, as provided herein, relating to
the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture
with respect to the Securities of such series; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 802. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder with
respect to the Securities of any series to the Holders of Securities
of such series in the manner and to the extent required to do so by
the Trust Indenture Act, unless such default shall have been cured or
waived; provided, however, that in the case of any default of the
character specified in Section 701(c), no such notice to Holders shall
be given until at least seventy-five (75) days after the occurrence
thereof; and provided, further, that, subject to the provisions of
Section 801, the Trustee shall not be deemed to have knowledge of such
default unless either (i) a Responsible Officer of the Trustee shall
have actual knowledge of such default or (ii) the Trustee shall have
received written notice thereof from the Company or any Holder. For
the purpose of this Section, the term "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 Indenture at the
request or direction of any Holder pursuant to this Indenture,
unless such Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it complying with such request or
direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal business
hours, the books, records and premises of the Company, personally
or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of any
Event of Default with respect to the Securities of any series for
which it is acting as Trustee unless either (i) a Responsible
Officer of the Trustee shall have actual knowledge of the Event
of Default or (ii) written notice of such Event of Default shall
have been given to the Trustee by the Company, any other obligor
on such Securities or by any Holder of such Securities.
SECTION 804. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities (except
the Trustee's certificates of authentication) shall be taken as the
statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 805. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company or the
Trustee, in its individual or any other capacity, may become the owner
or pledgee of Securities and, subject to Sections 808 and 813, may
otherwise deal with the Company with the same rights it would have if
it were not such Trustee, Authenticating Agent, Paying Agent, Security
Registrar or other agent.
SECTION 806. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law.
The Trustee shall be under no liability for interest on or investment
of any money received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole benefit of, the
Company.
SECTION 807. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or made
by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent
that any such expense, disbursement or advance may be
attributable to its negligence, wilful misconduct or bad faith;
and
(c) indemnify the Trustee and hold it harmless from and
against any loss, liability or expense reasonably incurred by it
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the
performance of its duties hereunder, including the reasonable
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any
of its powers or duties hereunder, except to the extent any such
loss, liability or expense may be attributable to its negligence,
wilful misconduct or bad faith.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the
Trustee as such other than property and funds held in trust under
Section 603 (except moneys payable to the Company as provided in
Section 603). "TRUSTEE" for purposes of this Section shall include
any predecessor Trustee; provided, however, that the negligence,
wilful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.
SECTION 808. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the extent, in
the manner and with the effect, and subject to the conditions,
provided in the Trust Indenture Act and this Indenture. For purposes
of Section 310(b)(1) of the Trust Indenture Act and to the extent
permitted thereby, the Trustee, in its capacity as trustee in respect
of the Securities of any series, shall not be deemed to have a
conflicting interest arising from its capacity as trustee in respect
of the Securities of any other series.
SECTION 809. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall
be
(a) a corporation organized and doing business under the
laws of the United States, any State or Territory thereof or the
District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least Fifty Million Dollars ($50,000,000) and subject to
supervision or examination by Federal, State, Territorial or
District of Columbia authority, or
(b) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or
other Person organized and doing business under the laws of a
foreign government, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least Fifty Million Dollars ($50,000,000) or the Dollar
equivalent of the applicable foreign currency and subject to
supervision or examination by authority of such foreign
government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to United
States institutional trustees,
and, in either case, qualified and eligible under this Article and the
Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
such supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 810. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 811.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 811 shall not have been delivered to the Trustee
within thirty (30) days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 808
after written request therefor by the Company or by any
Holder who has been a bona fide Holder for at least six
months, or
(ii) the Trustee shall cease to be eligible under
Section 809 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may
remove the Trustee with respect to all Securities or (y) subject to
Section 714, any Holder who has been a bona fide Holder for at least
six (6) months may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause (other than as contemplated in clause (y) in
subsection (d) of this Section), with respect to the Securities of one
or more series, the Company, by a Board Resolution, shall take prompt
steps to appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be
only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section
811. If, within one (1) year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 811, become the successor Trustee with respect
to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in
the manner required by Section 811, any Holder who has been a bona
fide Holder of a Security of such series for at least six (6) months
may, on behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(f) So long as no event which is, or after notice or lapse
of time, or both, would become, an Event of Default shall have
occurred and be continuing, if the Company shall have delivered to the
Trustee with respect to the Securities of one or more series (i) a
Board Resolution appointing a successor Trustee or Trustees with
respect to that or those series, effective as of a date specified
therein, and (ii) an instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee or Trustees in
accordance with Section 811, the Trustee or Trustees with respect to
that or those series shall be deemed to have resigned as contemplated
in subsection (b) of this Section, the successor Trustee or Trustees
shall be deemed to have been appointed pursuant to subsection (e) of
this Section and such appointment shall be deemed to have been
accepted as contemplated in Section 811, all as of such date, and all
other provisions of this Section and Section 811 shall be applicable
to such resignation, appointment and acceptance except to the extent
inconsistent with this subsection (f).
(g) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities of
such series as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its
corporate trust office.
SECTION 811. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of all series, every such
successor Trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee,
without any further act, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of all sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of such series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such
successor Trustee, without any further act, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee, upon payment
of all sums owed to it, shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any instruments which fully vest in and confirm to such
successor Trustee all rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 812. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 813. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company
or any other obligor upon the Securities (other than by reason of a
relationship described in Section 311(b) of the Trust Indenture Act),
the Trustee shall be subject to any and all applicable provisions of
the Trust Indenture Act regarding the collection of claims against the
Company or such other obligor. For purposes of Section 311(b) of the
Trust Indenture Act:
(a) the term "CASH TRANSACTION" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency
or in checks or other orders drawn upon banks or bankers and
payable upon demand; and
(b) the term "SELF-LIQUIDATING PAPER" means any draft, 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 Authenticating Agent shall resign
immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation
succeeding to all or substantially all of the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to
be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing
of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee
may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section.
The provisions of Sections 308, 804 and 805 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one or
more series, or any Tranche thereof, shall be made pursuant to this
Section, the Securities of such series or Tranche may have endorsed
thereon, in addition to the Trustee's certificate of authentication,
an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
------------------------
As Trustee
By
----------------------
As Authenticating Agent
By
----------------------
Authorized Officer
If all of the Securities of a series may not be originally
issued at one time, and if the Trustee does not have an office capable
of authenticating Securities upon original issuance located in a Place
of Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by
the Company in writing (which writing need not comply with Section 102
and need not be accompanied by an Opinion of Counsel), shall appoint,
in accordance with this Section and in accordance with such procedures
as shall be acceptable to the Trustee, an Authenticating Agent having
an office in a Place of Payment designated by the Company with respect
to such series of Securities.
ARTICLE NINE
LISTS OF HOLDERS; REPORTS BY TRUSTEE AND COMPANY
SECTION 901. LISTS OF HOLDERS.
Semiannually, not later than June 30 and December 31 in each
year, commencing June 30, ____, and within 30 days of such other times
as the Trustee may request in writing, the Company shall furnish or
cause to be furnished to the Trustee information as to the names and
addresses of the Holders, as of a date no more than fifteen (15) days
prior to the date such information is so furnished, and the Trustee
shall preserve such information and similar information received by it
in any other capacity and afford to the Holders access to information
so preserved by it, all to such extent, if any, and in such manner as
shall be required by the Trust Indenture Act; provided, however, that
no such list need be furnished so long as the Trustee shall be the
Security Registrar.
SECTION 902. REPORTS BY TRUSTEE AND COMPANY.
Not later than July 15 in each year, commencing July 15,
____, the Trustee shall transmit to the Holders, the Commission and
each securities exchange upon which any Securities are listed, a
report, dated as of the next preceding May 15, with respect to any
events and other matters described in Section 313(a) of the Trust
Indenture Act, in such manner and to the extent required by the Trust
Indenture Act. The Trustee shall transmit to the Holders, the
Commission and each securities exchange upon which any Securities are
listed, and the Company shall file with the Trustee (within thirty
(30) days after filing with the Commission in the case of reports
which pursuant to the Trust Indenture Act must be filed with the
Commission and furnished to the Trustee) and transmit to the Holders,
such other information, reports and other documents, if any, at such
times and in such manner, as shall be required by the Trust Indenture
Act. The Company shall notify the Trustee of the listing of any
Securities on any securities exchange.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE
or Other Transfer
SECTION 1001. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any
other corporation, or convey or otherwise transfer, or lease, all of
its properties, as or substantially as an entirety, to any Person,
unless:
(a) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or other transfer, or which leases (for a term
extending beyond the last Stated Maturity of the Securities then
Outstanding), all of the properties of the Company, as or
substantially as an entirety, shall be a corporation organized
and existing under the laws of the United States, any State or
Territory thereof or the District of Columbia or under the laws
of Canada or any Province thereof (such corporation being
hereinafter sometimes called the "SUCCESSOR CORPORATION") and
shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the
principal of and premium, if any, and interest, if any, on all
the Securities then Outstanding and the performance and
observance of every covenant and condition of this Indenture to
be performed or observed by the Company; and
(b) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each of which
shall state that such consolidation, merger, conveyance or other
transfer or lease, and such supplemental indenture, comply with
this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
Anything in this Indenture to the contrary notwithstanding,
the conveyance or other transfer by the Company of all of its
facilities (a) for the generation of electric energy, (b) for the
transmission of electric energy or (c) for the distribution of
electric energy and/or natural gas, in each case considered alone, or
all of its facilities described in clauses (a) and (b), considered
together, or all of its facilities described in clauses (b) and (c),
considered together, shall in no event be deemed to constitute a
conveyance or other transfer of all the properties of the Company, as
or substantially as an entirety, unless, immediately following such
conveyance or other transfer, the Company shall own no properties in
the other such categories of property not so conveyed or otherwise
transferred. The character of particular facilities shall be
determined by reference to the Uniform System of Accounts prescribed
for public utilities and licensees subject to the Federal Power Act,
as amended, to the extent applicable.
SECTION 1002. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger or any conveyance or other
transfer of all the properties of the Company, as or substantially as
an entirety, in accordance with Section 1001, the Successor
Corporation shall succeed to, and be substituted for, and may exercise
every power and right of, the Company under this Indenture with the
same effect as if such Successor Corporation had been named as the
"Company" herein. Without limiting the generality of the foregoing,
the Successor Corporation may execute and deliver to the Trustee, and
thereupon the Trustee shall, subject to the provisions of Article
Three, authenticate and deliver, Securities. All Securities so
executed by the Successor Corporation, and authenticated and delivered
by the Trustee, shall in all respects be entitled to the benefits
provided by this Indenture equally and ratably with all Securities
executed, authenticated and delivered prior to the time such
consolidation, merger, conveyance or other transfer became effective.
SECTION 1003. RELEASE OF COMPANY UPON CONVEYANCE OR OTHER TRANSFER.
In the case of a conveyance or other transfer to any Person
or Persons as contemplated in Section 1001, upon the satisfaction of
all the conditions specified in Section 1001 the Company (such term
being used in this Section without giving effect to such transaction)
shall be released and discharged from all obligations and covenants
under this Indenture and on and under all Securities then Outstanding
(unless the Company shall have delivered to the Trustee an instrument
in which it shall waive such release and discharge) and the Trustee
shall acknowledge in writing that the Company has been so released and
discharged.
SECTION 1004. MERGER INTO COMPANY.
Nothing in this Indenture shall be deemed to prevent or
restrict any consolidation or merger after the consummation of which
the Company would be the surviving or resulting corporation or any
conveyance or other transfer, or lease of any part of the properties
of the Company which does not constitute the entirety, or
substantially the entirety, thereof.
SECTION 1005. TRANSFER OF LESS THAN THE ENTIRETY.
(a) If the Company shall have conveyed or otherwise transferred
any part of its properties which does not constitute the entirety, or
substantially the entirety, thereof to another corporation meeting the
requirements set forth in clause (a) of the first paragraph of Section
1001 and if:
(i) the transferee of such part of the properties of the
Company shall have executed and delivered to the Trustee an
indenture supplemental hereto, in form reasonably satisfactory to
the Trustee, which contains an assumption by such transferee of
the due and punctual payment of the principal of and premium, if
any, and interest, if any, on all the Securities then Outstanding
and the performance and observance of every covenant and
condition of this Indenture to be performed or observed by the
Company;
(ii) there shall have been delivered to the Trustee an
Independent Expert's Certificate
(A) describing the property so conveyed or otherwise
transferred (such description of property to be made by
reference either to specific items, units and/or elements of
property or portions thereof, on a percentage or Dollar
basis, or to properties reflected in specified accounts in
the Company's books of account or portions thereof, on a
Dollar basis); provided, however, that such property shall
be identified in such certificate as facilities for the
generation, transmission or destruction of electric energy
or for the storage, transportation or distribution of
natural gas;
(B) stating, in the judgment of the signers, the Fair
Value to the transferee of the property so conveyed or
otherwise transferred;
(C) stating an amount equal to seventy percent (70%)
of the amount stated pursuant to clause (B) above;
(D) stating an amount equal to the aggregate principal
amount of the Securities then Outstanding; and
(E) stating that the amount stated pursuant to clause
(D) above does not exceed the amount stated pursuant to
clause (C) above;
(iii) the Company shall have assigned or otherwise
transferred to such transferee all Common Securities then
outstanding, and such transferee shall have expressly assumed all
obligations under all Guarantees and the guarantees relating to
all Common Securities then outstanding; and
(iv) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel each of which
shall state that such conveyance or other transfer and such
supplemental indenture comply with this Section and that all
conditions precedent relating to such transactions provided for
in this Section and otherwise in this Indenture have been
complied with;
then, upon the satisfaction of all such conditions,
(x) the Company shall be released and discharged from all
obligations and covenants under this Indenture and on and under
all Securities then Outstanding (unless the Company shall have
delivered to the Trustee an instrument in which it shall waive
such release and discharge), and the Trustee shall acknowledge in
writing that the Company has been so released and discharged; and
(y) if the Company shall have been released and discharged
as contemplated in clause (x) above, such transferee shall
succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same
effect as if such transferee had been named the "Company" herein;
and without limiting the generality of the foregoing, such
transferee shall be deemed a "Successor Corporation" for purposes
of Section 1002 and for all other purposes of this Indenture.
(b) For purposes of this Section:
"FAIR VALUE" means the fair value of such property so
conveyed or otherwise transferred as may be determined by
reference to (a) the amount which would be likely to be
obtained in an arm's-length transaction with respect to such
property between an informed and willing buyer and an
informed and willing seller, under no compulsion,
respectively, to buy or sell, (b) the amount of investment
with respect to such property which, together with a
reasonable return thereon, would be likely to be recovered
through ordinary business operations or otherwise, (c) the
cost, accumulated depreciation and replacement cost with
respect to such property and/or (d) any other relevant
factors; provided, however, that (x) the Fair Value of
property shall be determined without deduction for any
mortgage, deed of trust, pledge, security interest,
encumbrance, lease, reservation, restriction, servitude,
charge or similar right or any other lien of any kind on
such property and (y) the Fair Value to the transferee of
any property shall not reflect any reduction relating to the
fact that such property may be of less value to a Person
which is not the owner or operator of the property or any
portion thereof than to a Person which is such owner or
operator. Fair Value may be determined, without physical
inspection, by the use of accounting and engineering records
and other data maintained by the Company or the transferee
or otherwise available to the Expert certifying the same.
"INDEPENDENT EXPERT'S CERTIFICATE" means a certificate
signed by an authorized officer of the transferee and by an
Independent Expert (which Independent Expert shall be
selected either by the board of directors or by an
authorized officer of the transferee, the execution of such
certificate by such authorized officer to be conclusive
evidence of such selection) and delivered to the Trustee.
For purposes of this definition, (a) "EXPERT" means a Person
which is an engineer, appraiser or other expert and which,
with respect to any certificate to be signed by such Person
and delivered to the Trustee, is qualified to pass upon the
matter set forth in such certificate; (b) "ENGINEER" means
a Person engaged in the engineering profession or otherwise
qualified to pass upon engineering matters (including, but
not limited to, a Person licensed as a professional
engineer, whether or not then engaged in the engineering
profession) and (c) "APPRAISER" means a Person engaged in
the business of appraising property or otherwise qualified
to pass upon the Fair Value or fair market value of
property. "INDEPENDENT", when applied to any Expert, means
such a Person who (a) is in fact independent, (b) does not
have any direct material financial interest in the
transferee or in any obligor upon the Securities or in any
Affiliate of the transferee, (c) is not connected with the
transferee or such other obligor as an officer, employee,
promoter, underwriter, trustee, partner, director or any
person performing similar functions and (d) is approved by
the Trustee in the exercise of reasonable care.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form reasonably satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities, all
as provided in Article Ten; or
(b) to add one or more covenants of the Company or
other provisions for the benefit of all Holders or for the
benefit of the Holders of, or to remain in effect only so
long as there shall be Outstanding, Securities of one or
more specified series, or one or more specified Tranches
thereof, or to surrender any right or power herein conferred
upon the Company; or
(c) to change or eliminate any provision of this
Indenture or to add any new provision to this Indenture;
provided, however, that if such change, elimination or
addition shall adversely affect the interests of the Holders
of Securities of any series or Tranche in any material
respect, such change, elimination or addition shall become
effective with respect to such series or Tranche only when
no Security of such series or Tranche remains Outstanding;
or
(d) to provide collateral security for the Securities;
or
(e) to establish the form or terms of Securities of
any series or Tranche as contemplated by Sections 201 and
301; or
(f) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the
procedures for the registration, exchange and replacement
thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof,
and for any and all other matters incidental thereto; or
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 811(b); or
(h) to provide for the procedures required to permit
the Company to utilize, at its option, a non-certificated
system of registration for all, or any series or Tranche of,
the 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 Trust Indenture
Act to be contained herein or are contained herein to
reflect any provisions of the Trust Indenture Act as in
effect at such date, this Indenture shall be deemed to have
been amended to effect such changes or elimination, and the
Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to
amend this Indenture to effect such changes or elimination.
SECTION 1102. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 1101, with the consent
of the Holders of a majority in aggregate principal amount of the
Securities of all series then Outstanding under this Indenture,
considered as one class, by Act of said Holders delivered to the
Company and the Trustee, the Company and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding
any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture; provided, however, that if there shall
be Securities of more than one series Outstanding hereunder and if a
proposed supplemental indenture shall directly affect the rights of
the Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all series
so directly affected, considered as one class, shall be required; and
provided, further, that if the Securities of any series shall have
been issued in more than one Tranche and if the proposed supplemental
indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches, then
the consent only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all Tranches so directly
affected, considered as one class, shall be required; and provided,
further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security
other than pursuant to the terms thereof, or reduce the
principal amount thereof or the rate of interest thereon (or
the amount of any installment of interest thereon) or change
the method of calculating such rate or reduce any premium
payable thereon, or reduce the amount of the principal of
any Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 702, or change the coin or currency (or other
property), in which any Security or premium, if any, or
interest, if any, thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or
after the Maturity of any Security, without, in any such
case, the consent of the Holder of such Security; or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, or any Tranche
thereof, the consent of the Holders of which is required for
any such supplemental indenture, or the consent of the
Holders of which is required for any waiver of compliance
with any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements
of Section 1204 for quorum or voting, without, in any such
case, the consent of the Holder of each Outstanding Security
of such series or Tranche; or
(c) modify any of the provisions of this Section,
Section 506 or Section 713 with respect to the Securities of
any series or any Tranche thereof (except to increase the
percentages in principal amount referred to in this Section
or such other Sections or to provide that other provisions
of this Indenture cannot be modified or waived without the
consent of the Holders of all Securities of such series or
Tranche) without, in any such case, the consent of the
Holder of each Outstanding Security of such series or
Tranche; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 811(b) and
1101(g).
A supplemental indenture which (x) changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of the Holders of, or which is to
remain in effect only so long as there shall be Outstanding,
Securities of one or more specified series, or one or more Tranches
thereof, or (y) modifies the rights of the Holders of Securities of
such series or Tranches with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or Tranche.
Notwithstanding the foregoing, so long as the Securities of
any series are held by a Washington Water Power Trust, the trustee may
not consent to a supplemental indenture under this Section 1102
without the prior consent, obtained as provided in the Declaration
establishing such trust of the holders of a majority in aggregate
liquidation amount of all Preferred Securities issued by such trust,
or, in the case of changes described in clauses (a), (b) and (c)
above, 100% in aggregate liquidation amount of all such Preferred
Securities then outstanding.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 1103. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 801)
shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities
under this Indenture or otherwise.
SECTION 1104. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution and delivery of any supplemental
indenture under this Article this Indenture shall be modified in
accordance 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.
SECTION 1107. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
To the extent, if any, that the terms of any particular
series of Securities shall have been established in or pursuant to a
Board Resolution or an Officer's Certificate pursuant to a
supplemental indenture or a Board Resolution as contemplated by
Section 301, and not in a supplemental indenture, additions to,
changes in or the elimination of any of such terms may be effected by
means of a supplemental Board Resolution or a supplemental Officer's
Certificate, as the case may be, delivered to, and accepted by, the
Trustee; provided, however, that such supplemental Board Resolution or
supplemental Officer's Certificate shall not be accepted by the
Trustee or otherwise be effective unless all conditions set forth in
this Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a supplemental
indenture shall have been appropriately satisfied. Upon the
acceptance thereof by the Trustee, any such supplemental Board
Resolution or supplemental Officer's Certificate shall be deemed to be
a "supplemental indenture" for purposes of Section 1104 and 1106.
ARTICLE TWELVE
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1201. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, may be called at any time
and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken
by Holders of Securities of such series or Tranches.
SECTION 1202. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders
of Securities of one or more, or all, series, or any Tranche or
Tranches thereof, for any purpose specified in Section 1201, to be
held at such time and (except as provided in subsection (b) of this
Section) at such place in the Borough of Manhattan, The City of New
York, as the Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting, setting
forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than twenty-one (21) nor more
than one hundred eighty (180) days prior to the date fixed for the
meeting.
(b) The Trustee may be asked to call a meeting of the
Holders of Securities of one or more, or all, series, or any Tranche
or Tranches thereof, by the Company or by the Holders of thirty-three
per centum (33%) in aggregate principal amount of all of such series
and Tranches, considered as one class, for any purpose specified in
Section 1201, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting. If the Trustee shall
have been asked by the Company to call such a meeting, the Company
shall determine the time and place for such meeting and may call such
meeting by giving notice thereof in the manner provided in subsection
(a) of this Section, or shall direct the Trustee, in the name and at
the expense of the Company, to give such notice. If the Trustee shall
have been asked to call such a meeting by Holders in accordance with
this subsection (b), and the Trustee shall not have given the notice
of such meeting within twenty-one (21) days after receipt of such
request or shall not thereafter proceed to cause the meeting to be
held as provided herein, then the Holders of Securities of such series
and Tranches, in the principal amount above specified, may determine
the time and the place in the Borough of Manhattan, The City of New
York, or in such other place as shall be determined or approved by the
Company, for such meeting and may call such meeting for such purposes
by giving notice thereof as provided in subsection (a) of this
Section.
(c) Any meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, shall be valid
without notice if the Holders of all Outstanding Securities of such
series or Tranches are present in person or by proxy and if
representatives of the Company and the Trustee are present, or if
notice is waived in writing before or after the meeting by the Holders
of all Outstanding Securities of such series, or any Tranche or
Tranches thereof, or by such of them as are not present at the meeting
in person or by proxy, and by the Company and the Trustee.
SECTION 1203. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, a Person shall be (a) a Holder of one or more Outstanding
Securities of such series or Tranches, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series or Tranches by such Holder or
Holders. The only Persons who shall be entitled to attend any meeting
of Holders of Securities of any series or Tranche shall be the Persons
entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives
of the Company and its counsel.
SECTION 1204. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called as
hereinbefore provided, considered as one class, shall constitute a
quorum for a meeting of Holders of Securities of such series and
Tranches; provided, however, that if any action is to be taken at such
meeting which this Indenture expressly provides may be taken by the
Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities
of such series and Tranches, considered as one class, shall constitute
a quorum. In the absence of a quorum within one hour of the time
appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be
dissolved. In any other case the meeting may be adjourned for such
period as may be determined by the chairman of the meeting prior to
the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further
adjourned for such period as may be determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Except as
provided by Section 1205(e), notice of the reconvening of any meeting
adjourned for more than thirty (30) days shall be given as provided in
Section 106 not less than ten (10) days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding Securities of such
series and Tranches which shall constitute a quorum.
Except as limited by Section 1102, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of the series and Tranches with respect to
which such meeting shall have been called, considered as one class;
provided, however, that, except as so limited, any resolution with
respect to any action which this Indenture expressly provides may be
taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such
series and Tranches, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities
of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section shall
be binding on all the Holders of Securities of the series and Tranches
with respect to which such meeting shall have been held, whether or
not present or represented at the meeting.
SECTION 1205. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may be
in person or by proxy; and, to the extent permitted by law, any such
proxy shall remain in effect and be binding upon any future Holder of
the Securities with respect to which it was given unless and until
specifically revoked by the Holder or future Holder (except as
provided in Section 104(g)) of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities in regard to proof
of the holding of such Securities and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations and approved
by the Company, the holding of Securities shall be proved in the
manner specified in Section 104 and the appointment of any proxy shall
be proved in the manner specified in Section 104. Such regulations
may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders as provided in Section
1202(b), in which case the Company or the Holders of Securities of the
series and Tranches calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of all series and Tranches represented at
the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled
to one vote for each One Thousand Dollars ($1,000) principal amount of
Outstanding Securities held or represented by such Holder; provided,
however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security
or proxy.
(e) Any meeting duly called pursuant to Section 1202 at
which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of all series and Tranches represented at
the meeting, considered as one class; and the meeting may be held as
so adjourned without further notice.
SECTION 1206. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed the
signatures of the Holders or of their representatives by proxy and the
principal amounts and serial numbers of the Outstanding Securities, of
the series and Tranches with respect to which the meeting shall have
been called, held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all
votes cast at the meeting for or against any resolution and who shall
make and file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Holders shall be prepared by the
secretary of the meeting and there shall be attached to such record
the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge
of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 1202 and, if
applicable, Section 1204. Each copy shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting
and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters
therein stated.
SECTION 1207. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization,
direction, notice, consent, waiver or other action may be made, given
or taken by Holders by written instruments as provided in Section 104.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
and Directors
SECTION 1301. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Securities, or any
part thereof, or for any claim based thereon or otherwise in respect
thereof, or of the indebtedness represented thereby, or upon any
obligation, covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such, past, present
or future, of the Company or of any predecessor or successor
corporation (either directly or through the Company or a predecessor
or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed and
understood that this Indenture and all the Securities are solely
corporate obligations and that no personal liability whatsoever shall
attach to, or be incurred by, any incorporator, stockholder, officer
or director, past, present or future, of the Company or of any
predecessor or successor corporation, either directly or indirectly
through the Company or any predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of
any of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied herefrom or
therefrom; and such personal liability, if any, is hereby expressly
waived and released as a condition of, and as part of the
consideration for, the execution and delivery of this Indenture and
the issuance of the Securities.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of the Securities of each
series, by its acceptance thereof, likewise covenants and agrees, that
the payment of the principal of and premium, if any, and interest, if
any, on each and all of the Securities is hereby expressly
subordinated and subject to the extent and in the manner set forth in
this Article, in right of payment to the prior payment in full of all
Senior Indebtedness.
Each Holder of the Securities of each series, by its
acceptance thereof, authorizes and directs the Trustee on its behalf
to take such action as may be necessary or appropriate to effectuate
the subordination as provided in this Article, and appoints the
Trustee its attorney-in-fact for any and all such purposes.
SECTION 1402. PAYMENT OVER OF PROCEEDS OF SECURITIES.
In the event (a) of any insolvency or bankruptcy proceedings
or any receivership, liquidation, reorganization or other similar
proceedings in respect of the Company or a substantial part of its
property, or of any proceedings for liquidation, dissolution or other
winding-up of the Company, whether or not involving insolvency or
bankruptcy, or (b) subject to the provisions of Section 1403, that (i)
a default shall have occurred with respect to the payment of principal
of or interest on or other monetary amounts due and payable on any
Senior Indebtedness, or (ii) there shall have occurred a default
(other than a default in the payment of principal or interest or other
monetary amounts due and payable) in respect of any Senior
Indebtedness, as defined therein or in the instrument under which the
same is outstanding, permitting the holder or holders thereof to
accelerate the maturity thereof (with notice or lapse of time, or
both), and such default shall have continued beyond the period of
grace, if any, in respect thereof, and, in the cases of subclauses (i)
and (ii) of this clause (b), such default shall not have been cured or
waived or shall not have ceased to exist, or (c) that the principal of
and accrued interest on the Securities of any series shall have been
declared due and payable pursuant to Section 701 and such declaration
shall not have been rescinded and annulled as provided in Section 702,
then:
(1) the holders of all Senior Indebtedness shall
first be entitled to receive payment of the full amount
due thereon, or provision shall be made for such
payment in money or money's worth, before the Holders
of any of the Securities are entitled to receive a
payment on account of the principal of or interest on
the indebtedness evidenced by the Securities,
including, without limitation, any payments made
pursuant to Article Four;
(2) any payment by, or distribution of assets of,
the Company of any kind or character, whether in cash,
property or securities, to which any Holder or the
Trustee would be entitled except for the provisions of
this Article, shall be paid or delivered by the person
making such payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of such Senior
Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of
such Senior Indebtedness held or represented by each,
to the extent necessary to make payment in full of all
Senior Indebtedness remaining unpaid after giving
effect to any concurrent payment or distribution (or
provision therefor) to the holders of such Senior
Indebtedness, before any payment or distribution is
made to the Holders of the indebtedness evidenced by
the Securities or to the Trustee under this Indenture;
and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of assets
of, the Company of any kind or character, whether in
cash, property or securities, in respect of principal
of or interest on the Securities or in connection with
any repurchase by the Company of the Securities, shall
be received by the Trustee or any Holder before all
Senior Indebtedness is paid in full, or provision is
made for such payment in money or money's worth, such
payment or distribution in respect of principal of or
interest on the Securities or in connection with any
repurchase by the Company of the Securities shall be
paid over to the holders of such Senior Indebtedness or
their representative or representatives or to the
trustee or trustees under any indenture under which any
instruments evidencing any such Senior Indebtedness may
have been issued, ratably as aforesaid, for application
to the payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness shall have
been paid in full, after giving effect to any
concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the 123rd
day following the date of deposit of cash or Government Obligations
pursuant to Section 601 (provided all conditions set out in such
Section shall have been satisfied), the funds so deposited and any
interest thereon will not be subject to any rights of holders of
Senior Indebtedness including, without limitation, those arising under
this Article Fourteen; provided that no event described in clause (e)
of Section 701 with respect to the Company has occurred during such
123-day period.
For purposes of this Article only, the words "cash, property
or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or
any other corporation provided for by a plan or reorganization or
readjustment which are subordinate in right of payment to all Senior
Indebtedness which may at the time be outstanding to the same extent
as, or to a greater extent than, the Securities are so subordinated as
provided in this Article. The consolidation of the Company with, or
the merger of the Company into, another corporation or the liquidation
or dissolution of the Company following the conveyance or transfer of
its property as an entirety, or substantially as an entirety, to
another corporation upon the terms and conditions provided for in
Article Ten hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 1402 if
such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article
Ten hereof. Nothing in Section 1401 or in this Section 1402 shall
apply to claims of, or payments to, the Trustee under or pursuant to
Section 807.
SECTION 1403. DISPUTES WITH HOLDERS OF CERTAIN SENIOR INDEBTEDNESS.
Any failure by the Company to make any payment on or perform
any other obligation in respect of Senior Indebtedness, other than any
indebtedness incurred by the Company or assumed or guaranteed,
directly or indirectly, by the Company for money borrowed (or any
deferral, renewal, extension or refunding thereof) or any other
obligation as to which the provisions of this Section shall have been
waived by the Company in the instrument or instruments by which the
Company incurred, assumed, guaranteed or otherwise created such
indebtedness or obligation, shall not be deemed a default under clause
(b) of Section 1402 if (i) the Company shall be disputing its
obligation to make such payment or perform such obligation and (ii)
either (A) no final judgment relating to such dispute shall have been
issued against the Company which is in full force and effect and is
not subject to further review, including a judgment that has become
final by reason of the expiration of the time within which a party may
seek further appeal or review, or (B) in the event that a judgment
that is subject to further review or appeal has been issued, the
Company shall in good faith be prosecuting an appeal or other
proceeding for review and a stay or execution shall have been obtained
pending such appeal or review.
SECTION 1404. SUBROGATION.
Senior Indebtedness shall not be deemed to have been paid in
full unless the holders thereof shall have received cash (or
securities or other property satisfactory to such holders) in full
payment of such Senior Indebtedness then outstanding. Subject to the
prior payment in full of all Senior Indebtedness, the rights of the
Holders of the Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive any further payments or
distributions of cash, property or securities of the Company
applicable to the holders of the Senior Indebtedness until all amounts
owing on the Securities shall be paid in full; and such payments or
distributions of cash, property or securities received by the Holders
of the Securities, by reason of such subrogation, which otherwise
would be paid or distributed to the holders of such Senior
Indebtedness shall, as between the Company, its creditors other than
the holders of Senior Indebtedness, and the Holders, be deemed to be a
payment by the Company to or on account of Senior Indebtedness, it
being understood that the provisions of this Article are and are
intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of the Senior Indebtedness,
on the other hand.
SECTION 1405. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as
among the Company, its creditors other than the holders of Senior
Indebtedness and the Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders the principal of and
interest on the Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders and creditors of the Company
other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or any Holder from exercising
all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of
the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such
remedy.
Upon any payment or distribution of assets or securities of
the Company referred to in this Article, the Trustee and the Holders
shall be entitled to rely upon any order or decree of a court of
competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending for the purpose
of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon, and all other facts
pertinent thereto or to this Article.
SECTION 1406. PRIORITY OF SENIOR INDEBTEDNESS UPON MATURITY.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or otherwise, all matured
principal of Senior Indebtedness and interest and premium, if any,
thereon shall first be paid in full before any payment of principal or
premium, if any, or interest, if any, is made upon the Securities or
before any Securities can be acquired by the Company or any sinking
fund payment is made with respect to the Securities (except that
required sinking fund payments may be reduced by Securities acquired
before such maturity of such Senior Indebtedness).
SECTION 1407. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all rights set forth in
this Article with respect to any Senior Indebtedness at any time held
by it, to the same extent as any other holder of Senior Indebtedness.
Nothing in this Article shall deprive the Trustee of any of its rights
as such holder.
SECTION 1408. NOTICE TO TRUSTEE TO EFFECTUATE SUBORDINATION.
Notwithstanding the provisions of this Article or any other
provision of the Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the
making of any payment of moneys to or by the Trustee unless and until
the Trustee shall have received written notice thereof from the
Company, from a Holder or from a holder of any Senior Indebtedness or
from any representative or representatives of such holder and, prior
to the receipt of any such written notice, the Trustee shall be
entitled, subject to Section 801, in all respects to assume that no
such facts exist; provided, however, that, if prior to the fifth
Business Day preceding the date upon which by the terms hereof any
such moneys may become payable for any purpose, or in the event of the
execution of an instrument pursuant to Section 602 acknowledging
satisfaction and discharge of this Indenture, then if prior to the
second Business Day preceding the date of such execution, the Trustee
shall not have received with respect to such moneys the notice
provided for in this Section, then, anything herein contained to the
contrary notwithstanding, the Trustee may, in its discretion, receive
such moneys and/or apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary,
which may be received by it on or after such date; provided, however,
that no such application shall affect the obligations under this
Article of the persons receiving such moneys from the Trustee.
SECTION 1409. MODIFICATION, EXTENSION, ETC. OF SENIOR INDEBTEDNESS.
The holders of Senior Indebtedness may, without affecting in
any manner the subordination of the payment of the principal of and
premium, if any, and interest, if any, on the Securities, at any time
or from time to time and in their absolute discretion, agree with the
Company to change the manner, place or terms of payment, change or
extend the time of payment of, or renew or alter, any Senior
Indebtedness, or amend or supplement any instrument pursuant to which
any Senior Indebtedness is issued, or exercise or refrain from
exercising any other of their rights under the Senior Indebtedness
including, without limitation, the waiver of default thereunder, all
without notice to or assent from the Holders or the Trustee.
SECTION 1410. TRUSTEE HAS NO FIDUCIARY DUTY TO HOLDERS OF SENIOR
INDEBTEDNESS.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants
and objectives as are specifically set forth in this Indenture, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such
holders if it shall mistakenly pay over or deliver to the Holders or
the Company or any other Person, money or assets to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
SECTION 1411. PAYING AGENTS OTHER THAN THE TRUSTEE.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder,
the term "Trustee" as used in this Article shall in such case (unless
the context shall otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided, however,
that Sections 1407, 1408 and 1410 shall not apply to the Company if it
acts as Paying Agent.
SECTION 1412. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT IMPAIRED.
No right of any present or future holder of Senior
Indebtedness to enforce the subordination herein shall at any time or
in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any noncompliance by the Company with
the terms, provisions and covenants of this Indenture, regardless of
any knowledge thereof any such holder may have or be otherwise charged
with.
SECTION 1413. EFFECT OF SUBORDINATION PROVISIONS; TERMINATION.
Notwithstanding anything contained herein to the contrary,
other than as provided in the immediately succeeding sentence, all the
provisions of this Indenture shall be subject to the provisions of
this Article, so far as the same may be applicable thereto.
Notwithstanding anything contained herein to the contrary,
the provisions of this Article Fourteen shall be of no further effect
with respect to all or a portion of Senior Indebtedness, and the
Securities shall no longer be subordinated in right of payment to the
prior payment of such Senior Indebtedness, to the extent that the
Company shall have delivered to the Trustee a notice to such effect
specifying therein such Senior Indebtedness to which the Securities
shall no longer be subordinated. Any such notice delivered by the
Company shall not be deemed to be a supplemental indenture for
purposes of Article Twelve hereof.
_________________________
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above
written.
THE WASHINGTON WATER POWER COMPANY
By:
------------------------------------
WILMINGTON TRUST COMPANY, Trustee
By:
------------------------------------
Exhibit 4(a)-11
THE WASHINGTON WATER POWER COMPANY
OFFICER'S CERTIFICATE
(Under Section 301 of the Indenture,
dated as of 1, 199 )
-------- -
I, the undersigned Lawrence J. Pierce, a Vice President
and the Treasurer of THE WASHINGTON WATER POWER COMPANY (the
"Company"), in accordance with Section 301 of the Indenture,
dated as of 1, 199 (the "Indenture", capitalized
----------- -
terms used herein and not defined herein having the meanings
specified in the Indenture), of the Company to Wilmington Trust
Company, trustee (the "Trustee"), do hereby establish a series of
Securities having the terms and characteristics set forth below
(the lettered clauses set forth below corresponding to the
lettered subsections of Section 301 of the Indenture):
(a) the title of the Securities of such series shall
be " % of Junior Subordinated Deferrable Interest
--
Debentures, Series A (the "Debentures"); the Debentures are
to be issued and sold to Washington Water Power Capital I, a
Washington Water Power Trust; and all references herein to
the Declaration, the Institutional Trustee, the Trust
Securities and the Preferred Securities relate to such
Washington Water Power Trust;
(b) the aggregate principal amount of Debentures which
may be authenticated and delivered under the Indenture shall
be limited to $ , except as contemplated in
-------------
Section 301(b) of the Indenture;
(c) interest on the Debentures shall be payable to the
Person or Persons in whose names the Debentures are
registered at the close of business on the Regular Record
Date for such interest, except as otherwise expressly
provided in the form of Debenture attached hereto and hereby
authorized and approved;
(d) the principal of the Debentures shall be payable
on , 20 ;
-------- -- --
(e) (i) the Debentures shall bear interest at the
rate of % per annum of the principal amount thereof,
--
payable quarterly in arrears on March 31, June 30, September
30 and December 31 of each year (each, an "Interest Payment
Date"), commencing , 199 .
-------- -- -
(ii) interest on the Debentures shall accrue
from, and including, the date of original issuance and will
accrue to, and including, the first Interest Payment Date,
and thereafter will accrue from, and including, the day next
succeeding the most recent Interest Payment Date through
which interest has been paid or duly provided for to, and
including, the next succeeding Interest Payment Date. In
the event that any Interest Payment Date is not a Business
Day, then payment of the interest payable on such date shall
be made on the next succeeding Business Day, except that, if
such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding
Business Day; and, if such payment is made or duly provided
for on such next succeeding Business Day, no interest shall
accrue on such amount for the period from and after such
Interest Payment Date to such Business Day; and, if such
payment is made or duly provided for on such next preceding
Business Day, the amount of such payment shall not reflect
any reduction in the amount of interest accrued;
(iii) interest that is in arrears for more
than one quarter shall bear additional interest on the
amount thereof, to the extent permitted by law, at the rate
of % per annum thereof, compounded quarterly;
--
(iv) so long as no Event of Default shall have
occurred and be continuing, the Company shall have the
right, at any time and from time to time, to extend the
interest payment period with respect to the Debentures to a
period not exceeding 20 consecutive quarters from the last
Interest Payment Date to which interest was paid in full (an
"Extension Period") during which period interest will be
compounded quarterly. Prior to the termination of the
Extension Period, the Company may, and at the end of the
Extension Period the Company shall, pay all interest accrued
(together with interest thereon at the rate of % per annum
--
to the extent permitted by applicable law). Upon such
payment in full, such Extension Period shall terminate.
Prior to the termination of any such Extension Period, the
Company may further extend the interest payment period;
provided, however, that such Extension Period, together with
all such previous and further extensions thereof, shall not
exceed 20 consecutive quarters or extend beyond the Stated
Maturity of the Debentures. Upon termination of any such
Extension Period and upon the payment of all accrued
interest then due, the Company may elect to begin a new
Extension Period, subject to the above requirements. No
interest shall be due and payable during an Extension
Period, except at the end thereof. The Company shall give
the Trustee and the trustees of the Washington Water Power
Trust written notice of (i) any election by the Company to
initiate an Extension Period and the duration thereof, (ii)
any election by the Company to extend an Extension Period
beyond the date on which that Extension Period is then
scheduled to terminate and the duration of such extension
and (iii) any election by the Company to make a full payment
of interest accrued on the Debentures on any date during an
Extension Period and the amount of such payment. The
Company shall give such notice of any election described in
clause (i) or (ii) in the next preceding sentence not less
than 10 days prior to the Regular Record Date with respect
to the next Interest Payment Date on which interest on the
Debentures would otherwise be payable; and the Company shall
give such notice of any election described in clause (iii)
in the next preceding sentence in accordance with the
provisions of Section 307 of the Indenture.
(f) the corporate trust office of Wilmington Trust
Company in Wilmington, Delaware shall be the place at which
(i) the principal of, premium, if any, and interest, if any,
on the Debentures at Maturity shall be payable upon
presentment, interest prior to Maturity to be paid as
specified in the form of Debenture attached hereto, (ii)
registration of transfer of the Debentures may be effected,
(iii) exchanges of Debentures may be effected and (iv)
notices and demands to or upon the Company in respect of the
Debentures and the Indenture may be served; and Wilmington
Trust Company shall be the Security Registrar and a Paying
Agent for the Debentures; provided, however, that the
Company reserves the right to change, by one or more
Officer's Certificates supplemental to this Officer's
Certificate, any such place or the Security Registrar or
such Paying Agent; and provided, further, that the Company
reserves the right to designate, by one or more Officer's
Certificates supplemental to this Officer's Certificate, its
principal corporate office in Spokane, Washington as any
such place or itself as the Security Registrar;
(g) (i) the Debentures shall be subject to redemption
at any time on or after , 20 , in whole or in
-------- -- --
part, at the election of the Company, at a redemption price
equal to 100% of the principal amount thereof plus accrued
interest, if any (including Additional Interest (as defined
herein), if any), to the date fixed for redemption;
provided, however, that the Debentures shall not be so
redeemable in part unless all interest (including any
Additional Interest) accrued through the most recent
quarterly interest period ended on or prior to the date
fixed for redemption shall have been paid;
(ii) the Debentures shall be subject to
redemption, in whole but not in part, at the election of the
Company, on any date within 90 days of the occurrence, and
during the continuation, of a Tax Event (as defined herein)
at a redemption price equal to 100% of the principal amount
thereof plus accrued interest, if any (including Additional
Interest, if any), to the date fixed for redemption;
"Tax Event" means the receipt by the Company of an
opinion of counsel to the effect that, as a result of (a)
any amendment to, clarification of or change (including any
announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein
affecting taxation, (b) any judicial decision, official
administrative pronouncement, ruling, regulatory procedure,
notice or announcement, including any notice or announcement
of intent to adopt such procedures or regulations (an
"Administrative Action") or (c) any amendment to,
clarification of, or change in the official position or the
interpretation of such Administrative Action or judicial
decision that differs from the theretofore generally
accepted position, in each case, by any legislative body,
court, governmental authority or regulatory body,
irrespective of the manner in which such amendment,
clarification or change is made known, which amendment,
clarification, or change is effective or such pronouncement
or decision is announced, in each case, on or after, the
date of the original issuance of the Debentures (including
the enactment of any legislation or the publication of any
judicial decision or regulatory determination on or after
such date), there is more than an insubstantial risk that
(i) the Washington Water Power Trust, if any, holding the
Debentures is or will be within 90 days of the date of such
amendment, clarification or change, subject to United States
federal income tax with respect to interest accrued or
received on the Debentures, (ii) such Washington Water Power
Trust is, or will be within 90 days of the date of such
amendment, clarification or change, subject to more than a
de minimis amount of taxes, duties or other governmental
charges or (iii) interest payable on the Debentures is not,
or within 90 days of the date of such amendment,
clarification or change will not be, deductible, in whole or
in part, by the Company for United States federal income tax
purposes;
(h) inapplicable;
(i) inapplicable;
(j) inapplicable;
(k) inapplicable;
(l) inapplicable;
(m) inapplicable;
(n) inapplicable;
(o) inapplicable;
(p) inapplicable;
(q) inapplicable;
(r) inapplicable;
(s) (i) the Debentures are to be initially
registered in the name of Wilmington Trust Company, as
Institutional Trustee of the Washington Water Power Trust.
The Debentures shall not be transferable, nor shall any
purported transfer be registered, except (A) to a nominee of
such Institutional Trustee, to such Institutional Trustee by
such nominee, by such Institutional Trustee to another
nominee, by any such nominee to a successor nominee or by
such Institutional Trustee or any nominee thereof to a
successor Institutional Trustee or a nominee thereof or (B)
to the holders of Trust Securities in the event of the
termination of the Washington Water Power Trust in
accordance with the provisions of the Declaration;
(ii) no service charge shall be made for the
registration of transfer or exchange of Debentures;
provided, however, that, after any distribution of the
Debentures contemplated in clause (i)(B) above, the Company
may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection with the
exchange or transfer;
(t) (i) "Business Days" shall be determined by
reference to both the City of Wilmington, Delaware or other
Place of Payment and to The City of New York;
(ii) reference is made to clause(e)(ii) above; and
(u) (i) if, at any time while the Institutional
Trustee is the Holder of the Debentures, the Washington
Water Power Trust or the Institutional Trustee is required
to pay any taxes, duties, assessments or governmental
charges of whatever nature (other than withholding taxes)
imposed by the United States, or any other taxing authority,
then, in any such case, the Company will pay as additional
interest ("Additional Interest") on the Debentures such
additional amounts as shall be required so that the net
amounts received and retained by the Washington Water Power
Trust and the Institutional Trustee after paying such taxes,
duties, assessments or other governmental charges will be
equal to the amounts such trust and trustee would have
received had no such taxes, duties, assessments or other
governmental charges been imposed;
(ii) if at any time the Debentures are to be held
by a securities depositary, the Company may at such time
establish the matters contemplated in clause (q) in the
second paragraph of Section 301 of the Indenture in an
Officer's Certificate supplemental to this Officer's
Certificate; and
(iii) if the Debentures are distributed to the
holders of the Trust Securities upon termination of the
Washington Water Power Trust in accordance with the
provisions of the Declaration, the Company will use all
reasonable efforts to cause the Debentures to be listed on
the New York Stock Exchange or on such other securities
exchange as the Preferred Securities shall be listed.
(iv) if the Company shall make any deposit of
money and/or Government Obligations with respect to any
Debentures, or any portion of the principal amount thereof,
as contemplated by Section 601 of the Indenture, the Company
shall not deliver an Officer's Certificate described in
clause (z) in the first paragraph of said Section 601 unless
the Company shall also deliver to the Trustee, together with
such Officer's Certificate, either:
(A) an instrument wherein the Company,
notwithstanding the satisfaction and discharge of its
indebtedness in respect of the Debentures, shall assume
the obligation (which shall be absolute and
unconditional) to irrevocably deposit with the Trustee
or Paying Agent such additional sums of money, if any,
or additional Government Obligations (meeting the
requirements of Section 601), if any, or any
combination thereof, at such time or times, as shall be
necessary, together with the money and/or Government
Obligations theretofore so deposited, to pay when due
the principal of and premium, if any, and interest due
and to become due on such Debentures or portions
thereof, all in accordance with and subject to the
provisions of said Section 601; provided, however, that
such instrument may state that the obligation of the
Company to make additional deposits as aforesaid shall
be subject to the delivery to the Company by the
Trustee of a notice asserting the deficiency
accompanied by an opinion of an independent public
accountant of nationally recognized standing, selected
by the Trustee, showing the calculation thereof; or
(B) an Opinion of Counsel to the effect that the
Holders of such Debentures, or portions of the
principal amount thereof, will not recognize income,
gain or loss for United States federal income tax
purposes as a result of the satisfaction and discharge
of the Company's indebtedness in respect thereof and
will be subject to United States federal income tax on
the same amounts, at the same times and in the same
manner as if such satisfaction and discharge had not
been effected.
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this day of , 199 .
----- -------------- -
------------------------------
FORM OF DEBENTURE
(See legend at the end of this Security for
restrictions on transfer and change of form)
THE WASHINGTON WATER POWER COMPANY
% Junior Subordinated Deferrable Interest Debentures, Series A,
- -- due 20__
Original Interest Accrual Date: Initial Redemption Date:
Stated Maturity: Redemption Price:
Interest Rate:
Interest Payment Dates:
Regular Record Dates:
OID: Yes No
-- --
Total Amount of OID (%):
Yield to Maturity (%):
Initial Accrual
Period OID (%):
(Constant Yield Method)
This Security is not a Discount Security
within the meaning of the within-mentioned Indenture.
----------------------------------
Principal Amount Registered No.
$
THE WASHINGTON WATER POWER COMPANY, a corporation duly
organized and existing under the laws of the State of Washington
(herein called the "Company," which term includes any successor
corporation under the Indenture referred to below), for value
received, hereby promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Stated Maturity specified above, and to pay interest
thereon from the Original Interest Accrual Date specified above
or from the day next succeeding the most recent Interest Payment
Date through which interest has been paid or duly provided for,
quarterly in arrears on the Interest Payment Dates specified
above in each year, commencing with the Interest Payment Date
next succeeding the Original Interest Accrual Date specified
above, and at Maturity, at the Interest Rate per annum specified
above, until the principal hereof is paid or duly provided for.
The interest so payable, and paid or duly provided for, on any
Interest Payment Date shall, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date specified above (whether or not a
Business Day) next preceding such Interest Payment Date.
Notwithstanding the foregoing, interest payable at Maturity shall
be paid to the Person to whom principal shall be paid. Except as
otherwise provided in said Indenture, any such interest not so
paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
a Special Record Date for the payment of such Unpaid Interest to
be fixed by the Trustee, notice of which shall be given to
Holders of Securities of this series not less than 15 days prior
to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
Interest that is in arrears for more than one quarter shall
bear additional interest on the amount thereof, to the extent
permitted by law, at the rate of % per annum thereof,
--
compounded quarterly.
So long as no Event of Default shall have occurred and be
continuing, the Company shall have the right, at any time and
from time to time, to extend the interest payment period with
respect to the Securities of this Series to a period not
exceeding 20 consecutive quarters from the last Interest Payment
Date to which interest was paid in full (an "Extension Period")
during which period interest will be compounded quarterly. Prior
to the termination of the Extension Period, the Company may, and
at the end of the Extension Period the Company shall, pay all
interest accrued on this Security (together with interest thereon
at the rate of % per annum to the extent permitted by
--
applicable law). Upon such payment in full, such Extension
Period shall terminate. Prior to the termination of any such
Extension Period, the Company may further extend the interest
payment period; provided, however, that such Extension Period,
together with all such previous and further extensions thereof,
shall not exceed 20 consecutive quarters or extend beyond the
Stated Maturity of this Security. Upon termination of any such
Extension Period and upon the payment of all accrued interest
then due, the Company may elect to begin a new Extension Period,
subject to the above requirements. No interest shall be due and
payable during an Extension Period, except at the end thereof.
Payment of the principal of and premium, if any, on this
Security and interest hereon at Maturity shall be made upon
presentation of this Security at the corporate trust office of
Wilmington Trust Company in Wilmington, Delaware or at such other
office or agency as may be designated for such purpose by the
Company from time to time. Payment of interest on this Security
(other than interest at Maturity) shall be made by check mailed
to the address of the Person entitled thereto as such address
shall appear in the Security Register, except that if such Person
shall be a Washington Water Power Trust (as defined in the
Indenture referred to below) or securities depositary, such
payment may be made by such other means in lieu of check, as
shall be agreed upon by the Company, the Trustee and such Person.
Payment of the principal of and premium, if any, and interest on
this Security, as aforesaid, shall be made in such coin or
currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and
private debts.
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and issuable in one or more series under and equally
secured by an Indenture, dated as of 1, 199 (such
----------- -
Indenture as originally executed and delivered and as
supplemented or amended from time to time thereafter, together
with any constituent instruments establishing the terms of
particular Securities, being herein called the "Indenture"),
between the Company and Wilmington Trust Company, trustee (herein
called the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description
of the respective rights, limitations of rights, duties and
immunities of the Company, the Trustee and the Holders of the
Securities thereunder and of the terms and conditions upon which
the Securities are, and are to be, authenticated and delivered
and secured. Capitalized terms used herein and not defined
herein have the meanings specified in the Indenture. The
acceptance of this Security shall be deemed to constitute the
consent and agreement by the Holder hereof to all of the terms
and provisions of the Indenture. This Security is one of the
series designated above.
If any Interest Payment Date, any Redemption Date or the
Stated Maturity shall not be a Business Day (as hereinafter
defined), payment of the amounts due on this Security on such
date may be made on the next succeeding Business Day, except
that, in the case of an Interest Payment Date, if such Business
Day is in the next succeeding calendar year, such payment shall
be made on the next preceding Business Day; and, if such payment
is made or duly provided for on such next succeeding Business
Day, no interest shall accrue on such amounts for the period from
and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to such Business Day; and, if such
payment of interest is made or duly provided for on such next
preceding Business Day, the amount of such payment shall not
reflect any reduction in the amount of interest accrued.
The Securities of this series are subject to redemption at
any time on or after the Initial Redemption Date specified above,
in whole or in part, at the election of the Company, at a
redemption price equal to 100% of the principal amount thereof
plus accrued interest, if any, (including Additional Interest (as
defined herein) if any), to the date fixed for redemption;
provided, however, that the Securities of this series shall not
be so redeemable in part unless all interest (including any
Additional Interest) accrued through the most recent quarterly
interest period ended on or prior to the date fixed for
redemption shall have been paid.
The Securities of this series are subject to redemption, in
whole but not in part, at the election of the Company, on any
date within 90 days of the occurrence, and during the
continuation, of a Tax Event (as defined herein) at a redemption
price equal to 100% of the principal amount thereof plus accrued
interest, if any (including Additional Interest, if any), to the
date fixed for redemption.
"Tax Event" means the receipt by the Company of an opinion
of counsel to the effect that, as a result of (a) any amendment
to, clarification of or change (including any announced
prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, (b) any judicial
decision, official administrative pronouncement, ruling,
regulatory procedure, notice or announcement, including any
notice or announcement of intent to adopt such procedures or
regulations (an "Administrative Action") or (c) any amendment to,
clarification of, or change in the official position or the
interpretation of such Administrative Action or judicial decision
that differs from the theretofore generally accepted position, in
each case, by any legislative body, court, governmental authority
or regulatory body, irrespective of the manner in which such
amendment, clarification or change is made known, which
amendment, clarification, or change is effective or such
pronouncement or decision is announced, in each case, on or
after, the date of the original issuance of the Securities of
this series (including the enactment of any legislation or the
publication of any judicial decision or regulatory determination
on or after such date), there is more than an insubstantial risk
that (i) the Washington Water Power Trust, if any, which is the
Holder of this Security is or will be within 90 days of the date
of such amendment, clarification or change, subject to United
States federal income tax with respect to interest accrued or
received on the Securities of this series, (ii) such Washington
Water Power Trust is, or will be within 90 days of the date of
such amendment, clarification or change, subject to more than a
de minimis amount of taxes, duties or other governmental charges
or (iii) interest payable on the Securities of this series is
not, or within 90 days of the date of such amendment,
clarification or change will not be, deductible, in whole or in
part, by the Company for United States federal income tax
purposes.
Notice of redemption shall be given by mail to Holders of
Securities, not less than 30 days nor more than 60 days prior to
the date fixed for redemption, all as provided in the Indenture.
As provided in the Indenture, notice of redemption at the
election of the Company as aforesaid may state that such
redemption shall be conditional upon the receipt by the Trustee
of money sufficient to pay the principal of and premium, if any,
and interest, if any, on this Security on or prior to the date
fixed for such redemption; a notice of redemption so conditioned
shall be of no force or effect if such money is not so received
and, in such event, the Company shall not be required to redeem
this Security.
In the event of redemption of this Security in part only, a
new Security or Securities of this series, of like tenor,
representing the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
If, at any time while the Institutional Trustee is the
Holder of the Securities of this series, the Washington Water
Power Trust or the Institutional Trustee is required to pay any
taxes, duties, assessments or governmental charges of whatever
nature (other than withholding taxes) imposed by the United
States, or any other taxing authority, then, in any such case,
the Company will pay as additional interest ("Additional
Interest") on the Securities of this series such additional
amounts as shall be required so that the net amounts received and
retained by the Washington Water Power Trust and the
Institutional Trustee after paying such taxes, duties,
assessments or other governmental charges will be equal to the
amounts such trust and trustee would have received had no such
taxes, duties, assessments or other governmental charges been
imposed.
If an Event of Default with respect to the Securities of
this series shall occur and be continuing, the principal of this
Security may be declared due and payable in the manner and with
the effect provided in the Indenture.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinated and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture permits, with certain exceptions as therein
provided, the Trustee to enter into one or more supplemental
indentures for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of,
the Indenture with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all
series then Outstanding under the Indenture, considered as one
class; provided, however, that if there shall be Securities of
more than one series Outstanding under the Indenture and if a
proposed supplemental indenture shall directly affect the rights
of the Holders of Securities of one or more, but less than all,
of such series, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the
Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such Tranches, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected,
considered as one class, shall be required; and provided,
further, that the Indenture permits the Trustee to enter into one
or more supplemental indentures for limited purposes without the
consent of any Holders of Securities. The Indenture also
contains provisions permitting the Holders of a majority in
principal amount of the Securities then Outstanding, on behalf of
the Holders of all Securities, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange therefor or in
lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in the Indenture and subject to certain
limitations therein set forth, this Security or any portion of
the principal amount hereof will be deemed to have been paid for
all purposes of the Indenture and to be no longer Outstanding
thereunder, and, at the election of the Company, the Company's
entire indebtedness in respect thereof will be satisfied and
discharged, if there has been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company), in trust,
money in an amount which will be sufficient and/or Eligible
Obligations, the principal of and interest on which when due,
without regard to any reinvestment thereof, will provide moneys
which, together with moneys so deposited, will be sufficient to
pay when due the principal of and interest on this Security when
due.
The Indenture contains terms, provisions and conditions
relating to the consolidation or merger of the Company with or
into, and the conveyance or other transfer, or lease, of assets
to, another Person, to the assumption by such other Person, in
certain circumstances, of all of the obligations of the Company
under the Indenture and on the Securities and to the release and
discharge of the Company, in certain circumstances, from such
obligation.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office of Wilmington
Trust Company in Wilmington, Delaware or such other office or
agency as may be designated by the Company from time to time,
duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new
Securities of this series of authorized denominations and of like
tenor and aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only as
registered Securities, without coupons, and in denominations of
$25 and integral multiples thereof. As provided in the Indenture
and subject to certain limitations therein set forth, Securities
of this series are exchangeable for a like aggregate principal
amount of Securities of the same series and Tranche, of any
authorized denominations, as requested by the Holder surrendering
the same, and of like tenor upon surrender of the Security or
Securities to be exchanged at the office of Wilmington Trust
Company in Wilmington, Delaware or such other office or agency as
may be designated by the Company from time to time.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Security is registered as the absolute owner hereof for all
purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State New York.
As used herein, "Business Day" means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in the City of Wilmington,
Delaware and other city in which is located any office or agency
maintained for the payment of principal, premium, if any, or
interest on this Security and in The City of New York, are
authorized or required by law, regulation or executive order to
remain closed. All other terms used in this Security which are
defined in the Indenture shall have the meanings assigned to them
in the Indenture.
As provided in the Indenture, no recourse shall be had for
the payment of the principal of or premium, if any, or interest
on any Securities, or any part thereof, or for any claim based
thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or
agreement under the Indenture, against, and no personal liability
whatsoever shall attach to, or be incurred by, any incorporator,
shareholder, officer or director, as such, past, present or
future of the Company or of any predecessor or successor
corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any
constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that the Indenture and all the
Securities are solely corporate obligations and that any such
personal liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the execution
of the Indenture and the issuance of the Securities.
Unless the certificate of authentication hereon has been
executed by the Trustee or an Authenticating Agent by manual
signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed.
THE WASHINGTON WATER POWER COMPANY
By:
-------------------------------
[Title]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:
------------------
OR
- --------------------------- --------------------------------
, ,
- --------------------------- -----------------------------
AS TRUSTEE AS TRUSTEE
By: BY:[ ],
--------------------------
Authorized Officer AS AUTHENTICATING AGENT
By:
--------------------------------
Authorized Officer
This Security shall not be transferable, nor shall be any
purported transfer be registered, except (a) to a nominee of
Wilmington Trust Company, as Institutional Trustee, to such
Institutional Trustee by such nominee, by such Institutional
Trustee to another nominee, by any such nominee to a successor
nominee or by such Institutional Trustee or any nominee thereof
to a successor Institutional Trustee or a nominee thereof or (B)
to the holders of Trust Securities in the event of the
termination of the Washington Water Power Trust in accordance
with the provisions of the Declaration.
------------------
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
- -----------------------------------------------------------------
[please insert social security or other identifying number of
assignee]
- -----------------------------------------------------------------
[please print or typewrite name and address of assignee]
- -----------------------------------------------------------------
the within Security of THE WASHINGTON WATER POWER COMPANY and
does hereby irrevocably constitute and appoint
, Attorney, to transfer
- -----------------------------------------
said Security on the books of the within-mentioned Company, with
full power of substitution in the premises.
Dated:
-------------
---------------------------------------------------
Notice: The signature to this assignment must correspond with
the name as written upon by face of the Security in every
particular without alteration or enlargement or any change
whatsoever.
EXHIBIT 4(a)-14
===========================================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
Washington Water Power Capital I
Dated as of ______, 199_
===========================================================
[PAGE BREAK]
THE WASHINGTON WATER POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
PREFERRED SECURITIES GUARANTEE, DATED AS OF ________ 1, 199_
PREFERRED SECURITIES
TRUST INDENTURE ACT SECTION GUARANTEE SECTIONS
310(a)(1) . . . . . . . . . . . . . . . . . . . 4.1(a)
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)
(a)(3) . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . 2.8, 4.1(c), 4.1(d)
(c) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . . . . . . . . . . . 2.2(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . . . . . 2.2(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313 . . . . . . . . . . . . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . . . . . . . . . . . . . 2.4
(b) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
(d) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . 1.1(Definition of Officer's Certificate
315(a) . . . . . . . . . . . . . . . . . . . . . 3.1(c)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(e)
316(a)(1) . . . . . . . . . . . . . . . . . 2.6, 5.4(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4(b)
(c) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
317 . . . . . . . . . . . . . . . . . . . . . . 3.1(f)
318 . . . . . . . . . . . . . . . . . . . . . . . . 2.1
_____________________________
* This Reconciliation and Tie does not constitute part of the
Preferred Securities Guarantee and shall not affect the
interpretation of any of its terms or provisions.
[PAGE BREAK]
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . 5
SECTION 2.2 Lists of Holders of Securities . . . . . . 5
SECTION 2.3 Reports by the Preferred Guarantee
Trustee . . . . . . . . . . . . . . . . . . 5
SECTION 2.4 Periodic Reports to Preferred Guarantee
Trustee . . . . . . . . . . . . . . . . 6
SECTION 2.5 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . 6
SECTION 2.6 Events of Default; Waiver . . . . . . . . . 6
SECTION 2.7 Event of Default; Notice . . . . . . . . . 6
SECTION 2.8 Conflicting Interests . . . . . . . . . . . 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred
Guarantee Trustee . . . . . . . . . . . . . 7
SECTION 3.2 Certain Rights of Preferred Guarantee
Trustee . . . . . . . . . . . . . . . . . . 9
SECTION 3.3 Not Responsible for Recitals or Issuance
of Guarantee Securities . . . . . . . . . 10
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee;
Eligibility . . . . . . . . . . . . . . . 11
SECTION 4.2 Appointment, Removal and Resignation of
Preferred Guarantee Trustee . . . . . . . 12
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . 13
SECTION 5.2 Waiver of Notice and Demand . . . . . . . 13
SECTION 5.3 Obligations Not Affected . . . . . . . . 13
SECTION 5.4 Rights of Holders . . . . . . . . . . . . 14
SECTION 5.5 Guarantee of Payment . . . . . . . . . . 14
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . 14
SECTION 5.7 Independent Obligations . . . . . . . . . 15
ARTICLE VI
SUBORDINATION
SECTION 6.1 Ranking . . . . . . . . . . . . . . . . . 15
SECTION 6.2 Effect of Subordination Provisions;
Termination . . . . . . . . . . . . . . . 15
ARTICLE VII
TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . 16
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation . . . . . . . . . . . . . . . 16
SECTION 8.2 Indemnification . . . . . . . . . . . . . 17
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Assignment . . . . . . . . . . . . . . . 17
SECTION 9.2 Successors and Assigns . . . . . . . . . 17
SECTION 9.3 Amendments . . . . . . . . . . . . . . . 17
SECTION 9.4 Notices . . . . . . . . . . . . . . . . . 17
SECTION 9.5 Benefit . . . . . . . . . . . . . . . . . 18
SECTION 9.6 Governing Law . . . . . . . . . . . . . . 18
SECTION 9.7 Counterparts . . . . . . . . . . . . . . 19
[PAGE BREAK]
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities
Guarantee"), dated as of ______, 199_, is executed and delivered
by The Washington Water Power Company, a Washington corporation
(the "Guarantor"), and Wilmington Trust Company, a Delaware
banking corporation, as trustee (the "Preferred Guarantee
Trustee"), for the benefit of the Holders (as defined herein)
from time to time of the Preferred Securities (as defined herein)
of Washington Water Power Capital I, a Delaware statutory
business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated
Declaration of Trust (the "Declaration"), dated as of ______,
199_, among the trustees of the Issuer named therein, the
Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing on the date hereof __________ preferred
securities, having an aggregate liquidation amount of
$___________, designated the ____% Trust Originated Preferred
Securities, Series A (the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires irrevocably and
unconditionally to agree, to the extent set forth in this
Preferred Securities Guarantee, to pay to the Holders of the
Preferred Securities the Guarantee Payments (as defined herein);
and
WHEREAS, the Guarantor is also executing and delivering
a guarantee agreement (the "Common Securities Guarantee") in
substantially identical terms to this Preferred Securities
Guarantee for the benefit of the holders of the Common Securities
(as defined herein), except that if an Event of Default (as
defined in the Indenture), has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee
Payments (as defined in the Common Securities Guarantee) under
the Common Securities Guarantee are subordinated to the rights of
Holders of Preferred Securities to receive Guarantee Payments
under this Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by
each Holder of Preferred Securities, which purchase the Guarantor
hereby agrees shall benefit the Guarantor, the Guarantor executes
and delivers this Preferred Securities Guarantee for the benefit
of the Holders.
[PAGE BREAK]
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS AND INTERPRETATION
In this Preferred Securities Guarantee, unless the
context otherwise requires:
(a) Capitalized terms used in this Preferred
Securities Guarantee but not defined in the
preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) terms defined in the Declaration as at the date of
execution of this Preferred Securities Guarantee
have the same meaning when used in this Preferred
Securities Guarantee unless otherwise defined in
this Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred
Securities Guarantee has the same meaning
throughout;
(d) all references to "the Preferred Securities
Guarantee" or "this Preferred Securities
Guarantee" are to this Preferred Securities
Guarantee as modified, supplemented or amended
from time to time;
(e) all references in this Preferred Securities
Guarantee to Articles and Sections are to Articles
and Sections of this Preferred Securities
Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the
same meaning when used in this Preferred
Securities Guarantee, unless otherwise defined in
this Preferred Securities Guarantee or unless the
context otherwise requires; and
(g) a reference to the singular includes the plural
and vice versa.
"AFFILIATE" has the same meaning as given to that term
in Rule 405 of the Securities Act of 1933, as amended, or any
successor rule thereunder.
"BUSINESS DAY" means any day other than a day on which
banking institutions in the City of New York, New York are
authorized or required by any applicable law to close.
"COMMON SECURITIES" means the securities representing
common undivided beneficial interests in the assets of the
Issuer.
"CORPORATE TRUST OFFICE" means the office of the
Preferred Guarantee Trustee at which the corporate trust business
of the Preferred Guarantee Trustee shall, at any particular time,
be principally administered, which office at the date of
execution of this Agreement is located at Rodney Square North,
1100 North Market Street, Wilmington, Delaware 19890.
"COVERED PERSON" means any Holder or beneficial owner
of Preferred Securities.
"DEBENTURES" means the series of junior subordinated
debt securities of the Guarantor designated the ____% Junior
Subordinated Deferrable Interest Debentures, Series A, due 20__
held by the Institutional Trustee of the Issuer.
"EVENT OF DEFAULT" means a default by the Guarantor on
any of its payment or other obligations under this Preferred
Securities Guarantee.
"GUARANTEE PAYMENTS" means the following payments or
distributions, without duplication, with respect to the Preferred
Securities, to the extent not paid or made by the Issuer: (i) any
accrued and unpaid Distributions that are required to be paid on
such Preferred Securities to the extent the Issuer shall have
funds available therefor, (ii) the redemption price, including
all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price") to the extent the Issuer shall have
funds available therefor, with respect to any Preferred
Securities called for redemption by the Issuer, and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination
of the Issuer (other than in connection with the distribution of
Debentures to the Holders in exchange for Preferred Securities as
provided in the Declaration), the lesser of (a) the aggregate of
the liquidation amount and all accrued and unpaid Distributions
on the Preferred Securities to the date of payment and (b) the
amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution").
"HOLDER" means any holder, as registered on the books
and records of the Issuer of any Preferred Securities; provided,
however, that in determining whether the holders of the requisite
percentage of Preferred Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include
the Guarantor or any Affiliate of the Guarantor.
"INDEMNIFIED PERSON" means the Preferred Guarantee
Trustee, any Affiliate of the Preferred Guarantee Trustee, or any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Preferred
Guarantee Trustee.
"INDENTURE" means the Indenture dated as of ______ 1,
199_, between the Guarantor (the "Debenture Issuer") and
Wilmington Trust Company, as trustee, as supplemented, pursuant
to which certain subordinated debt securities of the Debenture
Issuer are to be issued to the Property Trustee of the Issuer.
"MAJORITY IN LIQUIDATION AMOUNT OF THE SECURITIES"
means, except as provided by the Trust Indenture Act, a vote by
Holder(s) of Preferred Securities, voting separately as a class,
of more than 50% of the liquidation amount (including the stated
amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Preferred
Securities.
"OFFICER'S CERTIFICATE" means, with respect to any
Person, a certificate signed by an Authorized Officer of such
Person. Any Officer's Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Preferred Securities Guarantee shall include:
(a) a statement that the officer signing the Officer's
Certificate has read the covenant or condition and the
definition relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by the officer in
rendering the Officer's Certificate;
(c) a statement that such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer 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 such
officer, such condition or covenant has been complied with.
"PERSON" means a legal person, including any
individual, corporation, estate, partnership, joint venture,
association, joint stock company, limited liability company,
trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"PREFERRED GUARANTEE TRUSTEE" means Wilmington Trust
Company, a Delaware banking corporation, until a Successor
Preferred Guarantee Trustee has been appointed and has accepted
such appointment pursuant to the terms of this Preferred
Securities Guarantee and thereafter means each such Successor
Preferred Guarantee Trustee.
"RESPONSIBLE OFFICER" means, with respect to the
Preferred Guarantee Trustee, any officer within the Corporate
Trust Office of the Preferred Guarantee Trustee, including any
vice president, any assistant vice president, any assistant
secretary, the treasurer, any assistant treasurer or other
officer of the Corporate Trust Office of the Preferred Guarantee
Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"SUCCESSOR PREFERRED GUARANTEE TRUSTEE" means a
successor Preferred Guarantee Trustee possessing the
qualifications to act as Preferred Guarantee Trustee under
Section 4.1.
"TRUST INDENTURE ACT" means the Trust Indenture Act of
1939, as amended.
"TRUST SECURITIES" means the Common Securities and the
Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION
(a) This Preferred Securities Guarantee is subject to
the provisions of the Trust Indenture Act that are required to be
part of this Preferred Securities Guarantee and shall, to the
extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this
Preferred Securities Guarantee limits, qualifies or conflicts
with the duties imposed by Section 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES
(a) The Guarantor shall provide the Preferred
Guarantee Trustee with a list, in such form as the Preferred
Guarantee Trustee may reasonably require, of the names and
addresses of the Holders of the Preferred Securities ("List of
Holders") as of such date, (i) within 1 Business Day after
January 1 and June 30 of each year, and (ii) at any other time,
within 30 days of receipt by the Guarantor of a written request
for a List of Holders as of a date no more than 14 days before
such List of Holders is given to the Preferred Guarantee Trustee;
provided, however, that the Guarantor shall not be obligated to
provide such List of Holders at any time the List of Holders does
not differ from the most recent List of Holders given to the
Preferred Guarantee Trustee by the Guarantor. The Preferred
Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with
its obligations under Sections 311(a), 311(b) and Section 312(b)
of the Trust Indenture Act.
SECTION 2.3 REPORTS BY THE PREFERRED GUARANTEE TRUSTEE
Within 60 days after May 15 of each year, the Preferred
Guarantee Trustee shall provide to the Holders of the Preferred
Securities such reports as are required by Section 313 of the
Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Preferred
Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS TO PREFERRED GUARANTEE TRUSTEE
The Guarantor shall provide to the Preferred Guarantee
Trustee such documents, reports and information as required by
Section 314 (if any) and the compliance certificate required by
Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture
Act.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT
The Guarantor shall provide to the Preferred Guarantee
Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Preferred Securities
Guarantee that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1)
may be given in the form of an Officer's Certificate.
SECTION 2.6 EVENTS OF DEFAULT; WAIVER
The Holders of a Majority in liquidation amount of
Preferred Securities may, by vote, on behalf of the Holders of
all of the Preferred Securities, waive any past Event of Default
and its consequences. Upon such waiver, any such Event of Default
shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend
to any subsequent or other default or Event of Default or impair
any right consequent thereon.
SECTION 2.7 EVENT OF DEFAULT; NOTICE
(a) The Preferred Guarantee Trustee shall, within 90
days after the occurrence of an Event of Default, transmit by
mail, first class postage prepaid, to the Holders of the
Preferred Securities, notices of all Events of Default actually
known to a Responsible Officer of the Preferred Guarantee
Trustee, unless such defaults have been cured before the giving
of such notice; provided, however, that the Preferred Guarantee
Trustee shall be protected in withholding such notice if and so
long as a Responsible Officer of the Preferred Guarantee Trustee
in good faith determines that the withholding of such notice is
in the interests of the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be
deemed to have knowledge of any Event of Default unless the
Preferred Guarantee Trustee shall have received written notice,
or a Responsible Officer of the Preferred Guarantee Trustee
charged with the administration of the Declaration shall have
obtained actual knowledge.
SECTION 2.8 CONFLICTING INTERESTS
The Declaration shall be deemed to be specifically
described in this Preferred Securities Guarantee for the purposes
of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF THE PREFERRED GUARANTEE
TRUSTEE
(a) This Preferred Securities Guarantee shall be held
by the Preferred Guarantee Trustee for the benefit of the Holders
of the Preferred Securities, and the Preferred Guarantee Trustee
shall not transfer this Preferred Securities Guarantee to any
Person except a Holder of Preferred Securities exercising his or
her rights pursuant to Section 5.4(b) or to a Successor Preferred
Guarantee Trustee on acceptance by such Successor Preferred
Guarantee Trustee of its appointment to act as Successor
Preferred Guarantee Trustee. The right, title and interest of the
Preferred Guarantee Trustee shall automatically vest in any
Successor Preferred Guarantee Trustee, and such vesting and
cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the
appointment of such Successor Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a
Responsible Officer of the Preferred Guarantee Trustee has
occurred and is continuing, the Preferred Guarantee Trustee shall
enforce this Preferred Securities Guarantee for the benefit of
the Holders of the Preferred Securities.
(c) Except during the continuance of an Event of
Default,
(i) the Preferred Guarantee Trustee undertakes to
perform only such duties as are specifically set forth in
this Preferred Securities Guarantee, and no implied
covenants shall be read into this Preferred Securities
Guarantee against the Preferred Guarantee Trustee; and
(ii) in the absence of bad faith on its part, the
Preferred Guarantee Trustee may, with respect to Preferred
Securities of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Preferred Guarantee Trustee and conforming
to the requirements of this Preferred Securities Guarantee;
but in the case of any such certificates or opinions which
by any provisions hereof are specifically required to be
furnished to the Preferred Guarantee Trustee, the Preferred
Guarantee Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements
of this Preferred Securities Guarantee.
(d) In case an Event of Default shall have occurred
and be continuing, the Preferred Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Preferred
Securities Guarantee, and use the same degree of care and skill
in its exercise thereof, as a prudent person would exercise or
use under the circumstances in the conduct of his or her own
affairs.
(e) No provision of this Preferred Securities
Guarantee shall be construed to relieve the Preferred Guarantee
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 (c) of this Section;
(ii) the Preferred Guarantee Trustee shall not be
liable for any error of judgment made in good faith by a
Responsible Officer of the Preferred Guarantee Trustee,
unless it shall be proved that the Preferred Guarantee
Trustee was negligent in ascertaining the pertinent facts
upon which such judgment was made;
(iii) the Preferred Guarantee 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 not less than a Majority in liquidation
amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy
available to the Preferred Guarantee Trustee, or exercising
any trust or power conferred upon the Preferred Guarantee
Trustee under this Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities
Guarantee shall require the Preferred Guarantee Trustee to
expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable grounds
for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Preferred Securities Guarantee or indemnity, reasonably
satisfactory to the Preferred Guarantee Trustee, against
such risk or liability is not reasonably assured to it.
(f) The Preferred Guarantee Trustee shall be
authorized to undertake all actions set forth in Section
317(a) of the Trust Indenture Act.
SECTION 3.2 CERTAIN RIGHTS OF PREFERRED GUARANTEE TRUSTEE
(a) Subject to the provisions of Section 3.1 and to
the applicable provisions of the Trust Indenture Act:
(i) The Preferred Guarantee Trustee may conclusively
rely, and shall be fully 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.
(ii) Any request, direction or act of the Guarantor
contemplated by this Preferred Securities Guarantee shall be
sufficiently evidenced by an Officer's Certificate, or as
otherwise expressly provided herein.
(iii) Whenever, in the administration of this
Preferred Securities Guarantee the Preferred Guarantee
Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action
hereunder, the Preferred Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively
rely upon an Officer's Certificate.
(iv) The Preferred Guarantee Trustee may consult with
counsel of its selection, and the written advice or opinion
of such counsel with respect to legal matters 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 such advice or opinion; and
any such counsel may be counsel to the Guarantor or any of
its Affiliates and may include any of its employees.
(v) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Preferred Securities Guarantee at the request or
direction of any Holder pursuant to this Preferred
Securities Guarantee, unless such Holder shall have offered
to the Preferred Guarantee Trustee reasonable security or
indemnity against the costs, expenses and liabilities which
might be incurred by it in complying with such request or
direction.
(vi) The Preferred Guarantee 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 Preferred Guarantee
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit,
and, if the Preferred Guarantee Trustee shall determine to
make any such further inquiry or investigation, it shall
(subject to applicable legal requirements) be permitted to
examine, during usual business hours, the books, records and
premises of the Issuer or the Guarantor, personally or by
agent or attorney.
(vii) The Preferred Guarantee 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 Preferred Guarantee 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.
(viii) The Preferred Guarantee Trustee shall have no
duty to see to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any
rerecording, refiling or registration thereof.
(ix) Any action taken by the Preferred Guarantee
Trustee or its agents hereunder shall bind the Holders of
the Preferred Securities, and the signature of the Preferred
Guarantee Trustee or its agents alone shall be sufficient
and effective to perform any such action. No third party
shall be required to inquire as to the authority of the
Preferred Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this
Preferred Securities Guarantee, both of which shall be
conclusively evidenced by the Preferred Guarantee Trustee's
or its agent's taking such action.
(b) No provision of this Preferred Securities
Guarantee shall be deemed to impose any duty or obligation on the
Preferred Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal,
or in which the Preferred Guarantee Trustee shall be unqualified
or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or
obligation. No permissive or discretionary power or authority
available to the Preferred Guarantee Trustee shall be construed
to be a duty or obligation.
SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
GUARANTEE SECURITIES
The recitals contained in this Preferred Securities
Guarantee shall be taken as the statements of the Guarantor, and
the Preferred Guarantee Trustee does not assume any
responsibility for their correctness. The Preferred Guarantee
Trustee makes no representation as to the validity or sufficiency
of this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 PREFERRED GUARANTEE TRUSTEE; ELIGIBILITY
(a) There shall at all times be a Preferred Guarantee
Trustee which shall be:
(i) 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
(ii) if and to the extent permitted by the Commission
by rule, regulation or order upon application, a corporation
or other Person organized and doing business under the laws
of a foreign government, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least Fifty Million Dollars ($50,000,000)
or the Dollar equivalent of the applicable foreign currency
and subject to supervision or examination by authority of
such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination
applicable to United States institutional trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Preferred Guarantee Trustee
shall cease to be eligible to so act under Section 4.1(a), the
Preferred Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Preferred Guarantee
Trustee and Guarantor (as if it were the obligor referred to in
Section 310(b) of the Trust Indenture Act) shall in all respects
comply with the provisions of Section 310(b) of the Trust
Indenture Act.
(d) The Preferred Guarantee Trustee shall be deemed to
be specifically described in this Preferred Securities Guarantee
for purposes of clause (i) of the first provision contained in
Section 310(b) of the Trust Indenture Act.
SECTION 4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF PREFERRED
GUARANTEE TRUSTEE
(a) Subject to Section 4.2(b), the Preferred Guarantee
Trustee may be appointed or removed without cause at any time by
the Guarantor except during an Event of Default under the
Indenture.
(b) The Preferred Guarantee Trustee shall not be
removed in accordance with Section 4.2(a) until a Successor
Preferred Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor
Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to
office shall hold office until a Successor Preferred Guarantee
Trustee shall have been appointed or until his death, removal or
resignation. The Preferred Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an
instrument in writing signed by the Preferred Guarantee Trustee
and delivered to the Guarantor, which resignation shall not take
effect until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment by instrument in
writing executed by such Successor Preferred Guarantee Trustee
and delivered to the Guarantor and the resigning Preferred
Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall
have been appointed and accepted appointment as provided in this
Section 4.2 within 60 days after delivery of an instrument of
removal or resignation, the Preferred Guarantee Trustee resigning
or being removed, as applicable, may petition any court of
competent jurisdiction for appointment of a Successor Preferred
Guarantee Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper and prescribe, appoint
a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for
the acts or omissions to act of any Successor Preferred Guarantee
Trustee.
(f) Upon termination of this Preferred Securities
Guarantee or removal or resignation of the Preferred Guarantee
Trustee pursuant to this Section 4.2, the Guarantor shall pay to
the Preferred Guarantee Trustee all amounts accrued to the date
of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 GUARANTEE
The Guarantor irrevocably and unconditionally agrees to
pay in full to the Holders the Guarantee Payments (without
duplication of amounts theretofore paid by the Issuer), as and
when due, regardless of any defense, right of set-off or
counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders
or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.2 WAIVER OF NOTICE AND DEMAND
The Guarantor hereby waives notice of acceptance of
this Preferred Securities Guarantee and of any liability to which
it applies or may apply, presentment, demand for payment, any
right to require a proceeding first against the Issuer or any
other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption
and all other notices and demands.
SECTION 5.3 OBLIGATIONS NOT AFFECTED
The obligations, covenants, agreements and duties of
the Guarantor under this Preferred Securities Guarantee shall in
no way be affected or impaired by reason of the happening from
time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any
express or implied agreement, covenant, term or condition
relating to the Preferred Securities to be performed or observed
by the Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the Distributions, Redemption
Price, Liquidation Distribution or any other sums payable under
the terms of the Preferred Securities or the extension of time
for the performance of any other obligation under, arising out
of, or in connection with, the Preferred Securities (other than
an extension of time for payment of Distributions, Redemption
Price, Liquidation Distribution or other sum payable that results
from the extension of any interest payment period on the
Debentures);
(c) any failure, omission, delay or lack of diligence
on the part of the Holders to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Holders
pursuant to the terms of the Preferred Securities, or any action
on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of
the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of
a guarantor, it being the intent of this Section 5.3 that the
obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give
notice to, or obtain consent of, the Guarantor with respect to
the happening of any of the foregoing.
SECTION 5.4 RIGHTS OF HOLDERS
(a) The Holders of a Majority in liquidation amount of
the Preferred Securities have the right to direct the time,
method and place of conducting of any proceeding for any remedy
available to the Preferred Guarantee Trustee in respect of this
Preferred Securities Guarantee or exercising any trust or power
conferred upon the Preferred Guarantee Trustee under this
Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to
enforce such Preferred Securities Guarantee, any Holder of
Preferred Securities may institute a legal proceeding directly
against the Guarantor to enforce the Preferred Guarantee
Trustee's rights under this Preferred Securities Guarantee,
without first instituting a legal proceeding against the Issuer,
the Preferred Guarantee Trustee or any other person or entity.
The Guarantor waives any right or remedy to require that any
action be brought first against the Issuer or any other person or
entity before proceeding directly against the Guarantor.
SECTION 5.5 GUARANTEE OF PAYMENT
This Preferred Securities Guarantee creates a guarantee
of payment and not of collection.
SECTION 5.6 SUBROGATION
The Guarantor shall be subrogated to all (if any)
rights of the Holders of Preferred Securities against the Issuer
in respect of any amounts paid to such Holders by the Guarantor
under this Preferred Securities Guarantee; provided, however,
that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise
any right that it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a
result of payment under this Preferred Securities Guarantee, if,
at the time of any such payment, any amounts are due and unpaid
under this Preferred Securities Guarantee. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the
Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
SECTION 5.7 INDEPENDENT OBLIGATIONS
The Guarantor acknowledges that its obligations
hereunder are independent of the obligations of the Issuer with
respect to the Preferred Securities, and that the Guarantor shall
be liable as principal and as debtor hereunder to make Guarantee
Payments pursuant to the terms of this Preferred Securities
Guarantee notwithstanding the occurrence of any event referred to
in subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.1 RANKING
This Preferred Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other
liabilities of the Guarantor and (ii) pari passu with the Common
Securities Guarantee and any other guarantee now or hereafter
entered into by the Guarantor with respect to any preferred
securities issued by any trust, partnership or other entity which
is a financing vehicle of the Guarantor, except that, where an
Event of Default (as defined in the Indenture) occurs and is
continuing, the rights of holders of the Common Securities and
the rights of the Guarantor or any Affiliate of the Guarantor to
payment in respect of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the
rights to payment of Holders of Preferred Securities.
SECTION 6.2 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 Preferred Securities
Guarantee shall be subject to the provisions of this Article Six,
so far as the same may be applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of Section 6.1(i) shall be of no further
effect with respect to all or a portion of all other liabilities
of the Guarantor, and this Preferred Securities Guarantee shall
no longer be subordinated in right of payment to such other
liabilities of the Guarantor, to the extent that the Guarantor
shall have delivered to the Preferred Guarantee Trustee a notice
to such effect specifying therein such other liabilities to which
this Preferred Securities Guarantee shall no longer be
subordinated and shall have taken correlative action with respect
to the Common Securities Guarantee.
ARTICLE VII
TERMINATION
SECTION 7.1 TERMINATION
This Preferred Securities Guarantee shall terminate
upon (i) full payment of the Redemption Price of all Preferred
Securities, (ii) upon the distribution of the Debentures to the
Holders of all of the Preferred Securities or (iii) upon full
payment of the amounts payable in accordance with the Declaration
upon liquidation of the Issuer. Notwithstanding the foregoing,
this Preferred Securities Guarantee will continue to be effective
or will be reinstated, as the case may be, if at any time any
Holder of Preferred Securities must restore payment of any sums
paid under the Preferred Securities or under this Preferred
Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 EXCULPATION
(a) No Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the Guarantor or any
Covered Person for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified
Person in good faith in accordance with this Preferred Securities
Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on
such Indemnified Person by this Preferred Securities Guarantee or
by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Guarantor and upon
such information, opinions, reports or statements presented to
the Guarantor by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional
or expert competence and who has been selected with reasonable
care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
Distributions to Holders of Preferred Securities might properly
be paid.
SECTION 8.2 INDEMNIFICATION
The Guarantor agrees to indemnify each Indemnified
Person for, and to hold each Indemnified Person harmless against,
any and all loss, liability, damage, claim or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against,
or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligation to indemnify as set forth in this Section 8.2
shall survive the termination of this Preferred Securities
Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 ASSIGNMENT
The Guarantor may assign its obligations under this
Preferred Securities Guarantee and thereupon be released and
discharged from all obligations hereunder upon compliance with
the conditions set forth in Section 1005(a)(i)-(iv) of the
Indenture.
SECTION 9.2 SUCCESSORS AND ASSIGNS
All guarantees and agreements contained in this
Preferred Securities Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor
and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding.
SECTION 9.3 AMENDMENTS
Except with respect to any changes that do not
adversely affect the rights of Holders (in which case no consent
of Holders will be required), this Preferred Securities Guarantee
may only be amended with the prior approval of the Holders of at
least a Majority in liquidation amount (including the stated
amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all the
outstanding Preferred Securities. The provisions of Section 12.2
of the Declaration with respect to meetings of Holders of the
Securities apply to the giving of such approval.
SECTION 9.4 NOTICES
All notices provided for in this Preferred Securities
Guarantee shall be in writing, duly signed by the party giving
such notice, and shall be delivered, telecopied or mailed by
first class mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at
the Preferred Guarantee Trustee's mailing address set forth below
(or such other address as the Preferred Guarantee Trustee may
give notice of to the Holders of the Preferred Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telecopy: (302) 651-1576
(b) If given to the Guarantor, at the Guarantor's
mailing address set forth below (or such other address as the
Guarantor may give notice of to the Holders of the Preferred
Securities):
The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Telecopy: (509) 482-4879
(c) If given to any Holder of Preferred Securities, at
the address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 9.5 BENEFIT
This Preferred Securities Guarantee is solely for the
benefit of the Holders of the Preferred Securities and, subject
to Section 3.1(a), is not separately transferable from the
Preferred Securities.
SECTION 9.6 GOVERNING LAW
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
SECTION 9.7 COUNTERPARTS
This Preferred Securities Guarantee may contain more
than one counterpart of the signature page and this Preferred
Securities Guarantee may be executed by the affixing of the
signature of each of the parties hereto to one of such
counterpart signature pages. All of such counterpart signature
pages shall be read as though one, and they shall have the same
force and effect as though all of the signers had signed a single
signature page.
[PAGE BREAK]
THIS PREFERRED SECURITIES GUARANTEE is executed as of
the day and year first above written.
THE WASHINGTON WATER POWER
COMPANY, as Guarantor
By:________________________
Name: _____________
Title: _______________
WILMINGTON TRUST COMPANY, as
Preferred Guarantee Trustee
By:________________________
Name: _____________
Title: _________
EXHIBIT 4(a)-15
=========================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
Washington Water Power Capital II
Dated as of ______, 199_
=========================================
THE WASHINGTON WATER POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
PREFERRED SECURITIES GUARANTEE, DATED AS OF ________ 1, 199_*
----------------------------------------------------------------
PREFERRED SECURITIES
TRUST INDENTURE ACT SECTION GUARANTEE SECTION(S)
--------------------------- --------------------
310(a)(1) . . . . . . . . . . . . . . . 4.1(a)
(a)(2) . . . . . . . . . . . . . . . . . . . 4.1(a)
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 2.8, 4.1(c), 4.1(d)
(c) . . . . . . . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . . . . . . 2.2(b)
(b) . . . . . . . . . . . . . . . . . . . 2.2(b)
(c) . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . 2.2(a)
(b) . . . . . . . . . . . . . . . . . . . 2.2(b)
313 . . . . . . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . . . . . . 2.4
(b) . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . 2.5
(d) . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . 1.1 (Definition of
Officer's
Certificate
315(a) . . . . . . . . . . . . . . . . 3.1(c)
(b) . . . . . . . . . . . . . . . . . . . 2.7(a)
(c) . . . . . . . . . . . . . . . . . . . 3.1(d)
(d) . . . . . . . . . . . . . . . . . . . 3.1(e)
316(a)(1) . . . . . . . . . . . . . . . 2.6, 5.4(a)
(b) . . . . . . . . . . . . . . . . . . . 5.4(b)
(c) . . . . . . . . . . . . . . . . . . . Not Applicable
317 . . . . . . . . . . . . . . . . . . 3.1(f)
318 . . . . . . . . . . . . . . . . . . 2.1
_____________________________
* This Reconciliation and Tie does not constitute part of the Preferred
Securities Guarantee and shall not affect the interpretation of any of
its terms or provisions.
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation . . . . . . . . . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . 5
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . . . . 5
SECTION 2.3 Reports by the Preferred Guarantee Trustee . . . . . . . . 5
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee . . . . 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . . . 6
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . . . . . . . 6
SECTION 2.7 Event of Default; Notice . . . . . . . . . . . . . . . . . 6
SECTION 2.8 Conflicting Interests . . . . . . . . . . . . . . . . . . 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee . . . 7
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee . . . . . . 9
SECTION 3.3 Not Responsible for Recitals or Issuance of
Guarantee Securities . . . . . . . . . . . . . . . . . . 10
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility . . . . . . . . 11
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.2 Waiver of Notice and Demand . . . . . . . . . . . . . . 13
SECTION 5.3 Obligations Not Affected . . . . . . . . . . . . . . . . 13
SECTION 5.4 Rights of Holders . . . . . . . . . . . . . . . . . . . 14
SECTION 5.5 Guarantee of Payment . . . . . . . . . . . . . . . . . . 14
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.7 Independent Obligations . . . . . . . . . . . . . . . . 15
ARTICLE VI
SUBORDINATION
SECTION 6.1 Ranking . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.2 Effect of Subordination Provisions; Termination . . . . 15
ARTICLE VII
TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 8.2 Indemnification . . . . . . . . . . . . . . . . . . . . 17
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Assignment . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.2 Successors and Assigns . . . . . . . . . . . . . . . . . 17
SECTION 9.3 Amendments . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.5 Benefit . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.6 Governing Law . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . 19
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"),
dated as of ______, 199_, is executed and delivered by The Washington Water
Power Company, a Washington corporation (the "Guarantor"), and Wilmington
Trust Company, a Delaware banking corporation, as trustee (the "Preferred
Guarantee Trustee"), for the benefit of the Holders (as defined herein)
from time to time of the Preferred Securities (as defined herein) of
Washington Water Power Capital II, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of ______, 199_, among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the holders from time
to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing on the date hereof __________ preferred securities,
having an aggregate liquidation amount of $___________, designated the
____% Trust Originated Preferred Securities, Series B (the "Preferred
Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth in this Preferred Securities Guarantee, to pay to
the Holders of the Preferred Securities the Guarantee Payments (as defined
herein); and
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") in substantially
identical terms to this Preferred Securities Guarantee for the benefit of
the holders of the Common Securities (as defined herein), except that if an
Event of Default (as defined in the Indenture), has occurred and is
continuing, the rights of holders of the Common Securities to receive
Guarantee Payments (as defined in the Common Securities Guarantee) under
the Common Securities Guarantee are subordinated to the rights of Holders
of Preferred Securities to receive Guarantee Payments under this Preferred
Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder
of Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Preferred
Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
------------------------------
In this Preferred Securities Guarantee, unless the context
otherwise requires:
(a) Capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b) terms defined in the Declaration as at the date of execution
of this Preferred Securities Guarantee have the same meaning
when used in this Preferred Securities Guarantee unless
otherwise defined in this Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or
"this Preferred Securities Guarantee" are to this Preferred
Securities Guarantee as modified, supplemented or amended
from time to time;
(e) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this
Preferred Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same
meaning when used in this Preferred Securities Guarantee,
unless otherwise defined in this Preferred Securities
Guarantee or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
---------
405 of the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Business Day" means any day other than a day on which banking
------------
institutions in the City of New York, New York are authorized or required
by any applicable law to close.
"Common Securities" means the securities representing common
-----------------
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Preferred
----------------------
Guarantee Trustee at which the corporate trust business of the Preferred
Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Agreement is
located at Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890.
"Covered Person" means any Holder or beneficial owner of
--------------
Preferred Securities.
"Debentures" means the series of junior subordinated debt
----------
securities of the Guarantor designated the ____% Junior Subordinated
Deferrable Interest Debentures, Series B, due 20__ held by the
Institutional Trustee of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
----------------
payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
------------------
without duplication, with respect to the Preferred Securities, to the
extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions that are required to be paid on such Preferred Securities to
the extent the Issuer shall have funds available therefor, (ii) the
redemption price, including all accrued and unpaid Distributions to the
date of redemption (the "Redemption Price") to the extent the Issuer shall
have funds available therefor, with respect to any Preferred Securities
called for redemption by the Issuer, and (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Issuer (other
than in connection with the distribution of Debentures to the Holders in
exchange for Preferred Securities as provided in the Declaration), the
lesser of (a) the aggregate of the liquidation amount and all accrued and
unpaid Distributions on the Preferred Securities to the date of payment and
(b) the amount of assets of the Issuer remaining available for distribution
to Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution").
"Holder" means any holder, as registered on the books and records
------
of the Issuer of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
------------------
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenturedated as of ______ 1,199_, between
---------
the Guarantor (the "Debenture Issuer") and Wilmington Trust Company, as
trustee, as supplemented, pursuant to which certain subordinated debt
securities of the Debenture Issuer are to be issued to the Property Trustee
of the Issuer.
"Majority in liquidation amount of the Securities" means, except as
------------------------------------------------
provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of all
Preferred Securities.
"Officer's Certificate" means, with respect to any Person, a
---------------------
certificate signed by an Authorized Officer of such Person. Any Officer's
Certificate delivered with respect to compliance with a condition or
covenant provided for in this Preferred Securities Guarantee shall include:
(a) a statement that the officer signing the Officer's
Certificate has read the covenant or condition and the definition
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by the officer in rendering the Officer's
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer 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 such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
------
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Preferred Guarantee Trustee" means Wilmington Trust Company, a
---------------------------
Delaware banking corporation, until a Successor Preferred Guarantee Trustee
has been appointed and has accepted such appointment pursuant to the terms
of this Preferred Securities Guarantee and thereafter means each such
Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred
-------------------
Guarantee Trustee, any officer within the Corporate Trust Office of the
Preferred Guarantee Trustee, including any vice president, any assistant
vice president, any assistant secretary, the treasurer, any assistant
treasurer or other officer of the Corporate Trust Office of the Preferred
Guarantee Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
-------------------------------------
Guarantee Trustee possessing the qualifications to act as Preferred
Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended.
"Trust Securities" means the Common Securities and the Preferred
----------------
Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
--------------------------------
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee and shall, to the extent applicable, be
governed by such provisions; and
(b) if and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed
by Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
SECTION 2.2 Lists of Holders of Securities
------------------------------
(a) The Guarantor shall provide the Preferred Guarantee Trustee
with a list, in such form as the Preferred Guarantee Trustee may reasonably
require, of the names and addresses of the Holders of the Preferred
Securities ("List of Holders") as of such date, (i) within 1 Business Day
after January 1 and June 30 of each year, and (ii) at any other time,
within 30 days of receipt by the Guarantor of a written request for a List
of Holders as of a date no more than 14 days before such List of Holders is
given to the Preferred Guarantee Trustee; provided, however, that the
Guarantor shall not be obligated to provide such List of Holders at any
time the List of Holders does not differ from the most recent List of
Holders given to the Preferred Guarantee Trustee by the Guarantor. The
Preferred Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Preferred Guarantee Trustee
------------------------------------------
Within 60 days after May 15 of each year, the Preferred Guarantee
Trustee shall provide to the Holders of the Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any,
in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Preferred Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee
-----------------------------------------------
The Guarantor shall provide to the Preferred Guarantee Trustee
such documents, reports and information as required by Section 314 (if any)
and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
------------------------------------------------
The Guarantor shall provide to the Preferred Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided
for in this Preferred Securities Guarantee that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officer's Certificate.
SECTION 2.6 Events of Default; Waiver
-------------------------
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Preferred Securities Guarantee, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.7 Event of Default; Notice
------------------------
(a) The Preferred Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Preferred Securities, notices of all
Events of Default actually known to a Responsible Officer of the Preferred
Guarantee Trustee, unless such defaults have been cured before the giving
of such notice; provided, however, that the Preferred Guarantee Trustee
shall be protected in withholding such notice if and so long as a
Responsible Officer of the Preferred Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee
shall have received written notice, or a Responsible Officer of the
Preferred Guarantee Trustee charged with the administration of the
Declaration shall have obtained actual knowledge.
SECTION 2.8 Conflicting Interests
---------------------
The Declaration shall be deemed to be specifically described in
this Preferred Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee
----------------------------------------------------
(a) This Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of the Preferred
Securities, and the Preferred Guarantee Trustee shall not transfer this
Preferred Securities Guarantee to any Person except a Holder of Preferred
Securities exercising his or her rights pursuant to Section 5.4(b) or to a
Successor Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as Successor
Preferred Guarantee Trustee. The right, title and interest of the Preferred
Guarantee Trustee shall automatically vest in any Successor Preferred
Guarantee Trustee, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Preferred Guarantee
Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee has occurred and is continuing,
the Preferred Guarantee Trustee shall enforce this Preferred Securities
Guarantee for the benefit of the Holders of the Preferred Securities.
(c) Except during the continuance of an Event of Default,
(i) the Preferred Guarantee Trustee undertakes to perform
only such duties as are specifically set forth in this Preferred
Securities Guarantee, and no implied covenants shall be read into this
Preferred Securities Guarantee against the Preferred Guarantee
Trustee; and
(ii) in the absence of bad faith on its part, the Preferred
Guarantee Trustee may, with respect to Preferred Securities of such
series, conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Preferred Guarantee Trustee and
conforming to the requirements of this Preferred Securities Guarantee;
but in the case of any such certificates or opinions which by any
provisions hereof are specifically required to be furnished to the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Preferred Securities Guarantee.
(d) In case an Event of Default shall have occurred and be
continuing, the Preferred Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Preferred Securities Guarantee, and
use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his
or her own affairs.
(e) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee 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 (c) of this Section;
(ii) the Preferred Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of
the Preferred Guarantee Trustee, unless it shall be proved that the
Preferred Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Preferred Guarantee 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 not less than
a Majority in liquidation amount of the Preferred Securities relating
to the time, method and place of conducting any proceeding for any
remedy available to the Preferred Guarantee Trustee, or exercising any
trust or power conferred upon the Preferred Guarantee Trustee under
this Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee
shall require the Preferred Guarantee Trustee to expend or risk its
own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Preferred Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Preferred Securities Guarantee or indemnity, reasonably satisfactory
to the Preferred Guarantee Trustee, against such risk or liability is
not reasonably assured to it.
(f) The Preferred Guarantee Trustee shall be authorized to
undertake all actions set forth in Section 317(a) of the Trust
Indenture Act.
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee
---------------------------------------------
(a) Subject to the provisions of Section 3.1 and to the
applicable provisions of the Trust Indenture Act:
(i) The Preferred Guarantee Trustee may conclusively rely, and
shall be fully 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.
(ii) Any request, direction or act of the Guarantor
contemplated by this Preferred Securities Guarantee shall be
sufficiently evidenced by an Officer's Certificate, or as otherwise
expressly provided herein.
(iii) Whenever, in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Preferred Guarantee
Trustee (unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and conclusively rely
upon an Officer's Certificate.
(iv) The Preferred Guarantee Trustee may consult with
counsel of its selection, and the written advice or opinion of such
counsel with respect to legal matters 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 such
advice or opinion; and any such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any of its
employees.
(v) The Preferred Guarantee Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Preferred
Securities Guarantee at the request or direction of any Holder
pursuant to this Preferred Securities Guarantee, unless such Holder
shall have offered to the Preferred Guarantee Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in complying with such request or
direction.
(vi) The Preferred Guarantee 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
Preferred Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Preferred Guarantee Trustee shall determine to make any
such further inquiry or investigation, it shall (subject to applicable
legal requirements) be permitted to examine, during usual business
hours, the books, records and premises of the Issuer or the Guarantor,
personally or by agent or attorney.
(vii) The Preferred Guarantee 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 Preferred
Guarantee 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.
(viii) The Preferred Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument
(including any financing or continuation statement or any filing under
tax or securities laws) or any rerecording, refiling or registration
thereof.
(ix) Any action taken by the Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders of the Preferred
Securities, and the signature of the Preferred Guarantee Trustee or
its agents alone shall be sufficient and effective to perform any such
action. No third party shall be required to inquire as to the
authority of the Preferred Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Preferred
Securities Guarantee, both of which shall be conclusively evidenced by
the Preferred Guarantee Trustee's or its agent's taking such action.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee
to perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Preferred Guarantee Trustee shall be unqualified
or incompetent in accordance with applicable law, to perform any such act
or acts or to exercise any such right, power, duty or obligation. No
permissive or discretionary power or authority available to the Preferred
Guarantee Trustee shall be construed to be a duty or obligation.
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee
-----------------------------------------------------
Securities
----------
The recitals contained in this Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Preferred
Guarantee Trustee does not assume any responsibility for their correctness.
The Preferred Guarantee Trustee makes no representation as to the validity
or sufficiency of this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility
----------------------------------------
(a) There shall at all times be a Preferred Guarantee Trustee
which shall be:
(i) 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
(ii) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or other
Person organized and doing business under the laws of a foreign
government, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least Fifty
Million Dollars ($50,000,000) or the Dollar equivalent of the
applicable foreign currency and subject to supervision or examination
by authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees,
and, in either case, qualified and eligible under this Article and the
Trust Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of such supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Preferred Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Preferred Guarantee
Trustee shall immediately resign in the manner and with the effect set out
in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor (as if it were
the obligor referred to in Section 310(b) of the Trust Indenture Act) shall
in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
(d) The Preferred Guarantee Trustee shall be deemed to be
specifically described in this Preferred Securities Guarantee for purposes
of clause (i) of the first provision contained in Section 310(b) of the
Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
-----------------------------------------------------------
Trustee
-------
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee
may be appointed or removed without cause at any time by the Guarantor
except during an Event of Default under the Indenture.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall
hold office until a Successor Preferred Guarantee Trustee shall have been
appointed or until his death, removal or resignation. The Preferred
Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Preferred
Guarantee Trustee and delivered to the Guarantor, which resignation shall
not take effect until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing
executed by such Successor Preferred Guarantee Trustee and delivered to the
Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery of an instrument of removal or resignation, the
Preferred Guarantee Trustee resigning or being removed, as applicable, may
petition any court of competent jurisdiction for appointment of a Successor
Preferred Guarantee Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper and prescribe, appoint a
Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts
or omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee all
amounts accrued to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
---------
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
---------------------------
The Guarantor hereby waives notice of acceptance of this
Preferred Securities Guarantee and of any liability to which it applies or
may apply, presentment, demand for payment, any right to require a
proceeding first against the Issuer or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected
------------------------
The obligations, covenants, agreements and duties of the
Guarantor under this Preferred Securities Guarantee shall in no way be
affected or impaired by reason of the happening from time to time of any of
the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities
to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of Distributions,
Redemption Price, Liquidation Distribution or other sum payable that
results from the extension of any interest payment period on the
Debentures);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the
Preferred Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of
the foregoing.
SECTION 5.4 Rights of Holders
-----------------
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Preferred
Guarantee Trustee in respect of this Preferred Securities Guarantee or
exercising any trust or power conferred upon the Preferred Guarantee
Trustee under this Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce such
Preferred Securities Guarantee, any Holder of Preferred Securities may
institute a legal proceeding directly against the Guarantor to enforce the
Preferred Guarantee Trustee's rights under this Preferred Securities
Guarantee, without first instituting a legal proceeding against the Issuer,
the Preferred Guarantee Trustee or any other person or entity. The
Guarantor waives any right or remedy to require that any action be brought
first against the Issuer or any other person or entity before proceeding
directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
--------------------
This Preferred Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 Subrogation
-----------
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Preferred Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Preferred
Securities Guarantee; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be entitled
to enforce or exercise any right that it may acquire by way of subrogation
or any indemnity, reimbursement or other agreement, in all cases as a
result of payment under this Preferred Securities Guarantee, if, at the
time of any such payment, any amounts are due and unpaid under this
Preferred Securities Guarantee. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to
the Holders.
SECTION 5.7 Independent Obligations
-----------------------
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Preferred Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.1 Ranking
-------
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in
right of payment to all other liabilities of the Guarantor and (ii) pari
passu with the Common Securities Guarantee and any other guarantee now or
hereafter entered into by the Guarantor with respect to any preferred
securities issued by any trust, partnership or other entity which is a
financing vehicle of the Guarantor, except that, where an Event of Default
(as defined in the Indenture) occurs and is continuing, the rights of
holders of the Common Securities and the rights of the Guarantor or any
Affiliate of the Guarantor to payment in respect of Distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights to payment of Holders of Preferred Securities.
SECTION 6.2 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 Preferred Securities Guarantee shall be subject to the provisions
of this Article Six, so far as the same may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the
provisions of Section 6.1(i) shall be of no further effect with respect to
all or a portion of all other liabilities of the Guarantor, and this
Preferred Securities Guarantee shall no longer be subordinated in right of
payment to such other liabilities of the Guarantor, to the extent that the
Guarantor shall have delivered to the Preferred Guarantee Trustee a notice
to such effect specifying therein such other liabilities to which this
Preferred Securities Guarantee shall no longer be subordinated and shall
have taken correlative action with respect to the Common Securities
Guarantee.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
-----------
This Preferred Securities Guarantee shall terminate upon (i) full
payment of the Redemption Price of all Preferred Securities, (ii) upon the
distribution of the Debentures to the Holders of all of the Preferred
Securities or (iii) upon full payment of the amounts payable in accordance
with the Declaration upon liquidation of the Issuer. Notwithstanding the
foregoing, this Preferred Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any
Holder of Preferred Securities must restore payment of any sums paid under
the Preferred Securities or under this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
-----------
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance
with this Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Preferred Securities
Guarantee or by law, except that an Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as
to matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of Preferred
Securities might properly be paid.
SECTION 8.2 Indemnification
---------------
The Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against, any and all loss,
liability, damage, claim or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 8.2 shall survive the
termination of this Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Assignment
----------
The Guarantor may assign its obligations under this Preferred
Securities Guarantee and thereupon be released and discharged from all
obligations hereunder upon compliance with the conditions set forth in
Section 1005(a)(i)-(iv) of the Indenture.
SECTION 9.2 Successors and Assigns
----------------------
All guarantees and agreements contained in this Preferred
Securities Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Preferred Securities then outstanding.
SECTION 9.3 Amendments
----------
Except with respect to any changes that do not adversely affect
the rights of Holders (in which case no consent of Holders will be
required), this Preferred Securities Guarantee may only be amended with the
prior approval of the Holders of at least a Majority in liquidation amount
(including the stated amount that would be paid on redemption, liquidation
or otherwise, plus accrued and unpaid Distributions to the date upon which
the voting percentages are determined) of all the outstanding Preferred
Securities. The provisions of Section 12.2 of the Declaration with respect
to meetings of Holders of the Securities apply to the giving of such
approval.
SECTION 9.4 Notices
-------
All notices provided for in this Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall
be delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the
Preferred Guarantee Trustee's mailing address set forth below (or such
other address as the Preferred Guarantee Trustee may give notice of to the
Holders of the Preferred Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telecopy: (302) 651-1576
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give
notice of to the Holders of the Preferred Securities):
The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Telecopy: (509) 482-4879
(c) If given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
SECTION 9.5 Benefit
-------
This Preferred Securities Guarantee is solely for the benefit of
the Holders of the Preferred Securities and, subject to Section 3.1(a), is
not separately transferable from the Preferred Securities.
SECTION 9.6 Governing Law
-------------
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 9.7 Counterparts
------------
This Preferred Securities Guarantee may contain more than one
counterpart of the signature page and this Preferred Securities Guarantee
may be executed by the affixing of the signature of each of the parties
hereto to one of such counterpart signature pages. All of such counterpart
signature pages shall be read as though one, and they shall have the same
force and effect as though all of the signers had signed a single signature
page.
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
THE WASHINGTON WATER POWER
COMPANY, as Guarantor
By:_________________________
Name: _____________
Title: _________
WILMINGTON TRUST COMPANY, as
Preferred Guarantee Trustee
By:_________________________
Name: _____________
Title: _________
EXHIBIT 4(a)-16
===========================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
Washington Water Power Capital III
Dated as of ______, 199_
===========================================
THE WASHINGTON WATER POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
PREFERRED SECURITIES GUARANTEE, DATED AS OF ________ 1, 199_*
---------------------------------------------------------------
PREFERRED SECURITIES
TRUST INDENTURE ACT SECTION GUARANTEE SECTION(S)
--------------------------- --------------------
310(a)(1) . . . . . . . . . . . . . . . 4.1(a)
(a)(2) . . . . . . . . . . . . . . . . . . . 4.1(a)
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 2.8, 4.1(c), 4.1(d)
(c) . . . . . . . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . . . . . . 2.2(b)
(b) . . . . . . . . . . . . . . . . . . 2.2(b)
(c) . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . 2.2(a)
(b) . . . . . . . . . . . . . . . . . . . 2.2(b)
313 . . . . . . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . . . . . . 2.4
(b) . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . 2.5
(d) . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . 1.1 (Definition of
Officer's
Certificate
315(a) . . . . . . . . . . . . . . . . 3.1(c)
(b) . . . . . . . . . . . . . . . . . . . 2.7(a)
(c) . . . . . . . . . . . . . . . . . . . 3.1(d)
(d) . . . . . . . . . . . . . . . . . . . 3.1(e)
316(a)(1) . . . . . . . . . . . . . . . 2.6, 5.4(a)
(b) . . . . . . . . . . . . . . . . . . . 5.4(b)
(c) . . . . . . . . . . . . . . . . . . . Not Applicable
317 . . . . . . . . . . . . . . . . . . 3.1(f)
318 . . . . . . . . . . . . . . . . . . 2.1
_____________________________
* This Reconciliation and Tie does not constitute part of the Preferred
Securities Guarantee and shall not affect the interpretation of any of
its terms or provisions.
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation . . . . . . . . . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . 5
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . . . . 5
SECTION 2.3 Reports by the Preferred Guarantee Trustee . . . . . . . . 5
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee . . . . 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . . . 6
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . . . . . . . 6
SECTION 2.7 Event of Default; Notice . . . . . . . . . . . . . . . . . 6
SECTION 2.8 Conflicting Interests . . . . . . . . . . . . . . . . . . 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee . . . 7
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee . . . . . . 9
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee
Securities . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility . . . . . . . . 11
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.2 Waiver of Notice and Demand . . . . . . . . . . . . . . 13
SECTION 5.3 Obligations Not Affected . . . . . . . . . . . . . . . . 13
SECTION 5.4 Rights of Holders . . . . . . . . . . . . . . . . . . . 14
SECTION 5.5 Guarantee of Payment . . . . . . . . . . . . . . . . . . 14
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.7 Independent Obligations . . . . . . . . . . . . . . . . 15
ARTICLE VI
SUBORDINATION
SECTION 6.1 Ranking . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.2 Effect of Subordination Provisions; Termination . . . . 15
ARTICLE VII
TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 8.2 Indemnification . . . . . . . . . . . . . . . . . . . . 17
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Assignment . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.2 Successors and Assigns . . . . . . . . . . . . . . . . . 17
SECTION 9.3 Amendments . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.5 Benefit . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.6 Governing Law . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . 19
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"),
dated as of ______, 199_, is executed and delivered by The Washington Water
Power Company, a Washington corporation (the "Guarantor"), and Wilmington
Trust Company, a Delaware banking corporation, as trustee (the "Preferred
Guarantee Trustee"), for the benefit of the Holders (as defined herein)
from time to time of the Preferred Securities (as defined herein) of
Washington Water Power Capital III, a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of ______, 199_, among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the holders from time
to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing on the date hereof __________ preferred securities,
having an aggregate liquidation amount of $___________, designated the
____% Trust Originated Preferred Securities, Series C (the "Preferred
Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth in this Preferred Securities Guarantee, to pay to
the Holders of the Preferred Securities the Guarantee Payments (as defined
herein); and
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") in substantially
identical terms to this Preferred Securities Guarantee for the benefit of
the holders of the Common Securities (as defined herein), except that if an
Event of Default (as defined in the Indenture), has occurred and is
continuing, the rights of holders of the Common Securities to receive
Guarantee Payments (as defined in the Common Securities Guarantee) under
the Common Securities Guarantee are subordinated to the rights of Holders
of Preferred Securities to receive Guarantee Payments under this Preferred
Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder
of Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Preferred
Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
------------------------------
In this Preferred Securities Guarantee, unless the context
otherwise requires:
(a) Capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b) terms defined in the Declaration as at the date of execution
of this Preferred Securities Guarantee have the same meaning
when used in this Preferred Securities Guarantee unless
otherwise defined in this Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or
"this Preferred Securities Guarantee" are to this Preferred
Securities Guarantee as modified, supplemented or amended
from time to time;
(e) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this
Preferred Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same
meaning when used in this Preferred Securities Guarantee,
unless otherwise defined in this Preferred Securities
Guarantee or unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
---------
405 of the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Business Day" means any day other than a day on which banking
------------
institutions in the City of New York, New York are authorized or required
by any applicable law to close.
"Common Securities" means the securities representing common
-----------------
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Preferred
----------------------
Guarantee Trustee at which the corporate trust business of the Preferred
Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Agreement is
located at Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890.
"Covered Person" means any Holder or beneficial owner of Preferred
--------------
Securities.
"Debentures" means the series of junior subordinated debt
----------
securities of the Guarantor designated the ____% Junior Subordinated
Deferrable Interest Debentures, Series C, due 20__ held by the
Institutional Trustee of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
----------------
payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
------------------
without duplication, with respect to the Preferred Securities, to the
extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions that are required to be paid on such Preferred Securities to
the extent the Issuer shall have funds available therefor, (ii) the
redemption price, including all accrued and unpaid Distributions to the
date of redemption (the "Redemption Price") to the extent the Issuer shall
have funds available therefor, with respect to any Preferred Securities
called for redemption by the Issuer, and (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Issuer (other
than in connection with the distribution of Debentures to the Holders in
exchange for Preferred Securities as provided in the Declaration), the
lesser of (a) the aggregate of the liquidation amount and all accrued and
unpaid Distributions on the Preferred Securities to the date of payment and
(b) the amount of assets of the Issuer remaining available for distribution
to Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution").
"Holder" means any holder, as registered on the books and records
------
of the Issuer of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
------------------
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenturedated as of ______ 1,199_, between
---------
the Guarantor (the "Debenture Issuer") and Wilmington Trust Company, as
trustee, as supplemented, pursuant to which certain subordinated debt
securities of the Debenture Issuer are to be issued to the Property Trustee
of the Issuer.
"Majority in liquidation amount of the Securities" means, except as
------------------------------------------------
provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of all
Preferred Securities.
"Officer's Certificate" means, with respect to any Person, a
---------------------
certificate signed by an Authorized Officer of such Person. Any Officer's
Certificate delivered with respect to compliance with a condition or
covenant provided for in this Preferred Securities Guarantee shall include:
(a) a statement that the officer signing the Officer's
Certificate has read the covenant or condition and the definition
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by the officer in rendering the Officer's
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer 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 such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
------
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Preferred Guarantee Trustee" means Wilmington Trust Company, a
---------------------------
Delaware banking corporation, until a Successor Preferred Guarantee Trustee
has been appointed and has accepted such appointment pursuant to the terms
of this Preferred Securities Guarantee and thereafter means each such
Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred
-------------------
Guarantee Trustee, any officer within the Corporate Trust Office of the
Preferred Guarantee Trustee, including any vice president, any assistant
vice president, any assistant secretary, the treasurer, any assistant
treasurer or other officer of the Corporate Trust Office of the Preferred
Guarantee Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
-------------------------------------
Guarantee Trustee possessing the qualifications to act as Preferred
Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-----------------
amended.
"Trust Securities" means the Common Securities and the Preferred
----------------
Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
--------------------------------
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee and shall, to the extent applicable, be
governed by such provisions; and
(b) if and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed
by Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
SECTION 2.2 Lists of Holders of Securities
------------------------------
(a) The Guarantor shall provide the Preferred Guarantee Trustee
with a list, in such form as the Preferred Guarantee Trustee may reasonably
require, of the names and addresses of the Holders of the Preferred
Securities ("List of Holders") as of such date, (i) within 1 Business Day
after January 1 and June 30 of each year, and (ii) at any other time,
within 30 days of receipt by the Guarantor of a written request for a List
of Holders as of a date no more than 14 days before such List of Holders is
given to the Preferred Guarantee Trustee; provided, however, that the
Guarantor shall not be obligated to provide such List of Holders at any
time the List of Holders does not differ from the most recent List of
Holders given to the Preferred Guarantee Trustee by the Guarantor. The
Preferred Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Preferred Guarantee Trustee
------------------------------------------
Within 60 days after May 15 of each year, the Preferred Guarantee
Trustee shall provide to the Holders of the Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any,
in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Preferred Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee
-----------------------------------------------
The Guarantor shall provide to the Preferred Guarantee Trustee
such documents, reports and information as required by Section 314 (if any)
and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
------------------------------------------------
The Guarantor shall provide to the Preferred Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided
for in this Preferred Securities Guarantee that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officer's Certificate.
SECTION 2.6 Events of Default; Waiver
-------------------------
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Preferred Securities Guarantee, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.7 Event of Default; Notice
------------------------
(a) The Preferred Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Preferred Securities, notices of all
Events of Default actually known to a Responsible Officer of the Preferred
Guarantee Trustee, unless such defaults have been cured before the giving
of such notice; provided, however, that the Preferred Guarantee Trustee
shall be protected in withholding such notice if and so long as a
Responsible Officer of the Preferred Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee
shall have received written notice, or a Responsible Officer of the
Preferred Guarantee Trustee charged with the administration of the
Declaration shall have obtained actual knowledge.
SECTION 2.8 Conflicting Interests
---------------------
The Declaration shall be deemed to be specifically described in
this Preferred Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee
----------------------------------------------------
(a) This Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of the Preferred
Securities, and the Preferred Guarantee Trustee shall not transfer this
Preferred Securities Guarantee to any Person except a Holder of Preferred
Securities exercising his or her rights pursuant to Section 5.4(b) or to a
Successor Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as Successor
Preferred Guarantee Trustee. The right, title and interest of the Preferred
Guarantee Trustee shall automatically vest in any Successor Preferred
Guarantee Trustee, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Preferred Guarantee
Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Preferred Guarantee Trustee has occurred and is continuing,
the Preferred Guarantee Trustee shall enforce this Preferred Securities
Guarantee for the benefit of the Holders of the Preferred Securities.
(c) Except during the continuance of an Event of Default,
(i) the Preferred Guarantee Trustee undertakes to perform
only such duties as are specifically set forth in this Preferred
Securities Guarantee, and no implied covenants shall be read into this
Preferred Securities Guarantee against the Preferred Guarantee
Trustee; and
(ii) in the absence of bad faith on its part, the Preferred
Guarantee Trustee may, with respect to Preferred Securities of such
series, conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Preferred Guarantee Trustee and
conforming to the requirements of this Preferred Securities Guarantee;
but in the case of any such certificates or opinions which by any
provisions hereof are specifically required to be furnished to the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Preferred Securities Guarantee.
(d) In case an Event of Default shall have occurred and be
continuing, the Preferred Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Preferred Securities Guarantee, and
use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his
or her own affairs.
(e) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee 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 (c) of this Section;
(ii) the Preferred Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of
the Preferred Guarantee Trustee, unless it shall be proved that the
Preferred Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Preferred Guarantee 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 not less than
a Majority in liquidation amount of the Preferred Securities relating
to the time, method and place of conducting any proceeding for any
remedy available to the Preferred Guarantee Trustee, or exercising any
trust or power conferred upon the Preferred Guarantee Trustee under
this Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee
shall require the Preferred Guarantee Trustee to expend or risk its
own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Preferred Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Preferred Securities Guarantee or indemnity, reasonably satisfactory
to the Preferred Guarantee Trustee, against such risk or liability is
not reasonably assured to it.
(f) The Preferred Guarantee Trustee shall be authorized to
undertake all actions set forth in Section 317(a) of the Trust
Indenture Act.
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee
---------------------------------------------
(a) Subject to the provisions of Section 3.1 and to the
applicable provisions of the Trust Indenture Act:
(i) The Preferred Guarantee Trustee may conclusively rely, and
shall be fully 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.
(ii) Any request, direction or act of the Guarantor
contemplated by this Preferred Securities Guarantee shall be
sufficiently evidenced by an Officer's Certificate, or as otherwise
expressly provided herein.
(iii) Whenever, in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Preferred Guarantee
Trustee (unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and conclusively rely
upon an Officer's Certificate.
(iv) The Preferred Guarantee Trustee may consult with
counsel of its selection, and the written advice or opinion of such
counsel with respect to legal matters 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 such
advice or opinion; and any such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any of its
employees.
(v) The Preferred Guarantee Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Preferred
Securities Guarantee at the request or direction of any Holder
pursuant to this Preferred Securities Guarantee, unless such Holder
shall have offered to the Preferred Guarantee Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in complying with such request or
direction.
(vi) The Preferred Guarantee 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
Preferred Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Preferred Guarantee Trustee shall determine to make any
such further inquiry or investigation, it shall (subject to applicable
legal requirements) be permitted to examine, during usual business
hours, the books, records and premises of the Issuer or the Guarantor,
personally or by agent or attorney.
(vii) The Preferred Guarantee 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 Preferred
Guarantee 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.
(viii) The Preferred Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument
(including any financing or continuation statement or any filing under
tax or securities laws) or any rerecording, refiling or registration
thereof.
(ix) Any action taken by the Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders of the Preferred
Securities, and the signature of the Preferred Guarantee Trustee or
its agents alone shall be sufficient and effective to perform any such
action. No third party shall be required to inquire as to the
authority of the Preferred Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Preferred
Securities Guarantee, both of which shall be conclusively evidenced by
the Preferred Guarantee Trustee's or its agent's taking such action.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee
to perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Preferred Guarantee Trustee shall be unqualified
or incompetent in accordance with applicable law, to perform any such act
or acts or to exercise any such right, power, duty or obligation. No
permissive or discretionary power or authority available to the Preferred
Guarantee Trustee shall be construed to be a duty or obligation.
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee
-----------------------------------------------------
Securities
----------
The recitals contained in this Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Preferred
Guarantee Trustee does not assume any responsibility for their correctness.
The Preferred Guarantee Trustee makes no representation as to the validity
or sufficiency of this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility
----------------------------------------
(a) There shall at all times be a Preferred Guarantee Trustee
which shall be:
(i) 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
(ii) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or other
Person organized and doing business under the laws of a foreign
government, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least Fifty
Million Dollars ($50,000,000) or the Dollar equivalent of the
applicable foreign currency and subject to supervision or examination
by authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees,
and, in either case, qualified and eligible under this Article and the
Trust Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of such supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Preferred Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Preferred Guarantee
Trustee shall immediately resign in the manner and with the effect set out
in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor (as if it were
the obligor referred to in Section 310(b) of the Trust Indenture Act) shall
in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
(d) The Preferred Guarantee Trustee shall be deemed to be
specifically described in this Preferred Securities Guarantee for purposes
of clause (i) of the first provision contained in Section 310(b) of the
Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
-----------------------------------------------------------
Trustee
-------
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee
may be appointed or removed without cause at any time by the Guarantor
except during an Event of Default under the Indenture.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall
hold office until a Successor Preferred Guarantee Trustee shall have been
appointed or until his death, removal or resignation. The Preferred
Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Preferred
Guarantee Trustee and delivered to the Guarantor, which resignation shall
not take effect until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing
executed by such Successor Preferred Guarantee Trustee and delivered to the
Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery of an instrument of removal or resignation, the
Preferred Guarantee Trustee resigning or being removed, as applicable, may
petition any court of competent jurisdiction for appointment of a Successor
Preferred Guarantee Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper and prescribe, appoint a
Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts
or omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee all
amounts accrued to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
---------
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
---------------------------
The Guarantor hereby waives notice of acceptance of this
Preferred Securities Guarantee and of any liability to which it applies or
may apply, presentment, demand for payment, any right to require a
proceeding first against the Issuer or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected
------------------------
The obligations, covenants, agreements and duties of the
Guarantor under this Preferred Securities Guarantee shall in no way be
affected or impaired by reason of the happening from time to time of any of
the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities
to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of Distributions,
Redemption Price, Liquidation Distribution or other sum payable that
results from the extension of any interest payment period on the
Debentures);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the
Preferred Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of
the foregoing.
SECTION 5.4 Rights of Holders
-----------------
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Preferred
Guarantee Trustee in respect of this Preferred Securities Guarantee or
exercising any trust or power conferred upon the Preferred Guarantee
Trustee under this Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce such
Preferred Securities Guarantee, any Holder of Preferred Securities may
institute a legal proceeding directly against the Guarantor to enforce the
Preferred Guarantee Trustee's rights under this Preferred Securities
Guarantee, without first instituting a legal proceeding against the Issuer,
the Preferred Guarantee Trustee or any other person or entity. The
Guarantor waives any right or remedy to require that any action be brought
first against the Issuer or any other person or entity before proceeding
directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
--------------------
This Preferred Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 Subrogation
-----------
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Preferred Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Preferred
Securities Guarantee; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be entitled
to enforce or exercise any right that it may acquire by way of subrogation
or any indemnity, reimbursement or other agreement, in all cases as a
result of payment under this Preferred Securities Guarantee, if, at the
time of any such payment, any amounts are due and unpaid under this
Preferred Securities Guarantee. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to
the Holders.
SECTION 5.7 Independent Obligations
-----------------------
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Preferred Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.1 Ranking
-------
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in
right of payment to all other liabilities of the Guarantor and (ii) pari
passu with the Common Securities Guarantee and any other guarantee now or
hereafter entered into by the Guarantor with respect to any preferred
securities issued by any trust, partnership or other entity which is a
financing vehicle of the Guarantor, except that, where an Event of Default
(as defined in the Indenture) occurs and is continuing, the rights of
holders of the Common Securities and the rights of the Guarantor or any
Affiliate of the Guarantor to payment in respect of Distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights to payment of Holders of Preferred Securities.
SECTION 6.2 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 Preferred Securities Guarantee shall be subject to the provisions
of this Article Six, so far as the same may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the
provisions of Section 6.1(i) shall be of no further effect with respect to
all or a portion of all other liabilities of the Guarantor, and this
Preferred Securities Guarantee shall no longer be subordinated in right of
payment to such other liabilities of the Guarantor, to the extent that the
Guarantor shall have delivered to the Preferred Guarantee Trustee a notice
to such effect specifying therein such other liabilities to which this
Preferred Securities Guarantee shall no longer be subordinated and shall
have taken correlative action with respect to the Common Securities
Guarantee.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
-----------
This Preferred Securities Guarantee shall terminate upon (i) full
payment of the Redemption Price of all Preferred Securities, (ii) upon the
distribution of the Debentures to the Holders of all of the Preferred
Securities or (iii) upon full payment of the amounts payable in accordance
with the Declaration upon liquidation of the Issuer. Notwithstanding the
foregoing, this Preferred Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any
Holder of Preferred Securities must restore payment of any sums paid under
the Preferred Securities or under this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
-----------
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance
with this Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Preferred Securities
Guarantee or by law, except that an Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as
to matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of Preferred
Securities might properly be paid.
SECTION 8.2 Indemnification
---------------
The Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against, any and all loss,
liability, damage, claim or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 8.2 shall survive the
termination of this Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Assignment
----------
The Guarantor may assign its obligations under this Preferred
Securities Guarantee and thereupon be released and discharged from all
obligations hereunder upon compliance with the conditions set forth in
Section 1005(a)(i)-(iv) of the Indenture.
SECTION 9.2 Successors and Assigns
----------------------
All guarantees and agreements contained in this Preferred
Securities Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Preferred Securities then outstanding.
SECTION 9.3 Amendments
----------
Except with respect to any changes that do not adversely affect
the rights of Holders (in which case no consent of Holders will be
required), this Preferred Securities Guarantee may only be amended with the
prior approval of the Holders of at least a Majority in liquidation amount
(including the stated amount that would be paid on redemption, liquidation
or otherwise, plus accrued and unpaid Distributions to the date upon which
the voting percentages are determined) of all the outstanding Preferred
Securities. The provisions of Section 12.2 of the Declaration with respect
to meetings of Holders of the Securities apply to the giving of such
approval.
SECTION 9.4 Notices
-------
All notices provided for in this Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall
be delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the
Preferred Guarantee Trustee's mailing address set forth below (or such
other address as the Preferred Guarantee Trustee may give notice of to the
Holders of the Preferred Securities):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telecopy: (302) 651-1576
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give
notice of to the Holders of the Preferred Securities):
The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Telecopy: (509) 482-4879
(c) If given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
SECTION 9.5 Benefit
-------
This Preferred Securities Guarantee is solely for the benefit of
the Holders of the Preferred Securities and, subject to Section 3.1(a), is
not separately transferable from the Preferred Securities.
SECTION 9.6 Governing Law
-------------
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 9.7 Counterparts
------------
This Preferred Securities Guarantee may contain more than one
counterpart of the signature page and this Preferred Securities Guarantee
may be executed by the affixing of the signature of each of the parties
hereto to one of such counterpart signature pages. All of such counterpart
signature pages shall be read as though one, and they shall have the same
force and effect as though all of the signers had signed a single signature
page.
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
THE WASHINGTON WATER POWER
COMPANY, as Guarantor
By:_________________________
Name: _____________
Title: _________
WILMINGTON TRUST COMPANY, as
Preferred Guarantee Trustee
By:_________________________
Name: _____________
Title: _________
EXHIBIT 4(a)-17
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of _________, 199_, between The Washington
Water Power Company, a Washington corporation ("Washington Water Power"),
and Washington Water Power Capital I, a Delaware business trust (the
"Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive ___% Junior Subordinated Deferrable
Interest Debentures, Series A, due 20__ (the "Subordinated Debt
Securities") from Washington Water Power and to issue its ___% Trust
Originated Preferred Securities, Series A (the "Preferred Securities") with
such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Declaration of Trust of the Trust dated
as of _________, 199_ as the same may be amended from time to time (the
"Declaration");
WHEREAS, Washington Water Power will directly own all of the
Common Securities and will issue the Subordinated Debt Securities;
NOW, THEREFORE, in consideration of the purchase by each holder
of the Preferred Securities, which purchase Washington Water Power hereby
agrees shall benefit Washington Water Power and which purchase Washington
Water Power acknowledges will be made in reliance upon the execution and
delivery of this Agreement, Washington Water Power, including in its
capacity as holder of the Common Securities, and the Trust hereby agree as
follows:
ARTICLE I
Section 1.01. Guarantee by Washington Water Power. Subject to
-----------------------------------
the terms and conditions hereof, Washington Water Power hereby irrevocably
and unconditionally guarantees the full payment, when and as due, of any
and all Obligations (as hereinafter defined) to each person or entity to
whom the Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries"). As used herein, "Obligations" means any indebtedness,
expenses or liabilities of the Trust, other than obligations of the Trust
to pay to holders of any Preferred Securities the amounts due such holders
pursuant to the terms of the Preferred Securities. This Agreement is
intended to be for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate
-----------------
and be of no further force and effect upon the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at
any time any holder of Preferred Securities or any Beneficiary must restore
payment of any sums paid under the Preferred Securities, under any
Obligation, under the Preferred Securities Guarantee Agreement dated the
date hereof by Washington Water Power and Wilmington Trust Company, as
guarantee trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Washington Water Power hereby
----------------
waives notice of acceptance of this Agreement and of any Obligation to
which it applies or may apply, and Washington Water Power hereby waives
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
Section 1.04. No Impairment. The obligations, covenants,
-------------
agreements and duties of Washington Water Power under this Agreement shall
in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part
of the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, Washington Water Power with respect to the happening
of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
-----------
Agreement directly against Washington Water Power and Washington Water
Power waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding against
Washington Water Power.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
--------------
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of Washington Water Power and shall inure to
the benefit of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
---------
Beneficiary or any Preferred Securities of any series are outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other
-------
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or
upon receipt of an answer-back, if sent by telex), to wit:
Washington Water Power Capital I
c/o The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Facsimile No.: (509) 482-4879
The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Facsimile No.: (509) 482-4879
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
THIS EXPENSE AGREEMENT is executed as of the day and year first
above
written.
THE WASHINGTON WATER POWER COMPANY
By: ______________________________
Name: ____________________
Title: ____________________
WASHINGTON WATER POWER CAPITAL I
By: ______________________________
not in his/her individual capacity, but
solely as Regular Trustee
EXHIBIT 4(a)-18
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of _________, 199_, between The Washington
Water Power Company, a Washington corporation ("Washington Water Power"),
and Washington Water Power Capital II, a Delaware business trust (the
"Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive ___% Junior Subordinated Deferrable
Interest Debentures, Series B, due 20__ (the "Subordinated Debt
Securities") from Washington Water Power and to issue its ___% Trust
Originated Preferred Securities, Series B (the "Preferred Securities") with
such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Declaration of Trust of the Trust dated
as of _________, 199_ as the same may be amended from time to time (the
"Declaration");
WHEREAS, Washington Water Power will directly own all of the
Common Securities and will issue the Subordinated Debt Securities;
NOW, THEREFORE, in consideration of the purchase by each holder
of the Preferred Securities, which purchase Washington Water Power hereby
agrees shall benefit Washington Water Power and which purchase Washington
Water Power acknowledges will be made in reliance upon the execution and
delivery of this Agreement, Washington Water Power, including in its
capacity as holder of the Common Securities, and the Trust hereby agree as
follows:
ARTICLE I
Section 1.01. Guarantee by Washington Water Power. Subject to
-----------------------------------
the terms and conditions hereof, Washington Water Power hereby irrevocably
and unconditionally guarantees the full payment, when and as due, of any
and all Obligations (as hereinafter defined) to each person or entity to
whom the Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries"). As used herein, "Obligations" means any indebtedness,
expenses or liabilities of the Trust, other than obligations of the Trust
to pay to holders of any Preferred Securities the amounts due such holders
pursuant to the terms of the Preferred Securities. This Agreement is
intended to be for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate
-----------------
and be of no further force and effect upon the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at
any time any holder of Preferred Securities or any Beneficiary must restore
payment of any sums paid under the Preferred Securities, under any
Obligation, under the Preferred Securities Guarantee Agreement dated the
date hereof by Washington Water Power and Wilmington Trust Company, as
guarantee trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Washington Water Power hereby
----------------
waives notice of acceptance of this Agreement and of any Obligation to
which it applies or may apply, and Washington Water Power hereby waives
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
Section 1.04. No Impairment. The obligations, covenants,
-------------
agreements and duties of Washington Water Power under this Agreement shall
in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part
of the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, Washington Water Power with respect to the happening
of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
-----------
Agreement directly against Washington Water Power and Washington Water
Power waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding against
Washington Water Power.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
--------------
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of Washington Water Power and shall inure to
the benefit of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
---------
Beneficiary or any Preferred Securities of any series are outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other
-------
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or
upon receipt of an answer-back, if sent by telex), to wit:
Washington Water Power Capital II
c/o The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Facsimile No.: (509) 482-4879
The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Facsimile No.: (509) 482-4879
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
THIS EXPENSE AGREEMENT is executed as of the day and year first
above written.
THE WASHINGTON WATER POWER COMPANY
By: ______________________________
Name: _____________________
Title: ____________________
WASHINGTON WATER POWER CAPITAL II
By: ______________________________
___________________
not in his/her individual capacity, but
solely as Regular Trustee
Exhibit 4(a)-19
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of _________, 199_, between The Washington
Water Power Company, a Washington corporation ("Washington Water Power"),
and Washington Water Power Capital III, a Delaware business trust (the
"Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive ___% Junior Subordinated Deferrable
Interest Debentures, Series C, due 20__ (the "Subordinated Debt
Securities") from Washington Water Power and to issue its ___% Trust
Originated Preferred Securities, Series C (the "Preferred Securities") with
such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Declaration of Trust of the Trust dated
as of _________, 199_ as the same may be amended from time to time (the
"Declaration");
WHEREAS, Washington Water Power will directly own all of the
Common Securities and will issue the Subordinated Debt Securities;
NOW, THEREFORE, in consideration of the purchase by each holder
of the Preferred Securities, which purchase Washington Water Power hereby
agrees shall benefit Washington Water Power and which purchase Washington
Water Power acknowledges will be made in reliance upon the execution and
delivery of this Agreement, Washington Water Power, including in its
capacity as holder of the Common Securities, and the Trust hereby agree as
follows:
ARTICLE I
Section 1.01. Guarantee by Washington Water Power. Subject to
-----------------------------------
the terms and conditions hereof, Washington Water Power hereby irrevocably
and unconditionally guarantees the full payment, when and as due, of any
and all Obligations (as hereinafter defined) to each person or entity to
whom the Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries"). As used herein, "Obligations" means any indebtedness,
expenses or liabilities of the Trust, other than obligations of the Trust
to pay to holders of any Preferred Securities the amounts due such holders
pursuant to the terms of the Preferred Securities. This Agreement is
intended to be for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate
-----------------
and be of no further force and effect upon the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at
any time any holder of Preferred Securities or any Beneficiary must restore
payment of any sums paid under the Preferred Securities, under any
Obligation, under the Preferred Securities Guarantee Agreement dated the
date hereof by Washington Water Power and Wilmington Trust Company, as
guarantee trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Washington Water Power hereby
----------------
waives notice of acceptance of this Agreement and of any Obligation to
which it applies or may apply, and Washington Water Power hereby waives
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
Section 1.04. No Impairment. The obligations, covenants,
-------------
agreements and duties of Washington Water Power under this Agreement shall
in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part
of the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, Washington Water Power with respect to the happening
of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
-----------
Agreement directly against Washington Water Power and Washington Water
Power waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding against
Washington Water Power.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
--------------
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of Washington Water Power and shall inure to
the benefit of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
---------
Beneficiary or any Preferred Securities of any series are outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other
-------
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or
upon receipt of an answer-back, if sent by telex), to wit:
Washington Water Power Capital III
c/o The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Facsimile No.: (509) 482-4879
The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Attention: Treasurer
Facsimile No.: (509) 482-4879
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
THIS EXPENSE AGREEMENT is executed as of the day and year first
above written.
THE WASHINGTON WATER POWER COMPANY
By:______________________________
Name: ____________________
Title: ____________________
WASHINGTON WATER POWER CAPITAL III
By:______________________________
___________________
not in his/her individual capacity, but
solely as Regular Trustee
EXHIBIT 5(a)
November 18, 1996
The Washington Water Power Company
1411 East Mission Avenue
Spokane, WA 99202
Ladies & Gentlemen:
We are acting as counsel to The Washington Water Power
Company (the "Company") in connection with the proposed issuance
of (i) Preferred Securities (the "Preferred Securities") of
Washington Water Power Capital I, Washington Water Power Capital
II and Washington Water Power Capital III (the "Trusts") to be
offered in one or more underwritten public offerings; (ii) Junior
Subordinated Deferrable Interest Debentures (the "Debt
Securities") of the Company to be issued pursuant to the terms of
an indenture from the Company to the Wilmington Trust Company, as
trustee (the "Indenture"), either to be issued and sold by the
Company to the Trusts or to be offered in one or more
underwritten public offerings; and (iii) Guarantee Agreements of
the Company with respect to the Preferred Securities (the
"Guarantees") between the Company and the Wilmington Trust
Company, as trustee. The Preferred Securities and the Debt
Securities are to be issued in a combined aggregate liquidation
amount or principal amount of up to $150,000,000, as contemplated
by the registration statement on Form S-3 proposed to be filed by
the Company and the Trusts with the Securities and Exchange
Commission on or about the date hereof for the registration of
the Preferred Securities, the Debt Securities and the Guarantees
under the Securities Act of 1933, as amended (the "Act"), said
registration statement, as it may be amended, being hereinafter
called the "Registration Statement".
We have examined and are familiar with originals or copies,
certified or otherwise identified to our satisfaction, of (i) the
Registration Statement, (ii) the Indenture, (iii) a form of the
Guarantees, in the form of the initial Guarantee with respect to
the Preferred Securities of Washington Water Power Capital I, and
(iv) a Certificate of Existence/Authorization issued by the
Secretary of State of Washington. We have also examined such
other documents and satisfied ourselves as to such other matters
as we have deemed necessary in order to render this opinion. As
to various facts material to the opinions expressed below, we
have relied on certificates of public officials, certificates of
officers or employees of the Company, representations contained
in the documents, and other oral or written assurances by
officers or employees of the Company.
Based upon the foregoing and subject to the qualifications
hereinafter expressed, we are of the opinion that the Company is
a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Washington; and we are
also of the opinion that, when:
(a) the Company's Board of Directors shall have taken
such action as may be necessary to authorize the issuance
and sale by the Company of the Debt Securities and the
Guarantees on the terms set forth or contemplated by the
Registration Statement, as to be amended or supplemented,
and exhibits thereto, and to authorize such other action as
may be necessary in connection with the issuance and sale by
the Company of the Debt Securities and the Guarantees from
time to time; and
(b) the Washington Utilities and Transportation
Commission, the California Public Utilities Commission, the
Idaho Public Utilities Commission and the Public Utility
Commission of Oregon shall have issued, pursuant to
applications filed by the Company with said regulatory
authorities, appropriate orders authorizing the issuance and
sale by the Company of the Debt Securities and the
Guarantees on such terms;
the issuance and sale of the Debt Securities and the Guarantees
by the Company, on such terms and otherwise as contemplated by
and in conformity with the acts, proceedings and documents
referred to above, will have been duly authorized by all
necessary corporate action on the part of the Company, and no
further approval, authorization, consent or other order of, or
filing with, any governmental agency of the States of Washington,
California, Idaho, Montana and Oregon will be legally required
for the authorization of the issuance and sale by the Company of
the Debt Securities or the Guarantees or in order for the Debt
Securities or the Guarantees to constitute valid and binding
obligations of the Company, all on such terms and otherwise as
contemplated by and in conformity with the acts, proceedings and
documents referred to above.
The opinions expressed herein are limited to the laws of the
States of Washington, California, Idaho, Montana and Oregon
(excluding therefrom principles of conflicts of laws, state
securities or blue sky laws and laws of political subdivisions of
such States).
This opinion is given as of the date hereof, without any
obligation upon us to update this opinion or to advise the
addressee hereof or any other party of any changes in
circumstances or laws that may hereafter be brought to our
attention or occur which may affect this opinion.
This opinion is not being delivered for the benefit of, nor
may it be relied upon by, the holders of the Debt Securities, the
Guarantees or the Preferred Securities or any other party to
which it is not specifically addressed or to which reliance is
not expressly permitted hereby.
We hereby consent to the filing of this opinion as Exhibit
5(a) to the Registration Statement and to the references to our
firm under the heading "Legal Matters" in the prospectus which
forms a part of the Registration Statement. In giving the
foregoing consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of
the Act or the rules and regulations promulgated thereunder.
Except as expressly permitted hereby, this opinion may not be
used, delivered, circulated, filed, quoted or otherwise referred
to.
Very truly yours,
/s/ PAINE, HAMBLEN, COFFIN, BROOKE
& MILLER LLP
Exhibit 5(b) and 8
The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Ladies and Gentlemen:
We are acting as counsel to The Washington Water Power Company (the
"Company") and to Washington Water Power Capital I, Washington Water Power
Capital II and Washington Water Power Capital III (the "Trusts") in
connection with the proposed issuance of (i) Preferred Securities (the
"Preferred Securities") of the Trusts to be offered in one or more
underwritten public offerings; (ii) Junior Subordinated Deferrable Interest
Debentures (the "Debt Securities") of the Company to be issued pursuant to
the terms of an indenture from the Company to the Wilmington Trust Company,
as trustee (the "Indenture"), either to be issued and sold by the Company
to the Trusts or to be offered in one or more underwritten public
offerings; and (iii) Guarantee Agreements of the Company with respect to
the Preferred Securities (the "Guarantees") between the Company and the
Wilmington Trust Company, as trustee (the "Guarantee Agreements"). The
Preferred Securities and the Debt Securities are to be issued in a combined
aggregate liquidation amount or principal amount of up to $150,000,000, as
contemplated by the registration statement on Form S-3 proposed to be filed
by the Company and the Trusts with the Securities and Exchange Commission
on or about the date hereof for the registration of the Preferred
Securities, the Debt Securities and the Guarantees under the Securities Act
of 1933, as amended (the "Act"), said registration statement, as it may be
amended, being hereinafter called the "Registration Statement".
We have examined and are familiar with originals or copies, certified
or otherwise identified to our satisfaction, of (i) the Registration
Statement, (ii) the Indenture, and (iii) the Guarantees. We have also
examined such other documents and satisfied ourselves as to such other
matters as we have deemed necessary in order to render this opinion.
Based upon the foregoing and subject to the qualifications hereinafter
expressed, we are of the opinion that all action necessary to make valid
the proposed issuance and sale by the Company of the Debt Securities and
the Guarantees from time to time will have been taken when:
(a) the Registration Statement shall have become effective under
the Act and the Indenture and the Guarantee Agreements shall have been
qualified under the Trust Indenture Act of 1939, as amended;
(b) the Washington Utilities and Transportation Commission, the
California Public Utilities Commission, the Idaho Public Utilities
Commission and the Public Utility Commission of Oregon shall have
issued, pursuant to applications filed by the Company with said
regulatory authorities, appropriate orders authorizing the issuance
and sale by the Company of the Debt Securities and the Guarantees
(such matters having been addressed in the opinion of Paine, Hamblen,
Coffin, Brooke & Miller LLP, which is being filed as Exhibit 5(a) to
the Registration Statement);
(c) the Company's Board of Directors shall have taken such
action as may be necessary to authorize the issuance and sale by the
Company of the Debt Securities and the Guarantees on the terms set
forth or contemplated by the Registration Statement, as to be amended
or supplemented, and exhibits thereto, and to authorize such other
action as may be necessary in connection with the consummation of the
issuance and sale of the Debt Securities and the Guarantees from time
to time (such matters having been addressed in the aforesaid opinion
of Paine, Hamblen, Coffin, Brooke & Miller LLP);
(d) the Indenture and the Guarantees shall have been
appropriately executed and delivered by the Company and each of the
other parties thereto;
(e) each Debt Security shall have been appropriately executed by
the Company and appropriately authenticated by the Trustee in
accordance with the applicable provisions of the Indenture; and
(f) the specific terms of the Debt Securities and the Guarantees
shall have been determined, and such Debt Securities and Guarantees
shall have been issued and delivered by the Company to the purchasers
thereof against payment therefor, all on such terms and otherwise as
contemplated by and in conformity with, the acts, proceedings and
documents referred to above.
We are further of the opinion that, when the foregoing steps have been
taken with respect to the Debt Securities and the Guarantees, such Debt
Securities and Guarantees will be legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their
respective terms, except to the extent that enforcement of thereof may be
limited by any applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws affecting creditors' rights
generally, by general principles of equity (whether asserted in an action
in equity or at law) and by rules of law governing specific performance,
injunctive relief, foreclosure, receivership and other equitable remedies.
We are further of the opinion that the statements contained in the
preliminary prospectus supplement constituting a part of the Registration
Statement under the caption "Certain United States Federal Income Tax
Considerations" describing certain federal income tax consequences to
holders of the Preferred Securities and the Debt Securities, as qualified
therein, constitute an accurate description, in general terms, of the
indicated United States federal tax consequences to such holders.
The opinions expressed herein are limited to the laws of the State of
New York and the federal law of the United States (excluding therefrom
principles of conflicts of laws, state securities or blue sky laws). To
the extent that such opinions relate to or are dependent upon matters
governed by the laws of other States, we have assumed the legal conclusions
set forth in the opinion of Paine, Hamblen, Coffin, Brooke & Miller LLP,
which is being filed as Exhibit 5(a) to the Registration Statement.
This letter is not being delivered for the benefit of, nor may it be
relied upon by, the holders of the Debt Securities, the Guarantees or the
Preferred Securities or any other party to which it is not specifically
addressed or to which reliance is not expressly permitted hereby.
We hereby consent to the filing of this opinion as Exhibits 5(b) and 8
to the Registration Statement and to the references to our firm in the
Registration Statement.
Very truly yours,
/s/ Reid & Priest LLP
---------------------
REID & PRIEST LLP
EXHIBIT 5(c)
Richards Layton & Finger
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
November 18, 1996
Washington Water Power Capital I
Washington Water Power Capital II
Washington Water Power Capital III
c/o The Washington Water Power Company
1411 East Mission Avenue
Spokane, Washington 99202
Re: Washington Water Power Capital I
Washington Water Power Capital II
Washington Water Power Capital III
----------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for The
Washington Water Power Company, a Washington corporation (the
"Company"), Washington Water Power Capital I, Washington Water
Power Capital II and Washington Water Power Capital III, each a
Delaware business trust (the "Trusts"), in connection with the
matters set forth herein. At your request, this opinion is being
furnished to you.
For purposes of giving the opinions hereinafter set
forth, our examination of documents has been limited to the
examination of originals or copies of the following:
(a) The Certificate of Trust of each of the Trusts,
each dated as of November 4, 1996 (the "Certificates"), each as
filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on November 4, 1996;
(b) The Declaration of Trust of each of the Trusts,
each dated as of November 4, 1996, among the Company, as Sponsor,
and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus and
preliminary prospectus supplement (the "Prospectus") relating to
the Trust Originated Preferred Securities of each of the Trusts
each representing preferred undivided beneficial interests in the
assets of the respective Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as proposed to be
filed by the Company and the Trusts as set forth therein with the
Securities and Exchange Commission on or about November 18, 1996;
(d) A form of Amended and Restated Declaration of
Trust of each of the Trusts, each to be entered into among the
Company, as Sponsor, the trustees of the Trust named therein, and
the holders, from time to time, of undivided beneficial interests
in the assets of such Trust (including Annex A and Exhibits A-1
and A-2 thereto) (the "Declarations"), attached as exhibits to
the Registration Statements; and
(e) A Certificates of Good Standing for each of the
Trusts, each dated November 5, 1996, obtained from the Secretary
of State.
Initially capitalized terms used herein and not
otherwise defined are used as defined in the respective
Declaration.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a)
through (e) above. In particular, we have not reviewed any
document (other than the documents listed in paragraphs (a)
through (e) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not
reviewed that is inconsistent with the opinions stated herein.
We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the
statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed
to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as
authentic originals, (ii) the conformity with the originals of
all documents submitted to us as copies or forms, and (iii) the
genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that
the Declarations and the Certificates are in full force and
effect and have not been amended, (ii) except to the extent
provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents
examined by us under the laws of the jurisdiction governing its
creation, organization or formation, (iii) the legal capacity of
natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has
the power and authority to execute and deliver, and to perform
its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents
examined by us, (vi) the receipt by each Person to whom a
Preferred Security is to be issued by the respective Trust
(collectively, the "Preferred Security Holders") of a Preferred
Securities Certificate for such Preferred Security and the
payment for the Preferred Security acquired by it, in accordance
with the respective Declaration and the Registration Statement,
and (vii) that the Preferred Securities are issued and sold to
the Preferred Security Holders in accordance with the respective
Declaration and the Registration Statement. We have not
participated in the preparation of the Registration Statements
and assume no responsibility for their contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion on
the laws of any other jurisdiction, including federal laws and
rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of
such questions of law and statutes of the State of Delaware as we
have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
1. Each Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act.
2. The Preferred Securities will represent valid and,
subject to the qualifications set forth in paragraph 3 below,
fully paid and nonassessable undivided beneficial interests in
the assets of the respective Trust.
3. The Preferred Security Holders, as beneficial
owners of the respective Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the
Preferred Security Holders may be obligated to make payments as
set forth in the respective Declaration.
We consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the
Registration Statements. In addition, we hereby consent to the
use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons whose consent
is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and
Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or
quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
Exhibit 25(a)-1
Registration Nos.
- ----------------------------------------------------------------
- ----------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
THE WASHINGTON WATER POWER COMPANY
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer identification no.)
1411 East Mission Avenue
Spokane, Washington 99202
(Address of principal executive offices) (Zip Code)
The Washington Water Power Company Subordinated Debt Securities
(Title of the indenture securities)
- ----------------------------------------------------------------
- ----------------------------------------------------------------
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe
each affiliation:
Based upon an examination of the books and records of
the trustee and upon information furnished by the
obligor, the obligor is not an affiliate of the
trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement
of Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington
Trust Company to commence business and the
authorization of Wilmington Trust Company to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington
Trust Company.
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, Wilmington Trust Company, a
corporation organized and existing under the laws of Delaware,
has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the
City of Wilmington and State of Delaware on the 18th day of
November, 1996.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ Christopher L. Kaiser By:/s/ Norma P. Closs
------------------------- ------------------
Assistant Secretary Name: Norma P. Closs
Title: Vice President
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act
of the General Assembly of the State of Delaware, entitled "An
Act to Incorporate the Delaware Guarantee and Trust Company",
approved March 2, A.D. 1901, and the name of which company was
changed to "WILMINGTON TRUST COMPANY" by an amendment filed in
the Office of the Secretary of State on March 18, A.D. 1903, and
the Charter or Act of Incorporation of which company has been
from time to time amended and changed by merger agreements
pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend
its Charter or Act of Incorporation so that the same as so
altered and amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST
COMPANY.
SECOND: - The location of its principal office in the State
of Delaware is at Rodney Square North, in the City of
Wilmington, County of New Castle; the name of its resident
agent is WILMINGTON TRUST COMPANY whose address is Rodney
Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch
offices in the City of Newark, New Castle County, Delaware,
the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New
Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open,
maintain and operate branch offices at Ninth and Shipley
Streets, 418 Delaware Avenue, 2120 Market Street, and 3605
Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the
agency or agencies of the government of the State of
Delaware empowered to confer such authority.
Third: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on
by this Corporation are to do any or all of the things
herein mentioned as fully and to the same extent as natural
persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any
Court of law or equity and to make and use a common
seal, and alter the seal at pleasure, to hold,
purchase, convey, mortgage or otherwise deal in real
and personal estate and property, and to appoint such
officers and agents as the business of the Corporation
shall require, to make by-laws not inconsistent with
the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences
of debt, to receive deposits of money, or securities
for money, to buy gold and silver bullion and foreign
coins, to buy and sell bills of exchange, and generally
to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation
which are proper or necessary for the transaction of
the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or
any estate or interests therein, and to guarantee the
holder of such property, real or personal, against any
claim or claims, adverse to his interest therein, and
to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management
of funds, and the purchase, sale, management and
disposal of property of all descriptions, and to
prepare and execute all papers which may be necessary
or proper in such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers
of every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money,
jewelry, plate, deeds, bonds and any and all other
personal property of every sort and kind, from
executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and
individuals, and from all corporations whether state,
municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking
fund therefor on such terms as may be agreed upon
between the two parties, and in like manner may act as
Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust,
mortgage, bond or other instrument issued by any state,
municipality, body politic, corporation, association or
person, either alone or in conjunction with any other
person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect
of any contract or agreement, and the fidelity of
persons holding places of responsibility or trust; to
become surety for any person, or persons, for the
faithful performance of any trust, office, duty,
contract or agreement, either by itself or in
conjunction with any other person, or persons,
corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any
court of record within the State of Delaware or
elsewhere, or which may now or hereafter be required by
any law, judge, officer or court in the State of
Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and
all estates and property, real, personal or mixed, and
to be appointed as such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the
State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any
other trust capacity, it shall not be required to give
bond with surety, but its capital stock shall be taken
and held as security for the performance of the duties
devolving upon it by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake
or be called upon to perform, or for the assumption of
any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds,
mortgages, debentures, shares of capital stock, and
other securities, obligations, contracts and evidences
of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware,
or of the Government of the United States, or of any
state, territory, colony, or possession thereof, or of
any foreign government or country; to receive, collect,
receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in
respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and
other property, any and all the rights, powers and
privileges of individual owners thereof, including the
right to vote thereon; to invest and deal in and with
any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by
pledges or deeds of trust or mortgages of or upon the
whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and
when the Board of Directors shall determine, and in the
promotion of its said corporate business of investment
and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any
name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have
the following powers:
(1) To do any or all of the things herein set forth,
to the same extent as natural persons might or could
do, and in any part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of
the assets and liabilities of any person, firm,
association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to
hold or in any manner to dispose of the whole or any
part of the property so purchased; to conduct in any
lawful manner the whole or any part of any business so
acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of
such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out
contracts of every kind with any person, firm,
association or corporation, and, without limit as to
amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other
negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or
any of its operations and businesses, without
restriction to the same extent as natural persons might
or could do, to purchase or otherwise acquire, to hold,
own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and
description, in any State, District, Territory or
Colony of the United States, and in any foreign country
or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this
paragraph shall (except where otherwise expressed in
said paragraph) be nowise limited or restricted by
reference to or inference from the terms of any other
clause of this or any other paragraph in this charter,
but that the objects, purposes and powers specified in
each of the clauses of this paragraph shall be regarded
as independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of
stock which the Corporation shall have authority to issue is
forty-one million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock,
par value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock,
par value $1.00 per share (hereinafter referred to as
"Common Stock").
(b) Shares of Preferred Stock may be issued from time to
time in one or more series as may from time to time be
determined by the Board of Directors each of said series to
be distinctly designated. All shares of any one series of
Preferred Stock shall be alike in every particular, except
that there may be different dates from which dividends, if
any, thereon shall be cumulative, if made cumulative. The
voting powers and the preferences and relative,
participating, optional and other special rights of each
such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any
and all other series at any time outstanding; and, subject
to the provisions of subparagraph 1 of Paragraph (c) of this
Article FOURTH, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a
particular series of Preferred Stock, the voting powers and
the designations, preferences and relative, optional and
other special rights, and the qualifications, limitations
and restrictions of such series, including, but without
limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or
decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of
the Board of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred
Stock of such series shall be paid, the extent of the
preference or relation, if any, of such dividends to
the dividends payable on any other class or classes, or
series of the same or other class of stock and whether
such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred
Stock of such series to convert the same into or
exchange the same for, shares of any other class or
classes or of any series of the same or any other class
or classes of stock of the Corporation and the terms
and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series
shall be subject to redemption, and the redemption
price or prices and the time or times at which, and the
terms and conditions on which, Preferred Stock of such
series may be redeemed.
(5) The rights, if any, of the holders of Preferred
Stock of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or
sale of assets, dissolution or winding-up, of the
Corporation.
(6) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the
Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting
the generality of the foregoing include the right,
voting as a series or by itself or together with other
series of Preferred Stock or all series of Preferred
Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the
payment of dividends on any one or more series of
Preferred Stock or under such circumstances and on such
conditions as the Board of Directors may determine.
(c) (1) After the requirements with respect to
preferential dividends on the Preferred Stock (fixed in
accordance with the provisions of section (b) of this
Article FOURTH), if any, shall have been met and after the
Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking
funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this
Article FOURTH), and subject further to any conditions which
may be fixed in accordance with the provisions of section
(b) of this Article FOURTH, then and not otherwise the
holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board
of Directors.
(2) After distribution in full of the preferential
amount, if any, (fixed in accordance with the
provisions of section (b) of this Article FOURTH), to
be distributed to the holders of Preferred Stock in the
event of voluntary or involuntary liquidation,
distribution or sale of assets, dissolution or winding-
up, of the Corporation, the holders of the Common Stock
shall be entitled to receive all of the remaining
assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to
stockholders ratably in proportion to the number of
shares of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by
the provisions of such resolution or resolutions as may
be adopted by the Board of Directors pursuant to
section (b) of this Article FOURTH, each holder of
Common Stock shall have one vote in respect of each
share of Common Stock held on all matters voted upon by
the stockholders.
(d) No holder of any of the shares of any class or series
of stock or of options, warrants or other rights to purchase
shares of any class or series of stock or of other
securities of the Corporation shall have any preemptive
right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or
series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures
or other securities convertible into or exchangeable for
stock of the Corporation of any class or series, or carrying
any right to purchase stock of any class or series, but any
such unissued stock, additional authorized issue of shares
of any class or series of stock or securities convertible
into or exchangeable for stock, or carrying any right to
purchase stock, may be issued and disposed of pursuant to
resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or
others, and upon such terms as may be deemed advisable by
the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each
series of Preferred Stock in relation to the relative
powers, preferences and rights of each other series of
Preferred Stock shall, in each case, be as fixed from time
to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section
(b) of this Article FOURTH and the consent, by class or
series vote or otherwise, of the holders of such of the
series of Preferred Stock as are from time to time
outstanding shall not be required for the issuance by the
Board of Directors of any other series of Preferred Stock
whether or not the powers, preferences and rights of such
other series shall be fixed by the Board of Directors as
senior to, or on a parity with, the powers, preferences and
rights of such outstanding series, or any of them; provided,
however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred
Stock adopted pursuant to section (b) of this Article FOURTH
that the consent of the holders of a majority (or such
greater proportion as shall be therein fixed) of the
outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of
Preferred Stock.
(f) Subject to the provisions of section (e), shares of any
series of Preferred Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine
and on such terms and for such consideration as shall be
fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time
as the Board of Directors of the Corporation shall determine
and on such terms and for such consideration as shall be
fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be
increased or decreased from time to time by the affirmative
vote of the holders of a majority of the stock of the
Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation
shall be conducted and managed by a Board of Directors. The
number of directors constituting the entire Board shall be
not less than five nor more than twenty-five as fixed from
time to time by vote of a majority of the whole Board,
provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the
time in office, and provided further, that the number of
directors constituting the whole Board shall be twenty-four
until otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three
classes, as nearly equal in number as the then total number
of directors constituting the whole Board permits, with the
term of office of one class expiring each year. At the
annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term
expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term
expiring at the second succeeding annual meeting and
directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting.
Any vacancies in the Board of Directors for any reason, and
any newly created directorships resulting from any increase
in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office,
although less than a quorum, and any directors so chosen
shall hold office until the next annual election of
directors. At such election, the stockholders shall elect a
successor to such director to hold office until the next
election of the class for which such director shall have
been chosen and until his successor shall be elected and
qualified. No decrease in the number of directors shall
shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or
the By-Laws of the Corporation), any director or the entire
Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative vote of the
holders of two-thirds or more of the outstanding shares of
capital stock of the Corporation entitled to vote generally
in the election of directors (considered for this purpose as
one class) cast at a meeting of the stockholders called for
that purpose.
(d) Nominations for the election of directors may be made
by the Board of Directors or by any stockholder entitled to
vote for the election of directors. Such nominations shall
be made by notice in writing, delivered or mailed by first
class United States mail, postage prepaid, to the Secretary
of the Corporation not less than 14 days nor more than 50
days prior to any meeting of the stockholders called for the
election of directors; provided, however, that if less than
21 days' notice of the meeting is given to stockholders,
such written notice shall be delivered or mailed, as
prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which
notice of the meeting was mailed to stockholders. Notice of
nominations which are proposed by the Board of Directors
shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i)
the name, age, business address and, if known, residence
address of each nominee proposed in such notice, (ii) the
principal occupation or employment of such nominee and (iii)
the number of shares of stock of the Corporation which are
beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was
not made in accordance with the foregoing procedure, and if
he should so determine, he shall so declare to the meeting
and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at
any annual or special meeting of stockholders of the
Corporation may be taken without a meeting, and the power of
stockholders to consent in writing, without a meeting, to
the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from
time to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given
the same powers, rights and privileges as may be conferred
upon corporations organized under the Act entitled "An Act
Providing a General Corporation Law", approved March 10,
1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private
Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their
number to constitute an Executive Committee, which
Committee, to the extent provided in said resolution, or in
the By-Laws of the Company, shall have and may exercise all
of the powers of the Board of Directors in the management of
the business and affairs of the Corporation, and shall have
power to authorize the seal of the Corporation to be affixed
to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall
not be liable for the payment of corporate debts to any
extent whatever.
TWELFTH: - The Corporation may transact business in any part
of the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of
the Corporation by a vote of the majority of the entire
Board. The stockholders may make, alter or repeal any By-
Law whether or not adopted by them, provided however, that
any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-
thirds or more of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election
of directors (considered for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time
to time designated by the Board, and the Directors may keep
the books of the Company outside of the State of Delaware at
such places as may be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote
required by law, and except as otherwise expressly provided
in sections (b) and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or
any Subsidiary (as hereinafter defined) with or into
(i) any Interested Stockholder (as hereinafter defined)
or (ii) any other corporation (whether or not itself an
Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter
defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a
series of related transactions) to or with any
Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation
or any Subsidiary having an aggregate fair market value
of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or
any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for
cash, securities or other property (or a combination
thereof) having an aggregate fair market value of
$1,000,000 or more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder, or any
Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least
two-thirds of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors, considered for the purpose of this Article FIFTEENTH
as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required,
or that some lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.
(2) The term "business combination" as used in
this Article FIFTEENTH shall mean any transaction
which is referred to any one or more of clauses
(A) through (E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article
FIFTEENTH shall not be applicable to any particular
business combination and such business combination
shall require only such affirmative vote as is required
by law and any other provisions of the Charter or Act
of Incorporation of By-Laws if such business
combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation
or other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation
or any Subsidiary) who or which as of the record date for
the determination of stockholders entitled to notice of and
to vote on such business combination, or immediately prior
to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly,
of more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial
owner, directly or indirectly, of not less than 10% of
the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in
any share of capital stock of the Corporation which
were at any time within two years prior thereto
beneficially owned by any Interested Stockholder, and
such assignment or succession shall have occurred in
the course of a transaction or series of transactions
not involving a public offering within the meaning of
the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting
Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own,
directly or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or
options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or
indirectly, by any other person with which such first
mentioned person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of
any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares
deemed owned through application of paragraph (3) above but
shall not include any other Voting Shares which may be
issuable pursuant to any agreement, or upon exercise of
conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of
1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a
majority of any class of equity security (as defined in Rule
3a11-1 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect in December
31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph
(2) of this section (c), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and
duty to determine for the purposes of this Article
FIFTEENTH on the basis of information known to them,
(1) the number of Voting Shares beneficially owned by
any person (2) whether a person is an Affiliate or
Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as
to the matters referred to in paragraph (3) of section
(c), or (4) whether the assets subject to any business
combination or the consideration received for the
issuance or transfer of securities by the Corporation,
or any Subsidiary has an aggregate fair market value of
$1,00,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall
be construed to relieve any Interested Stockholder from
any fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this
Charter or Act of Incorporation or the By-Laws of the
Corporation (and in addition to any other vote that may be
required by law, this Charter or Act of Incorporation by the
By-Laws), the affirmative vote of the holders of at least
two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election
of directors (considered for this purpose as one class)
shall be required to amend, alter or repeal any provision of
Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this
Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not
be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a Director,
except to the extent such exemption from liability or
limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter
be amended.
(b) Any repeal or modification of the foregoing
paragraph shall not adversely affect any right or
protection of a Director of the Corporation existing
hereunder with respect to any act or omission occurring
prior to the time of such repeal or modification."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON FEBRUARY 21, 1991
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETING
Section 1. The Annual Meeting of Stockholders shall be held
on the third Thursday in April each year at the principal office
at the Company or at such other date, time, or place as may be
designated by resolution by the Board of Directors.
Section 2. Special meetings of all stockholders may be
called at any time by the Board of Directors, the Chairman of the
Board or the President.
Section 3. Notice of all meetings of the stockholders shall
be given by mailing to each stockholder at least ten (10 days
before said meeting, at his last known address, a written or
printed notice fixing the time and place of such meeting.
Section 4. A majority in the amount of the capital stock of
the Company issued and outstanding on the record date, as herein
determined, shall constitute a quorum at all meetings of
stockholders for the transaction of any business, but the holders
of a small number of shares may adjourn, from time to time,
without further notice, until a quorum is secured. At each
annual or special meeting of stockholders, each stockholder shall
be entitled to one vote, either in person or by proxy, for each
shares of stock registered in the stockholder's name on the books
of the Company on the record date for any such meeting as
determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of
Directors shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-
two (72) years shall be nominated for election to the Board of
Directors of the Company, provided, however, that this limitation
shall not apply to any person who was serving as director of the
Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold
office for three years or until their successors are elected and
qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. Regular meetings of the Board of Directors shall
be held on the third Thursday of each month at the principal
office of the Company, or at such other place and time as may be
designated by the Board of Directors, the Chairman of the Board,
or the President.
Section 6. Special meetings of the Board of Directors may
be called at any time by the Chairman of the Board of Directors
or by the President, and shall be called upon the written request
of a majority of the directors.
Section 7. A majority of the directors elected and
qualified shall be necessary to constitute a quorum for the
transaction of business at any meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each
director of any special meeting of the Board of Directors, and of
any change in the time or place of any regular meeting, stating
the time and place of such meeting, which shall be mailed not
less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board
of Directors, although less than a quorum, shall have the right
to elect the successor who shall hold office for the remainder of
the full term of the class of directors in which the vacancy
occurred, and until such director's successor shall have been
duly elected and qualified.
Section 10. The Board of Directors at its first meeting
after its election by the stockholders shall appoint an Executive
Committee, a Trust Committee, an Audit Committee and a
Compensation Committee, and shall elect from its own members a
Chairman of the Board of Directors and a President who may be the
same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person,
may appoint at any time such other committees and elect or
appoint such other officers as it may deem advisable. The Board
of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove,
with or without cause, any member of any Committee appointed by
it or any associate director or officer elected by it and may
appoint or elect his successor.
Section 12. The Board of Directors may designate an officer
to be in charge of such of the departments or division of the
Company as it may deem advisable.
ARTICLE III
COMMITTEES
Section I. Executive Committee
(A) The Executive Committee shall be composed
of not more than nine members who shall be selected by the Board
of Directors from its own members and who shall hold office
during the pleasure of the Board.
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to
transact all business for and in behalf of the Company that may
be brought before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at
least once a week in each week the Board is not regularly
scheduled to meet. A majority of its members shall be necessary
to constitute a quorum for the transaction of business. Special
meetings of the Executive Committee may be held at any time when
a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors
at its next meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the
Company, and shall direct the disposal of the same, in accordance
with such rules and regulations as the Board of Directors from
time to time make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the
affairs and business of the Company by its directors and officers
as contemplated by these By-Laws any two available members of the
Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company
in accordance with the provisions of Article III of these By-
Laws; and if less than three members of the Trust Committee is
constituted immediately prior to such disaster shall be available
for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to
the Trust Committee under Article III Section 2 hereof. In the
event of the unavailability, at such time, of a minimum of two
members of such Executive Committee, any three available
directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company
in accordance with the foregoing provisions of this Section.
This By-Law shall be subject to implementation by Resolutions of
the Board of Directors presently existing or hereafter passed
from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are
contrary to the provisions of this Section or to the provisions
of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct
and management of its affairs and business under all of the other
provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of
not more than thirteen members who shall be selected by the Board
of Directors, a majority of whom shall be members of the Board of
Directors and who shall hold office during the pleasure of the
Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust
funds, in all matters, however, being subject to the approval of
the Board of Directors.
(C) The Trust Committee shall meet at the
principal office of the Company or elsewhere in its discretion at
least once a month. A majority of its members shall be necessary
to constitute a quorum for the transaction of business. Special
meetings of the Trust Committee may be held at any time when a
quorum is present.
(D) Minutes of each meeting of the Trust
Committee shall be kept and promptly submitted to the Board of
Directors.
(E) The Trust Committee shall have the power to
appoint Committees and/or designate officers or employees of the
Company to whom supervision over the investment of trust funds
may be delegated when the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of
five members who shall be selected by the Board of Directors from
its own members, none of whom shall be an officer of the Company,
and shall hold office at the pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however
subject to the approval of the Board of Directors; it shall
consider all matters brought to its attention by the officer in
charge of the Audit Division, review all reports of examination
of the Company made by any governmental agency or such
independent auditor employed for that purpose, and make such
recommendations to the Board of Directors with respect thereto or
with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and
wherever the majority of its members shall deem it to be proper
for the transaction of its business, and a majority of its
Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be
composed of not more than five (5) members who shall be selected
by the Board of Directors from its own members who are not
officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general
advise upon all matters of policy concerning the Company brought
to its attention by the management and from time to time review
the management of the Company, major organizational matters,
including salaries and employee benefits and specifically shall
administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may
be called at any time by the Chairman of the Compensation
Committee, the Chairman of the Board of Directors, or the
President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may
be elected by the Board of Directors as an associate director, to
serve during the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion
of all matters brought to the Board, with the exception that he
would have no right to vote. An associate director will be
eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active
directors.
Section 6. Absence or Disqualification of Any Member of a
Committee
(A) In the absence or disqualification of any
member of any Committee created under Article III of the By-Laws
of this Company, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in the place of
any such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall
preside at all meetings of the Board and shall have such further
authority and powers and shall perform such duties as the Board
of Directors may from time to time confer and direct. He shall
also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of
the Company.
Section 2. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed
upon him by statute or assigned to him by the Board of Directors
in the absence of the Chairman of the Board the President shall
have the powers and duties of the Chairman of the Board.
Section 3. The Chairman of the Board of Directors or the
President as designated by the Board of Directors, shall carry
into effect all legal directions of the Executive Committee and
of the Board of Directors, and shall at all times exercise
general supervision over the interest, affairs and operations of
the Company and perform all duties incident to his office.
Section 4. There may be one or more Vice Presidents,
however denominated by the Board of Directors, who may at any
time perform all the duties of the Chairman of the Board of
Directors and/or the President and such other powers and duties
as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or
the President and by the officer in charge of the department or
division to which they are assigned.
Section 5. The Secretary shall attend to the giving of
notice of meetings of the stockholders and the Board of
Directors, as well as the Committees thereof, to the keeping of
accurate minutes of all such meetings and to recording the same
in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and
mailed well in advance of the scheduled date of any other
meeting. He shall have custody of the corporate seal and shall
affix the same to any documents requiring such corporate seal and
to attest the same.
Section 6. The Treasurer shall have general supervision
over all assets and liabilities of the Company. He shall be
custodian of and responsible for all monies, funds and valuables
of the Company and for the keeping of proper records of the
evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the
expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the
Company, and perform such other duties as may be assigned to him
from time to time by the Board of Directors of the Executive
Committee.
Section 7. There may be a Controller who shall exercise
general supervision over the internal operations of the Company,
including accounting, and shall render to the Board of Directors
at appropriate times a report relating to the general condition
and internal operations of the Company.
There may be one or more subordinate accounting or
controller officers however denominated, who may perform the
duties of the Controller and such duties as may be prescribed by
the Controller.
Section 8. The officer designated by the Board of Directors
to be in charge of the Audit Division of the Company with such
title as the Board of Directors shall prescribe, shall report to
and be directly responsible only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of
the Auditor and such duties as may be prescribed by the officer
in charge of the Audit Division.
Section 9. There may be one or more officers, subordinate
in rank to all Vice Presidents with such functional titles as
shall be determined from time to time by the Board of Directors,
who shall ex officio hold the office Assistant Secretary of this
Company and who may perform such duties as may be prescribed by
the officer in charge of the department or division to whom they
are assigned.
Section 10. The powers and duties of all other officers of
the Company shall be those usually pertaining to their respective
offices, subject to the direction of the Board of Directors, the
Executive Committee, Chairman of the Board of Directors or the
President and the officer in charge of the department or division
to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the
books of the Company and a transfer book shall be kept in which
all transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of
the President or any Vice President, however denominated by the
Board of Directors and countersigned by the Secretary or
Treasurer or an Assistant Secretary, and the seal of the
corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only
upon the books of the Company by the holder thereof or his
attorney, upon surrender of the certificate properly endorsed.
Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate
certificates of stock shall be issued only upon giving such
security as may be satisfactory to the Board of Directors or the
Executive Committee.
Section 3. The Board of Directors of the Company is
authorized to fix in advance a record date for the determination
of the stockholders entitled to notice of, and to vote at, any
meeting of stockholders and any adjournment thereof, or entitled
to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change,
conversion or exchange of capital stock, or in connection with
obtaining the consent of stockholders for any purpose, which
record date shall not be more than 60 nor less than 10 days
proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in
the following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the
calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any
Vice President, however denominated by the Board of Directors,
shall have full power and authority to enter into, make, sign,
execute, acknowledge and/or deliver and the Secretary or any
Assistant Secretary shall have full power and authority to attest
and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds,
notes, mortgages and all other instruments incident to the
business of this Company or in acting as executor, administrator,
guardian, trustee, agent or in any other fiduciary or
representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in
the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of
Directors or the Executive Committee, and any and all such
instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the
Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the
Company, other than salaried officers of the Company, shall be
paid such reasonable honoraria or fees for attending meetings of
the Board of Directors as the Board of Directors may from time to
time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for
services as members of committees as the Board of Directors shall
from time to time determine and directors and associate directors
may be employed by the Company for such special services as the
Board of Directors may from time to time determine and shall be
paid for such special services so performed reasonable
compensation as may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was
or is made or is threatened to be made a party or is otherwise
involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent
of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee, fiduciary or agent
of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect
to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The
Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses
incurred in defending any proceeding in advance of its final
disposition, provided, however, that the payment of expenses
-------- -------
incurred by a Director officer in his capacity as a Director or
officer in advance of the final disposition of the proceeding
shall be made only upon receipt of an undertaking by the Director
or officer to repay all amounts advanced if it should be
ultimately determined that the Director or officer is not
entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment
of expenses, under this Article X is not paid in full within
ninety days after a written claim therefor has been received by
the Corporation the claimant may file suit to recover the unpaid
amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such
claim. In any such action the Corporation shall have the burden
of proving that the claimant was not entitled to the requested
indemnification of payment of expenses under applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision
of the Charter or Act of Incorporation, these By-Laws, agreement,
vote of stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right
or protection hereunder of any person in respect of any act or
omission occurring prior to the time of such repeal or
modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or
repealed, in whole or in part, and any new By-Law or By-Laws
adopted at any regular or special meeting of the Board of
Directors by a vote of the majority of all the members of the
Board of Directors then in office.
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of
1939, as amended, Wilmington Trust Company hereby consents that
reports of examinations by Federal, State, Territorial or
District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: November 18, 1996 By: /s/ Norma P. Closs
------------------
Name: Norma P. Closs
Title: Vice President
EXHIBIT D
NOTICE
This form is intended to assist state
nonmember banks and savings banks with state
publication requirements. It has not been
approved by any state banking authorities.
Refer to your appropriate state banking
authorities for your state publication
requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ------------------------------------ -------------------
Name of Bank City
in the State of DELAWARE , at the close of business on
------------
September 30, 1996.
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins.198,288
Interest-bearing balances. . . . . . . . . . . . . . . . 0
Held-to-maturity securities. . . . . . . . . . . . . . . 489,428
Available-for-sale securities. . . . . . . . . . . . . . .783,718
Federal funds sold . . . . . . . . . . . . . . . . . . . . 19,000
Securities purchased under agreements to resell. . . . . . 48,500
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . 3,620,289
LESS: Allowance for loan and lease losses . . . . . 49,721
LESS: Allocated transfer risk reserve . . . . . . . . . .0
Loans and leases, net of unearned income, allowance, and
reserve . . . . . . . . . . . . . . . . . . .3,570,568
Assets held in trading accounts. . . . . . . . . . . . . . . . .0
Premises and fixed assets (including capitalized leases) . 83,675
Other real estate owned. . . . . . . . . . . . . . . . . . 4,607
Investments in unconsolidated subsidiaries and
associated companies . . . . . . . . . . . . . . . . .. 85
Customers' liability to this bank on acceptances outstanding . .0
Intangible assets. . . . . . . . . . . . . . . . . . . . . .4,131
Other assets . . . . . . . . . . . . . . . . . . . . . . .101,592
Total assets . . . . . . . . . . . . . . . . . . . . . .5,303,592
CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . .3,457,641
Noninterest-bearing . . . . . . . . .740,731
Interest-bearing . . . . . . . . . .2,716,910
Federal funds purchased . . . . . . . . . . . . . . . . .135,889
Securities sold under agreements to repurchase . . . . . 213,617
Demand notes issued to the U.S. Treasury . . . . . . . . . 94,999
Trading liabilities. . . . . . . . . . . . . . . . . . . . . . .0
Other borrowed money:. . . . . . . . . . . . . . . . . . .///////
With original maturity of one year or less . . . . .844,000
With original maturity of more than one year . . . . 28,000
Mortgage indebtedness and obligations under capitalized leases 0
Bank's liability on acceptances executed and outstanding . . . .0
Subordinated notes and debentures. . . . . . . . . . . . . . . .0
Other liabilities. . . . . . . . . . . . . . . . . . . . 103,818
Total liabilities. . . . . . . . . . . . . . . . . . . .4,877,964
Limited-life preferred stock and related surplus . . . . . . . .0
EQUITY CAPITAL
Perpetual preferred stock and related surplus. . . . . . . . . .0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . .500
Surplus. . . . . . . . . . . . . . . . . . . . . . . . . . 62,119
Undivided profits and capital reserves . . . . . . . . . .363,705
Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . (696)
Total equity capital . . . . . . . . . . . . . . . . . . .425,628
Total liabilities, limited-life preferred stock,
and equity capital . . . . . . . . . . . . . . . .5,303,592
EXHIBIT 25(a)-2
Registration Nos.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
----
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer
identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
THE WASHINGTON WATER POWER COMPANY
WASHINGTON WATER POWER CAPITAL I
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer identification no.)
1411 East Mission Avenue
Spokane, Washington 99202
(Address of principal executive offices) (Zip Code)
Washington Water Power Capital I Trust Originated Preferred Securities
(Title of the indenture securities)
---------------------------------------------------------------------------
---------------------------------------------------------------------------
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, Wilmington Trust Company, a corporation
organized and existing under the laws of Delaware, has duly caused this
Statement of Eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Wilmington and State of
Delaware on the 18th day of November, 1996.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ Christopher L. Kaiser By:/s/ Norma P. Closs
------------------------- -----------------------
Assistant Secretary Name: Norma P. Closs
Title: Vice President
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of
the General Assembly of the State of Delaware, entitled "An Act to
Incorporate the Delaware Guarantee and Trust Company", approved March 2,
A.D. 1901, and the name of which company was changed to "WILMINGTON TRUST
COMPANY" by an amendment filed in the Office of the Secretary of State on
March 18, A.D. 1903, and the Charter or Act of Incorporation of which
company has been from time to time amended and changed by merger agreements
pursuant to the corporation law for state banks and trust companies of the
State of Delaware, does hereby alter and amend its Charter or Act of
Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST
COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is
WILMINGTON TRUST COMPANY whose address is Rodney Square North,
in said City. In addition to such principal office, the said
corporation maintains and operates branch offices in the City
of Newark, New Castle County, Delaware, the Town of Newport,
New Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at
Milford Cross Roads, New Castle County, Delaware, and shall be
empowered to open, maintain and operate branch offices at Ninth
and Shipley Streets, 418 Delaware Avenue, 2120 Market Street,
and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or
places of business as may be authorized from time to time by
the agency or agencies of the government of the State of
Delaware empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by
this Corporation are to do any or all of the things herein
mentioned as fully and to the same extent as natural persons
might or could do and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court
of law or equity and to make and use a common seal, and
alter the seal at pleasure, to hold, purchase, convey,
mortgage or otherwise deal in real and personal estate and
property, and to appoint such officers and agents as the
business of the Corporation shall require, to make by-laws
not inconsistent with the Constitution or laws of the
United States or of this State, to discount bills, notes or
other evidences of debt, to receive deposits of money, or
securities for money, to buy gold and silver bullion and
foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers,
rights, privileges and franchises incident to a corporation
which are proper or necessary for the transaction of the
business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or
claims, adverse to his interest therein, and to prepare and
give certificates of title for any lands or premises in the
State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute
all papers which may be necessary or proper in such
business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money,
jewelry, plate, deeds, bonds and any and all other personal
property of every sort and kind, from executors,
administrators, guardians, public officers, courts,
receivers, assignees, trustees, and from all fiduciaries,
and from all other persons and individuals, and from all
corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state, municipality,
body politic, corporation, association or person, either
alone or in conjunction with any other person or persons,
corporation or corporations.
(8) To guarantee the validity, performance or effect of
any contract or agreement, and the fidelity of persons
holding places of responsibility or trust; to become surety
for any person, or persons, for the faithful performance of
any trust, office, duty, contract or agreement, either by
itself or in conjunction with any other person, or persons,
corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment,
suit, order, or decree to be entered in any court of record
within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or
court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity in the receiving,
holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as
such trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and
whenever this Corporation is so appointed by any person,
corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or
in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken
and held as security for the performance of the duties
devolving upon it by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of
any private, public or municipal corporation within and
without the State of Delaware, or of the Government of the
United States, or of any state, territory, colony, or
possession thereof, or of any foreign government or
country; to receive, collect, receipt for, and dispose of
interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and
to exercise in respect of all such bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other
property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys
of the Corporation upon such securities and in such manner
as it may think fit and proper, and from time to time to
vary or realize such investments; to issue bonds and secure
the same by pledges or deeds of trust or mortgages of or
upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and
when the Board of Directors shall determine, and in the
promotion of its said corporate business of investment and
to the extent authorized by law, to lease, purchase, hold,
sell, assign, transfer, pledge, mortgage and convey real
and personal property of any name and nature and any estate
or interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have
the following powers:
(1) To do any or all of the things herein set forth, to
the same extent as natural persons might or could do, and
in any part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of this
Corporation, bonds or otherwise; to hold or in any manner
to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any
part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts
of every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw,
make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of
its operations and businesses, without restriction to the
same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said paragraph)
be nowise limited or restricted by reference to or
inference from the terms of any other clause of this or any
other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects,
purposes and powers.
FOURTH: - (a) The total number of shares of all classes of
stock which the Corporation shall have authority to issue is
forty-one million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time
in one or more series as may from time to time be determined by
the Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock
shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other
special rights of each such series, and the qualifications,
limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and,
subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article FOURTH, the Board of Directors of the Corporation
is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a
particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other
special rights, and the qualifications, limitations and
restrictions of such series, including, but without limiting
the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then
outstanding) from time to time by like action of the Board
of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the
same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock
of such series to convert the same into or exchange the
same for, shares of any other class or classes or of any
series of the same or any other class or classes of stock
of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices
and the time or times at which, and the terms and
conditions on which, Preferred Stock of such series may be
redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale of
assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the Preferred
Stock of such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a
class, to elect one or more directors of the Corporation if
there shall have been a default in the payment of dividends
on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any,
shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to the
setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of
section (b) of this Article FOURTH), and subject further to any
conditions which may be fixed in accordance with the provisions
of section (b) of this Article FOURTH, then and not otherwise
the holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of
Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b)
of this Article FOURTH, each holder of Common Stock shall
have one vote in respect of each share of Common Stock held
on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase
shares of any class or series of stock or of other securities
of the Corporation shall have any preemptive right to purchase
or subscribe for any unissued stock of any class or series or
any additional shares of any class or series to be issued by
reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into
or exchangeable for stock of the Corporation of any class or
series, or carrying any right to purchase stock of any class or
series, but any such unissued stock, additional authorized
issue of shares of any class or series of stock or securities
convertible into or exchangeable for stock, or carrying any
right to purchase stock, may be issued and disposed of pursuant
to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others,
and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series
of Preferred Stock in relation to the relative powers,
preferences and rights of each other series of Preferred Stock
shall, in each case, be as fixed from time to time by the Board
of Directors in the resolution or resolutions adopted pursuant
to authority granted in section (b) of this Article FOURTH and
the consent, by class or series vote or otherwise, of the
holders of such of the series of Preferred Stock as are from
time to time outstanding shall not be required for the issuance
by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such
other series shall be fixed by the Board of Directors as senior
to, or on a parity with, the powers, preferences and rights of
such outstanding series, or any of them; provided, however,
that the Board of Directors may provide in the resolution or
resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article FOURTH that the consent
of the holders of a majority (or such greater proportion as
shall be therein fixed) of the outstanding shares of such
series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any
series of Preferred Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and
on such terms and for such consideration as shall be fixed by
the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and
on such terms and for such consideration as shall be fixed by
the Board of Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be
increased or decreased from time to time by the affirmative
vote of the holders of a majority of the stock of the
Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall
be conducted and managed by a Board of Directors. The number
of directors constituting the entire Board shall be not less
than five nor more than twenty-five as fixed from time to time
by vote of a majority of the whole Board, provided, however,
that the number of directors shall not be reduced so as to
shorten the term of any director at the time in office, and
provided further, that the number of directors constituting the
whole Board shall be twenty-four until otherwise fixed by a
majority of the whole Board.
(b) The Board of Directors shall be divided into three
classes, as nearly equal in number as the then total number of
directors constituting the whole Board permits, with the term
of office of one class expiring each year. At the annual
meeting of stockholders in 1982, directors of the first class
shall be elected to hold office for a term expiring at the next
succeeding annual meeting, directors of the second class shall
be elected to hold office for a term expiring at the second
succeeding annual meeting and directors of the third class
shall be elected to hold office for a term expiring at the
third succeeding annual meeting. Any vacancies in the Board of
Directors for any reason, and any newly created directorships
resulting from any increase in the directors, may be filled by
the Board of Directors, acting by a majority of the directors
then in office, although less than a quorum, and any directors
so chosen shall hold office until the next annual election of
directors. At such election, the stockholders shall elect a
successor to such director to hold office until the next
election of the class for which such director shall have been
chosen and until his successor shall be elected and qualified.
No decrease in the number of directors shall shorten the term
of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the
By-Laws of the Corporation), any director or the entire Board
of Directors of the Corporation may be removed at any time
without cause, but only by the affirmative vote of the holders
of two-thirds or more of the outstanding shares of capital
stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one
class) cast at a meeting of the stockholders called for that
purpose.
(d) Nominations for the election of directors may be made by
the Board of Directors or by any stockholder entitled to vote
for the election of directors. Such nominations shall be made
by notice in writing, delivered or mailed by first class United
States mail, postage prepaid, to the Secretary of the
Corporation not less than 14 days nor more than 50 days prior
to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice
of the meeting is given to stockholders, such written notice
shall be delivered or mailed, as prescribed, to the Secretary
of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the
Board of Directors shall be given by the Chairman on behalf of
the Board.
(e) Each notice under subsection (d) shall set forth (i) the
name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal
occupation or employment of such nominee and (iii) the number
of shares of stock of the Corporation which are beneficially
owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at
any annual or special meeting of stockholders of the
Corporation may be taken without a meeting, and the power of
stockholders to consent in writing, without a meeting, to the
taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from
time to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the
same powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing
a General Corporation Law", approved March 10, 1899, as from
time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private
Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number
to constitute an Executive Committee, which Committee, to the
extent provided in said resolution, or in the By-Laws of the
Company, shall have and may exercise all of the powers of the
Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize
the seal of the Corporation to be affixed to all papers which
may require it.
ELEVENTH: - The private property of the stockholders shall not
be liable for the payment of corporate debts to any extent
whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of
the Corporation by a vote of the majority of the entire Board.
The stockholders may make, alter or repeal any By-Law whether
or not adopted by them, provided however, that any such
additional By-Laws, alterations or repeal may be adopted only
by the affirmative vote of the holders of two-thirds or more of
the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors
(considered for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the
books of the Company outside of the State of Delaware at such
places as may be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required
by law, and except as otherwise expressly provided in sections
(b) and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested Stockholder
or any Affiliate of any Interested Stockholder of any
assets of the Corporation or any Subsidiary having an
aggregate fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate
of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof)
having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, considered for the purpose of
this Article FIFTEENTH as one class ("Voting Shares"). Such affirmative
vote shall be required notwithstanding the fact that no vote may be
required, or that some lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which is
referred to any one or more of clauses (A) through (E) of
paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article
FIFTEENTH shall not be applicable to any particular
business combination and such business combination shall
require only such affirmative vote as is required by law
and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has
been approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote
on such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of
more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by
any Interested Stockholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a
public offering within the meaning of the Securities Act of
1933.
(3) A person shall be the "beneficial owner" of any Voting
Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own,
directly or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such right
is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned person
or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant
to any agreement, or upon exercise of conversion rights,
warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as
in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a
majority of any class of equity security (as defined in Rule
3a11-1 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect in December 31,
1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of
Investment Stockholder set forth in paragraph (2) of this
section (c), the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and
duty to determine for the purposes of this Article
FIFTEENTH on the basis of information known to them, (1)
the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate of
another, (3) whether a person has an agreement, arrangement
or understanding with another as to the matters referred to
in paragraph (3) of section (c), or (4) whether the assets
subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market
value of $1,00,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this
Charter or Act of Incorporation or the By-Laws of the
Corporation (and in addition to any other vote that may be
required by law, this Charter or Act of Incorporation by the
By-Laws), the affirmative vote of the holders of at least two-
thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be
required to amend, alter or repeal any provision of Articles
FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or
Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a Director, except to
the extent such exemption from liability or limitation thereof
is not permitted under the Delaware General Corporation Laws as
the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON FEBRUARY 21, 1991
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on
the third Thursday in April each year at the principal office at the
Company or at such other date, time, or place as may be designated by
resolution by the Board of Directors.
Section 2. Special meetings of all stockholders may be called
at any time by the Board of Directors, the Chairman of the Board or the
President.
Section 3. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10 days before said
meeting, at his last known address, a written or printed notice fixing the
time and place of such meeting.
Section 4. A majority in the amount of the capital stock of
the Company issued and outstanding on the record date, as herein
determined, shall constitute a quorum at all meetings of stockholders for
the transaction of any business, but the holders of a small number of
shares may adjourn, from time to time, without further notice, until a
quorum is secured. At each annual or special meeting of stockholders, each
stockholder shall be entitled to one vote, either in person or by proxy,
for each shares of stock registered in the stockholder's name on the books
of the Company on the record date for any such meeting as determined
herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of
Directors shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two
(72) years shall be nominated for election to the Board of Directors of the
Company, provided, however, that this limitation shall not apply to any
person who was serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office
for three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. Regular meetings of the Board of Directors shall be
held on the third Thursday of each month at the principal office of the
Company, or at such other place and time as may be designated by the Board
of Directors, the Chairman of the Board, or the President.
Section 6. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or by the
President, and shall be called upon the written request of a majority of
the directors.
Section 7. A majority of the directors elected and qualified
shall be necessary to constitute a quorum for the transaction of business
at any meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each
director of any special meeting of the Board of Directors, and of any
change in the time or place of any regular meeting, stating the time and
place of such meeting, which shall be mailed not less than two days before
the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of
Directors, although less than a quorum, shall have the right to elect the
successor who shall hold office for the remainder of the full term of the
class of directors in which the vacancy occurred, and until such director's
successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after
its election by the stockholders shall appoint an Executive Committee, a
Trust Committee, an Audit Committee and a Compensation Committee, and shall
elect from its own members a Chairman of the Board of Directors and a
President who may be the same person. The Board of Directors shall also
elect at such meeting a Secretary and a Treasurer, who may be the same
person, may appoint at any time such other committees and elect or appoint
such other officers as it may deem advisable. The Board of Directors may
also elect at such meeting one or more Associate Directors.
Section 11. The Board of Directors may at any time remove,
with or without cause, any member of any Committee appointed by it or any
associate director or officer elected by it and may appoint or elect his
successor.
Section 12. The Board of Directors may designate an officer to
be in charge of such of the departments or division of the Company as it
may deem advisable.
ARTICLE III
COMMITTEES
Section I. Executive Committee
(A) The Executive Committee shall be composed of not
more than nine members who shall be selected by the Board of Directors from
its own members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers
of the Board of Directors when it is not in session to transact all
business for and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at least
once a week in each week the Board is not regularly scheduled to meet. A
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may
be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee
shall be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the Company,
and shall direct the disposal of the same, in accordance with such rules
and regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business
of the Company by its directors and officers as contemplated by these By-
Laws any two available members of the Executive Committee as constituted
immediately prior to such disaster shall constitute a quorum of that
Committee for the full conduct and management of the affairs and business
of the Company in accordance with the provisions of Article III of these
By-Laws; and if less than three members of the Trust Committee is
constituted immediately prior to such disaster shall be available for the
transaction of its business, such Executive Committee shall also be
empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at
such time, of a minimum of two members of such Executive Committee, any
three available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company in
accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose,
and any provisions of these By-Laws (other than this Section) and any
resolutions which are contrary to the provisions of this Section or to the
provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim
Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its
affairs and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more
than thirteen members who shall be selected by the Board of Directors, a
majority of whom shall be members of the Board of Directors and who shall
hold office during the pleasure of the Board.
(B) The Trust Committee shall have general supervision
over the Trust Department and the investment of trust funds, in all
matters, however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal
office of the Company or elsewhere in its discretion at least once a month.
A majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Trust Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Trust Committee
shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to
appoint Committees and/or designate officers or employees of the Company to
whom supervision over the investment of trust funds may be delegated when
the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five
members who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer of the Company, and shall hold
office at the pleasure of the Board.
(B) The Audit Committee shall have general supervision
over the Audit Division in all matters however subject to the approval of
the Board of Directors; it shall consider all matters brought to its
attention by the officer in charge of the Audit Division, review all
reports of examination of the Company made by any governmental agency or
such independent auditor employed for that purpose, and make such
recommendations to the Board of Directors with respect thereto or with
respect to any other matters pertaining to auditing the Company as it shall
deem desirable.
(C) The Audit Committee shall meet whenever and
wherever the majority of its members shall deem it to be proper for the
transaction of its business, and a majority of its Committee shall
constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of
not more than five (5) members who shall be selected by the Board of
Directors from its own members who are not officers of the Company and who
shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in general advise
upon all matters of policy concerning the Company brought to its attention
by the management and from time to time review the management of the
Company, major organizational matters, including salaries and employee
benefits and specifically shall administer the Executive Incentive
Compensation Plan.
(C) Meetings of the Compensation Committee may be
called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be
elected by the Board of Directors as an associate director, to serve during
the pleasure of the Board.
(B) An associate director shall be entitled to attend
all directors meetings and participate in the discussion of all matters
brought to the Board, with the exception that he would have no right to
vote. An associate director will be eligible for appointment to Committees
of the Company, with the exception of the Executive Committee, Audit
Committee and Compensation Committee, which must be comprised solely of
active directors.
Section 6. Absence or Disqualification of Any Member of a
Committee
(A) In the absence or disqualification of any member
of any Committee created under Article III of the By-Laws of this Company,
the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in
the place of any such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall
preside at all meetings of the Board and shall have such further authority
and powers and shall perform such duties as the Board of Directors may from
time to time confer and direct. He shall also exercise such powers and
perform such duties as may from time to time be agreed upon between himself
and the President of the Company.
Section 2. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon him by
statute or assigned to him by the Board of Directors in the absence of the
Chairman of the Board the President shall have the powers and duties of the
Chairman of the Board.
Section 3. The Chairman of the Board of Directors or the
President as designated by the Board of Directors, shall carry into effect
all legal directions of the Executive Committee and of the Board of
Directors, and shall at all times exercise general supervision over the
interest, affairs and operations of the Company and perform all duties
incident to his office.
Section 4. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and
such other powers and duties as may from time to time be assigned to them
by the Board of Directors, the Executive Committee, the Chairman of the
Board or the President and by the officer in charge of the department or
division to which they are assigned.
Section 5. The Secretary shall attend to the giving of notice
of meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition
to the other notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and mailed
well in advance of the scheduled date of any other meeting. He shall have
custody of the corporate seal and shall affix the same to any documents
requiring such corporate seal and to attest the same.
Section 6. The Treasurer shall have general supervision over
all assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for the
keeping of proper records of the evidence of property or indebtedness and
of all the transactions of the Company. He shall have general supervision
of the expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the Company, and
perform such other duties as may be assigned to him from time to time by
the Board of Directors of the Executive Committee.
Section 7. There may be a Controller who shall exercise
general supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate times
a report relating to the general condition and internal operations of the
Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller
and such duties as may be prescribed by the Controller.
Section 8. The officer designated by the Board of Directors to
be in charge of the Audit Division of the Company with such title as the
Board of Directors shall prescribe, shall report to and be directly
responsible only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the
Auditor and such duties as may be prescribed by the officer in charge of
the Audit Division.
Section 9. There may be one or more officers, subordinate in
rank to all Vice Presidents with such functional titles as shall be
determined from time to time by the Board of Directors, who shall ex
officio hold the office Assistant Secretary of this Company and who may
perform such duties as may be prescribed by the officer in charge of the
department or division to whom they are assigned.
Section 10. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books
of the Company and a transfer book shall be kept in which all transfers of
stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of
the President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an Assistant
Secretary, and the seal of the corporation shall be engraved thereon. Each
certificate shall recite that the stock represented thereby is
transferrable only upon the books of the Company by the holder thereof or
his attorney, upon surrender of the certificate properly endorsed. Any
certificate of stock surrendered to the Company shall be cancelled at the
time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of
Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized
to fix in advance a record date for the determination of the stockholders
entitled to notice of, and to vote at, any meeting of stockholders and any
adjournment thereof, or entitled to receive payment of any dividend, or to
any allotment or rights, or to exercise any rights in respect of any
change, conversion or exchange of capital stock, or in connection with
obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, or a date in connection
with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the
calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any
Vice President, however denominated by the Board of Directors, shall have
full power and authority to enter into, make, sign, execute, acknowledge
and/or deliver and the Secretary or any Assistant Secretary shall have full
power and authority to attest and affix the corporate seal of the Company
to any and all deeds, conveyances, assignments, releases, contracts,
agreements, bonds, notes, mortgages and all other instruments incident to
the business of this Company or in acting as executor, administrator,
guardian, trustee, agent or in any other fiduciary or representative
capacity by any and every method of appointment or by whatever person,
corporation, court officer or authority in the State of Delaware, or
elsewhere, without any specific authority, ratification, approval or
confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive
Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company,
other than salaried officers of the Company, shall be paid such reasonable
honoraria or fees for attending meetings of the Board of Directors as the
Board of Directors may from time to time determine. Directors and
associate directors who serve as members of committees, other than salaried
employees of the Company, shall be paid such reasonable honoraria or fees
for services as members of committees as the Board of Directors shall from
time to time determine and directors and associate directors may be
employed by the Company for such special services as the Board of Directors
may from time to time determine and shall be paid for such special services
so performed reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director, officer, employee or agent of
the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or
of a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided,
--------
however, that the payment of expenses incurred by a Director officer in his
-------
capacity as a Director or officer in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by the
Director or officer to repay all amounts advanced if it should be
ultimately determined that the Director or officer is not entitled to be
indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety days after
a written claim therefor has been received by the Corporation the claimant
may file suit to recover the unpaid amount of such claim and, if successful
in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the
burden of proving that the claimant was not entitled to the requested
indemnification of payment of expenses under applicable law.
(D) The rights conferred on any person by this Article
X shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed,
in whole or in part, and any new By-Law or By-Laws adopted at any regular
or special meeting of the Board of Directors by a vote of the majority of
all the members of the Board of Directors then in office.
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939,
as amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission
upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: November 18, 1996 By: /s/ Norma P. Closs
------------------------
Name: Norma P. Closs
Title: Vice President
EXHIBIT D
NOTICE
This form is intended to assist state
nonmember banks and savings banks with state
publication requirements. It has not been
approved by any state banking authorities.
Refer to your appropriate state banking
authorities for your state publication
requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
---------------------------------------------------------- -------------
Name of Bank City
in the State of DELAWARE , at the close of business on September 30,
------------
1996.
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins . . . . . . 198,288
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . 489,428
Available-for-sale securities . . . . . . . . . . . . . . . . . . . 783,718
Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . 19,000
Securities purchased under agreements to resell . . . . . . . . . . 48,500
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . 3,620,289
LESS: Allowance for loan and lease losses . . 49,721
LESS: Allocated transfer risk reserve . . . . 0
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . . 3,570,568
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . 83,675
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . 4,607
Investments in unconsolidated subsidiaries and associated companies . . 85
Customers' liability to this bank on acceptances outstanding . . . . . . 0
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . 4,131
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 101,592
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . 5,303,592
CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . 3,457,641
Noninterest-bearing . . . . . . . . . . . . . . 740,731
Interest-bearing . . . . . . . . . . . . . . . 2,716,910
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . 135,889
Securities sold under agreements to repurchase . . . . . . . . . 213,617
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . 94,999
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . 844,000
With original maturity of more than one year . . . . . . . . . 28,000
Mortgage indebtedness and obligations under capitalized leases . . . 0
Bank's liability on acceptances executed and outstanding . . . . . . . . 0
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . 0
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . 103,818
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . 4,877,964
Limited-life preferred stock and related surplus . . . . . . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,119
Undivided profits and capital reserves . . . . . . . . . . . . . . 363,705
Net unrealized holding gains (losses) on
available-for-sale securities . . . . . . . . . . . . . . . . . (696)
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . 425,628
Total liabilities, limited-life preferred stock,
and equity capital . . . . . . . . . . . . . . . . . . . . . . 5,303,592
EXHIBIT 25(a)-3
Registration Nos.
================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer
identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
THE WASHINGTON WATER POWER COMPANY
WASHINGTON WATER POWER CAPITAL II
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer identification no.)
1411 East Mission Avenue
Spokane, Washington 99202
(Address of principal executive offices) (Zip Code)
Washington Water Power Capital II Trust Originated Preferred Securities
(Title of the indenture securities)
=================================================================
[PAGE BREAK]
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank
Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the
obligor is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, Wilmington Trust Company, a
corporation organized and existing under the laws of Delaware,
has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the
City of Wilmington and State of Delaware on the 18th day of
November, 1996.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ Christopher L. Kaiser By: /s/ Norma P. Closs -
------------------------ -------------------
Assistant Secretary Name: Norma P. Closs
Title: Vice President
[PAGE BREAK]
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
[PAGE BREAK]
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate
the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and
the name of which company was changed to "WILMINGTON TRUST COMPANY" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been
from time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of
Delaware, does hereby alter and amend its Charter or Act of Incorporation
so that the same as so altered and amended shall in its entirety read as
follows:
FIRST: The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: The location of its principal office in the State of Delaware
is at Rodney Square North, in the City of Wilmington, County of New
Castle; the name of its resident agent is WILMINGTON TRUST COMPANY
whose address is Rodney Square North, in said City. In addition to
such principal office, the said corporation maintains and operates
branch offices in the City of Newark, New Castle County, Delaware, the
Town of Newport, New Castle County, Delaware, at Claymont, New Castle
County, Delaware, at Greenville, New Castle County Delaware, and at
Milford Cross Roads, New Castle County, Delaware, and shall be
empowered to open, maintain and operate branch offices at Ninth and
Shipley Streets, 418 Delaware Avenue, 2120 Market Street, and 3605
Market Street, all in the City of Wilmington, New Castle County,
Delaware, and such other branch offices or places of business as may
be authorized from time to time by the agency or agencies of the
government of the State of Delaware empowered to confer such
authority.
THIRD: (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the Corporation shall
require, to make by-laws not inconsistent with the Constitution
or laws of the United States or of this State, to discount bills,
notes or other evidences of debt, to receive deposits of money,
or securities for money, to buy gold and silver bullion and
foreign coins, to buy and sell bills of exchange, and generally
to use, exercise and enjoy all the powers, rights, privileges and
franchises incident to a corporation which are proper or
necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of such
property, real or personal, against any claim or claims, adverse
to his interest therein, and to prepare and give certificates of
title for any lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property of
every sort and kind, from executors, administrators, guardians,
public officers, courts, receivers, assignees, trustees, and from
all fiduciaries, and from all other persons and individuals, and
from all corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other receptacles
for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act
as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in
conjunction with any other person or persons, corporation or
corporations.
(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding places
of responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with
any other person, or persons, corporation, or corporations, or in
like manner become surety upon any bond, recognizance,
obligation, judgment, suit, order, or decree to be entered in any
court of record within the State of Delaware or elsewhere, or
which may now or hereafter be required by any law, judge, officer
or court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity in the receiving, holding, managing, and
disposing of any and all estates and property, real, personal or
mixed, and to be appointed as such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons, corporations,
court, officer, or authority, in the State of Delaware or
elsewhere; and whenever this Corporation is so appointed by any
person, corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as security
for the performance of the duties devolving upon it by such
appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to
perform, or for the assumption of any responsibility the said
Corporation may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for,
and dispose of interest, dividends and income upon and from any
of the bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property, any and
all the rights, powers and privileges of individual owners
thereof, including the right to vote thereon; to invest and deal
in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the property held
or owned by the Corporation, and to sell and pledge such bonds,
as and when the Board of Directors shall determine, and in the
promotion of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge, mortgage and convey real and personal property
of any name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred
by the laws of the State of Delaware, it is hereby expressly provided
that the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of
the world.
(2) To acquire the good will, rights, property and franchises
and to undertake the whole or any part of the assets and
liabilities of any person, firm, association or corporation, and
to pay for the same in cash, stock of this Corporation, bonds or
otherwise; to hold or in any manner to dispose of the whole or
any part of the property so purchased; to conduct in any lawful
manner the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of
every kind with any person, firm, association or corporation,
and, without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent
as natural persons might or could do, to purchase or otherwise
acquire, to hold, own, to mortgage, sell, convey or otherwise
dispose of, real and personal property, of every class and
description, in any State, District, Territory or Colony of the
United States, and in any foreign country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any
other clause of this or any other paragraph in this charter, but
that the objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as independent
objects, purposes and powers.
FOURTH: (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one
or more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every
particular, except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made cumulative.
The voting powers and the preferences and relative, participating,
optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding;
and, subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article FOURTH, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or resolutions
adopted prior to the issuance of any shares of a particular series of
Preferred Stock, the voting powers and the designations, preferences
and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the foregoing, the
following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of the
Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall
be paid, the extent of the preference or relation, if any, of
such dividends to the dividends payable on any other class or
classes, or series of the same or other class of stock and
whether such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares
of any other class or classes or of any series of the same or any
other class or classes of stock of the Corporation and the terms
and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices and the
time or times at which, and the terms and conditions on which,
Preferred Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of
such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under
such circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any, shall have
been met and after the Corporation shall have complied with all the
requirements, if any, with respect to the setting aside of sums as
sinking funds or redemption or purchase accounts (fixed in accordance
with the provisions of section (b) of this Article FOURTH), and
subject further to any conditions which may be fixed in accordance
with the provisions of section (b) of this Article Fourth, then and
not otherwise the holders of Common Stock shall be entitled to receive
such dividends as may be declared from time to time by the Board of
Directors.
(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b) of
this Article Fourth), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to receive all of the remaining assets of the
Corporation, tangible and intangible, of whatever kind available
for distribution to stockholders ratably in proportion to the
number of shares of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted by
the Board of Directors pursuant to section (b) of this Article
Fourth, each holder of Common Stock shall have one vote in
respect of each share of Common Stock held on all matters voted
upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or
of options, warrants or other rights to purchase shares of any class
or series of stock or of other securities of the Corporation shall
have any preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of any class or
series to be issued by reason of any increase of the authorized
capital stock of the Corporation of any class or series, or bonds,
certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any
class or series, or carrying any right to purchase stock of any class
or series, but any such unissued stock, additional authorized issue of
shares of any class or series of stock or securities convertible into
or exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or associations,
whether such holders or others, and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and
rights of each other series of Preferred Stock shall, in each case, be
as fixed from time to time by the Board of Directors in the resolution
or resolutions adopted pursuant to authority granted in section (b) of
this Article Fourth and the consent, by class or series vote or
otherwise, of the holders of such of the series of Preferred Stock as
are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such other
series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors
may provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this Article Fourth
that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares of
such series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the
Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of
Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased
from time to time by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote thereon.
FIFTH: (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of
directors constituting the entire Board shall be not less than five
nor more than twenty-five as fixed from time to time by vote of a
majority of the whole Board, provided, however, that the number of
directors shall not be reduced so as to shorten the term of any
director at the time in office, and provided further, that the number
of directors constituting the whole Board shall be twenty-four until
otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors
constituting the whole Board permits, with the term of office of one
class expiring each year. At the annual meeting of stockholders in
1982, directors of the first class shall be elected to hold office for
a term expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term expiring
at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors
for any reason, and any newly created directorships resulting from any
increase in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders
shall elect a successor to such director to hold office until the next
election of the class for which such director shall have been chosen
and until his successor shall be elected and qualified. No decrease
in the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding
the fact that some lesser percentage may be specified by law, this
Charter or Act of Incorporation or the By-Laws of the Corporation),
any director or the entire Board of Directors of the Corporation may
be removed at any time without cause, but only by the affirmative vote
of the holders of two-thirds or more of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice in
writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than 14
days nor more than 50 days prior to any meeting of the stockholders
called for the election of directors; provided, however, that if less
than 21 days' notice of the meeting is given to stockholders, such
written notice shall be delivered or mailed, as prescribed, to the
Secretary of the Corporation not later than the close of the seventh
day following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board
of Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment
of such nominee and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may be
taken without a meeting, and the power of stockholders to consent in
writing, without a meeting, to the taking of any action is
specifically denied.
Sixth: The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon corporations
organized under the Act entitled "An Act Providing a General
Corporation Law", approved March 10, 1899, as from time to time
amended.
EIGHTH: This Act shall be deemed and taken to be a private Act.
NINTH: This Corporation is to have perpetual existence.
TENTH: The Board of Directors, by resolution passed by a majority of
the whole Board, may designate any of their number to constitute an
Executive Committee, which Committee, to the extent provided in said
resolution, or in the By-Laws of the Company, shall have and may
exercise all of the powers of the Board of Directors in the management
of the business and affairs of the Corporation, and shall have power
to authorize the seal of the Corporation to be affixed to all papers
which may require it.
ELEVENTH: The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
TWELFTH: The Corporation may transact business in any part of the
world.
THIRTEENTH: The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by
a vote of the majority of the entire Board. The stockholders may
make, alter or repeal any By-Law whether or not adopted by them,
provided however, that any such additional By-Laws, alterations or
repeal may be adopted only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class).
FOURTEENTH: Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
FIFTEENTH: (a) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of
this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any other
corporation (whether or not itself an Interested Stockholder),
which, after such merger or consolidation, would be an Affiliate
(as hereinafter defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, considered for the purpose of
this Article FIFTEENTH as one class ("Voting Shares"). Such affirmative
vote shall be required notwithstanding the fact that no vote may be
required, or that some lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to
any one or more of clauses (A) through (E) of paragraph 1 of
the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business combination
and such business combination shall require only such affirmative
vote as is required by law and any other provisions of the
Charter or Act of Incorporation of By-Laws if such business
combination has been approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on such business
combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more
than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within
two years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within
two years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have
occurred in the course of a transaction or series of transactions
not involving a public offering within the meaning of the
Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates
(as hereafter defined) beneficially own, directly or indirectly,
or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement,
or upon exercise of conversion rights, warrants or options or
otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on December
31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect in December 31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph (2) of
this section (c), the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article FIFTEENTH on the basis
of information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4)
whether the assets subject to any business combination or the
consideration received for the issuance or transfer of securities
by the Corporation, or any Subsidiary has an aggregate fair
market value of $1,00,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, this Charter
or Act of Incorporation by the By-Laws), the affirmative vote of the
holders of at least two-thirds of the outstanding shares of the
capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) shall
be required to amend, alter or repeal any provision of Articles FIFTH,
THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of
Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable
to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a Director, except to the extent such exemption
from liability or limitation thereof is not permitted under the
Delaware General Corporation Laws as the same exists or may hereafter
be amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or
omission occurring prior to the time of such repeal or
modification."
[PAGE BREAK]
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on February 21, 1991
[PAGE BREAK]
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or
at such other date, time, or place as may be designated by resolution by
the Board of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10 days before said meeting,
at his last known address, a written or printed notice fixing the time and
place of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined,
shall constitute a quorum at all meetings of stockholders for the
transaction of any business, but the holders of a small number of shares
may adjourn, from time to time, without further notice, until a quorum is
secured. At each annual or special meeting of stockholders, each
stockholder shall be entitled to one vote, either in person or by proxy,
for each shares of stock registered in the stockholder's name on the books
of the Company on the record date for any such meeting as determined
herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the
Company, provided, however, that this limitation shall not apply to any
person who was serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. Regular meetings of the Board of Directors shall be held
on the third Thursday of each month at the principal office of the Company,
or at such other place and time as may be designated by the Board of
Directors, the Chairman of the Board, or the President.
Section 6. Special meetings of the Board of Directors may be called
at any time by the Chairman of the Board of Directors or by the President,
and shall be called upon the written request of a majority of the
directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the
time or place of any regular meeting, stating the time and place of such
meeting, which shall be mailed not less than two days before the time of
holding such meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors,
although less than a quorum, shall have the right to elect the successor
who shall hold office for the remainder of the full term of the class of
directors in which the vacancy occurred, and until such director's
successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President
who may be the same person. The Board of Directors shall also elect at
such meeting a Secretary and a Treasurer, who may be the same person, may
appoint at any time such other committees and elect or appoint such other
officers as it may deem advisable. The Board of Directors may also elect
at such meeting one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
COMMITTEES
Section I. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its
own members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of
the Board of Directors when it is not in session to transact all business
for and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at least once a week
in each week the Board is not regularly scheduled to meet. A majority of
its members shall be necessary to constitute a quorum for the transaction
of business. Special meetings of the Executive Committee may be held at
any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee
shall be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend
all investments that may be made of the funds of the Company, and shall
direct the disposal of the same, in accordance with such rules and
regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business
of the Company by its directors and officers as contemplated by these By-
Laws any two available members of the Executive Committee as constituted
immediately prior to such disaster shall constitute a quorum of that
Committee for the full conduct and management of the affairs and business
of the Company in accordance with the provisions of Article III of these
By-Laws; and if less than three members of the Trust Committee is
constituted immediately prior to such disaster shall be available for the
transaction of its business, such Executive Committee shall also be
empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at
such time, of a minimum of two members of such Executive Committee, any
three available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company in
accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose,
and any provisions of these By-Laws (other than this Section) and any
resolutions which are contrary to the provisions of this Section or to the
provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim
Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its
affairs and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more
than thirteen members who shall be selected by the Board of Directors, a
majority of whom shall be members of the Board of Directors and who shall
hold office during the pleasure of the Board.
(B) The Trust Committee shall have general supervision
over the Trust Department and the investment of trust funds, in all
matters, however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal
office of the Company or elsewhere in its discretion at least once a month.
A majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Trust Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Trust Committee shall
be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the
Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none
of whom shall be an officer of the Company, and shall hold office at the
pleasure of the Board.
(B) The Audit Committee shall have general supervision
over the Audit Division in all matters however subject to the approval of
the Board of Directors; it shall consider all matters brought to its
attention by the officer in charge of the Audit Division, review all
reports of examination of the Company made by any governmental agency or
such independent auditor employed for that purpose, and make such
recommendations to the Board of Directors with respect thereto or with
respect to any other matters pertaining to auditing the Company as it shall
deem desirable.
(C) The Audit Committee shall meet whenever and wherever
the majority of its members shall deem it to be proper for the transaction
of its business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not
more than five (5) members who shall be selected by the Board of Directors
from its own members who are not officers of the Company and who shall hold
office during the pleasure of the Board.
(B) The Compensation Committee shall in general advise
upon all matters of policy concerning the Company brought to its attention
by the management and from time to time review the management of the
Company, major organizational matters, including salaries and employee
benefits and specifically shall administer the Executive Incentive
Compensation Plan.
(C) Meetings of the Compensation Committee may be called
at any time by the Chairman of the Compensation Committee, the Chairman of
the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be
elected by the Board of Directors as an associate director, to serve during
the pleasure of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought
to the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of
any Committee created under Article III of the By-Laws of this Company, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in
the place of any such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers
and shall perform such duties as the Board of Directors may from time to
time confer and direct. He shall also exercise such powers and perform
such duties as may from time to time be agreed upon between himself and the
President of the Company.
Section 2. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
Section 3. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and
shall at all times exercise general supervision over the interest, affairs
and operations of the Company and perform all duties incident to his
office.
Section 4. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and
such other powers and duties as may from time to time be assigned to them
by the Board of Directors, the Executive Committee, the Chairman of the
Board or the President and by the officer in charge of the department or
division to which they are assigned.
Section 5. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition
to the other notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and mailed
well in advance of the scheduled date of any other meeting. He shall have
custody of the corporate seal and shall affix the same to any documents
requiring such corporate seal and to attest the same.
Section 6. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for the
keeping of proper records of the evidence of property or indebtedness and
of all the transactions of the Company. He shall have general supervision
of the expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the Company, and
perform such other duties as may be assigned to him from time to time by
the Board of Directors of the Executive Committee.
Section 7. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate times
a report relating to the general condition and internal operations of the
Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 8. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only
to the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 9. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the
office Assistant Secretary of this Company and who may perform such duties
as may be prescribed by the officer in charge of the department or division
to whom they are assigned.
Section 10. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an Assistant
Secretary, and the seal of the corporation shall be engraved thereon. Each
certificate shall recite that the stock represented thereby is
transferrable only upon the books of the Company by the holder thereof or
his attorney, upon surrender of the certificate properly endorsed. Any
certificate of stock surrendered to the Company shall be cancelled at the
time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of
Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled
to notice of, and to vote at, any meeting of stockholders and any
adjournment thereof, or entitled to receive payment of any dividend, or to
any allotment or rights, or to exercise any rights in respect of any
change, conversion or exchange of capital stock, or in connection with
obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, or a date in connection
with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power
and authority to attest and affix the corporate seal of the Company to any
and all deeds, conveyances, assignments, releases, contracts, agreements,
bonds, notes, mortgages and all other instruments incident to the business
of this Company or in acting as executor, administrator, guardian, trustee,
agent or in any other fiduciary or representative capacity by any and every
method of appointment or by whatever person, corporation, court officer or
authority in the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of Directors
or the Executive Committee, and any and all such instruments shall have the
same force and validity as although expressly authorized by the Board of
Directors and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable
honoraria or fees for attending meetings of the Board of Directors as the
Board of Directors may from time to time determine. Directors and
associate directors who serve as members of committees, other than salaried
employees of the Company, shall be paid such reasonable honoraria or fees
for services as members of committees as the Board of Directors shall from
time to time determine and directors and associate directors may be
employed by the Company for such special services as the Board of Directors
may from time to time determine and shall be paid for such special services
so performed reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or
may hereafter be amended, any person who was or is made or is threatened to
be made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding")
by reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or/ agent of another corporation or
of a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, PROVIDED,
HOWEVER, that the payment of expenses incurred by a Director officer in his
capacity as a Director or officer in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by the
Director or officer to repay all amounts advanced if it should be
ultimately determined that the Director or officer is not entitled to be
indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety days after
a written claim therefor has been received by the Corporation the claimant
may file suit to recover the unpaid amount of such claim and, if successful
in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the
burden of proving that the claimant was not entitled to the requested
indemnification of payment of expenses under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all
the members of the Board of Directors then in office.
[PAGE BREAK]
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission
upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: November 18, 1996 By: /s/ Norma P. Closs
Name: Norma P. Closs
Title: Vice President
[PAGE BREAK]
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks
with state publication requirements. It has not been approved by any state
banking authorities. Refer to your appropriate state banking authorities
for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
------------------------ ----------
Name of Bank City
in the State of DELAWARE, at the close of business on September 30, 1996.
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins . . . . . . . 198,288
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . 489,428
Available-for-sale securities . . . . . . . . . . . . . . . . . . . 783,718
Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . 19,000
Securities purchased under agreements to resell . . . . . . . . . . 48,500
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . 3,620,289
LESS: Allowance for loan and lease losses . . 49,721
LESS: Allocated transfer risk reserve . . . . 0
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . . . . . . . . 3,570,568
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . 83,675
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . 4,607
Investments in unconsolidated subsidiaries and associated companies . . 85
Customers' liability to this bank on acceptances outstanding . . . . . . 0
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . 4,131
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 101,592
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . 5,303,592
[PAGE BREAK]
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . 3,457,641
Noninterest-bearing . . . . . . . . . . . . . . 740,731
Interest-bearing . . . . . . . . . . . . . . . 2,716,910
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . 135,889
Securities sold under agreements to repurchase . . . . . . . . . 213,617
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . 94,999
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . . 844,000
With original maturity of more than one year . . . . . . . . . . 28,000
Mortgage indebtedness and obligations under capitalized leases . . . 0
Bank's liability on acceptances executed and outstanding . . . . . . . . 0
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . 0
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . 103,818
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . 4,877,964
Limited-life preferred stock and related surplus . . . . . . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,119
Undivided profits and capital reserves . . . . . . . . . . . . . . 363,705
Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . . . (696)
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . 425,628
Total liabilities, limited-life preferred stock,
and equity capital . . . . . . . . . . . . . . . . . . . . . . 5,303,592
Exhibit 25(a)-4
Registration Nos.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
----
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
THE WASHINGTON WATER POWER COMPANY
WASHINGTON WATER POWER CAPITAL III
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer identification no.)
1411 East Mission Avenue
Spokane, Washington 99202
(Address of principal executive offices) (Zip Code)
Washington Water Power Capital III Trust Originated Preferred Securities
(Title of the indenture securities)
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ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, Wilmington Trust Company, a corporation
organized and existing under the laws of Delaware, has duly caused this
Statement of Eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Wilmington and State of
Delaware on the 18th day of November, 1996.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ Christopher L. Kaiser By:/s/ Norma P. Closs
------------------------- ----------------------
Assistant Secretary Name: Norma P. Closs
Title: Vice President
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of
the General Assembly of the State of Delaware, entitled "An Act to
Incorporate the Delaware Guarantee and Trust Company", approved March 2,
A.D. 1901, and the name of which company was changed to "WILMINGTON TRUST
COMPANY" by an amendment filed in the Office of the Secretary of State on
March 18, A.D. 1903, and the Charter or Act of Incorporation of which
company has been from time to time amended and changed by merger agreements
pursuant to the corporation law for state banks and trust companies of the
State of Delaware, does hereby alter and amend its Charter or Act of
Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST
COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is
WILMINGTON TRUST COMPANY whose address is Rodney Square North,
in said City. In addition to such principal office, the said
corporation maintains and operates branch offices in the City
of Newark, New Castle County, Delaware, the Town of Newport,
New Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at
Milford Cross Roads, New Castle County, Delaware, and shall be
empowered to open, maintain and operate branch offices at Ninth
and Shipley Streets, 418 Delaware Avenue, 2120 Market Street,
and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or
places of business as may be authorized from time to time by
the agency or agencies of the government of the State of
Delaware empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by
this Corporation are to do any or all of the things herein
mentioned as fully and to the same extent as natural persons
might or could do and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court
of law or equity and to make and use a common seal, and
alter the seal at pleasure, to hold, purchase, convey,
mortgage or otherwise deal in real and personal estate and
property, and to appoint such officers and agents as the
business of the Corporation shall require, to make by-laws
not inconsistent with the Constitution or laws of the
United States or of this State, to discount bills, notes or
other evidences of debt, to receive deposits of money, or
securities for money, to buy gold and silver bullion and
foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers,
rights, privileges and franchises incident to a corporation
which are proper or necessary for the transaction of the
business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or
claims, adverse to his interest therein, and to prepare and
give certificates of title for any lands or premises in the
State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute
all papers which may be necessary or proper in such
business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money,
jewelry, plate, deeds, bonds and any and all other personal
property of every sort and kind, from executors,
administrators, guardians, public officers, courts,
receivers, assignees, trustees, and from all fiduciaries,
and from all other persons and individuals, and from all
corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state, municipality,
body politic, corporation, association or person, either
alone or in conjunction with any other person or persons,
corporation or corporations.
(8) To guarantee the validity, performance or effect of
any contract or agreement, and the fidelity of persons
holding places of responsibility or trust; to become surety
for any person, or persons, for the faithful performance of
any trust, office, duty, contract or agreement, either by
itself or in conjunction with any other person, or persons,
corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment,
suit, order, or decree to be entered in any court of record
within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or
court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity in the receiving,
holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as
such trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and
whenever this Corporation is so appointed by any person,
corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or
in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken
and held as security for the performance of the duties
devolving upon it by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of
any private, public or municipal corporation within and
without the State of Delaware, or of the Government of the
United States, or of any state, territory, colony, or
possession thereof, or of any foreign government or
country; to receive, collect, receipt for, and dispose of
interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and
to exercise in respect of all such bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other
property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys
of the Corporation upon such securities and in such manner
as it may think fit and proper, and from time to time to
vary or realize such investments; to issue bonds and secure
the same by pledges or deeds of trust or mortgages of or
upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and
when the Board of Directors shall determine, and in the
promotion of its said corporate business of investment and
to the extent authorized by law, to lease, purchase, hold,
sell, assign, transfer, pledge, mortgage and convey real
and personal property of any name and nature and any estate
or interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have
the following powers:
(1) To do any or all of the things herein set forth, to
the same extent as natural persons might or could do, and
in any part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of this
Corporation, bonds or otherwise; to hold or in any manner
to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any
part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts
of every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw,
make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of
its operations and businesses, without restriction to the
same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said paragraph)
be nowise limited or restricted by reference to or
inference from the terms of any other clause of this or any
other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects,
purposes and powers.
FOURTH: - (a) The total number of shares of all classes of
stock which the Corporation shall have authority to issue is
forty-one million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time
in one or more series as may from time to time be determined by
the Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock
shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other
special rights of each such series, and the qualifications,
limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and,
subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article FOURTH, the Board of Directors of the Corporation
is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a
particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other
special rights, and the qualifications, limitations and
restrictions of such series, including, but without limiting
the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then
outstanding) from time to time by like action of the Board
of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the
same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock
of such series to convert the same into or exchange the
same for, shares of any other class or classes or of any
series of the same or any other class or classes of stock
of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices
and the time or times at which, and the terms and
conditions on which, Preferred Stock of such series may be
redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale of
assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the Preferred
Stock of such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a
class, to elect one or more directors of the Corporation if
there shall have been a default in the payment of dividends
on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any,
shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to the
setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of
section (b) of this Article FOURTH), and subject further to any
conditions which may be fixed in accordance with the provisions
of section (b) of this Article FOURTH, then and not otherwise
the holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of
Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b)
of this Article Fourth, each holder of Common Stock shall
have one vote in respect of each share of Common Stock held
on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase
shares of any class or series of stock or of other securities
of the Corporation shall have any preemptive right to purchase
or subscribe for any unissued stock of any class or series or
any additional shares of any class or series to be issued by
reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into
or exchangeable for stock of the Corporation of any class or
series, or carrying any right to purchase stock of any class or
series, but any such unissued stock, additional authorized
issue of shares of any class or series of stock or securities
convertible into or exchangeable for stock, or carrying any
right to purchase stock, may be issued and disposed of pursuant
to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others,
and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series
of Preferred Stock in relation to the relative powers,
preferences and rights of each other series of Preferred Stock
shall, in each case, be as fixed from time to time by the Board
of Directors in the resolution or resolutions adopted pursuant
to authority granted in section (b) of this Article FOURTH and
the consent, by class or series vote or otherwise, of the
holders of such of the series of Preferred Stock as are from
time to time outstanding shall not be required for the issuance
by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such
other series shall be fixed by the Board of Directors as senior
to, or on a parity with, the powers, preferences and rights of
such outstanding series, or any of them; provided, however,
that the Board of Directors may provide in the resolution or
resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article FOURTH that the consent
of the holders of a majority (or such greater proportion as
shall be therein fixed) of the outstanding shares of such
series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any
series of Preferred Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and
on such terms and for such consideration as shall be fixed by
the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and
on such terms and for such consideration as shall be fixed by
the Board of Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be
increased or decreased from time to time by the affirmative
vote of the holders of a majority of the stock of the
Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall
be conducted and managed by a Board of Directors. The number
of directors constituting the entire Board shall be not less
than five nor more than twenty-five as fixed from time to time
by vote of a majority of the whole Board, provided, however,
that the number of directors shall not be reduced so as to
shorten the term of any director at the time in office, and
provided further, that the number of directors constituting the
whole Board shall be twenty-four until otherwise fixed by a
majority of the whole Board.
(b) The Board of Directors shall be divided into three
classes, as nearly equal in number as the then total number of
directors constituting the whole Board permits, with the term
of office of one class expiring each year. At the annual
meeting of stockholders in 1982, directors of the first class
shall be elected to hold office for a term expiring at the next
succeeding annual meeting, directors of the second class shall
be elected to hold office for a term expiring at the second
succeeding annual meeting and directors of the third class
shall be elected to hold office for a term expiring at the
third succeeding annual meeting. Any vacancies in the Board of
Directors for any reason, and any newly created directorships
resulting from any increase in the directors, may be filled by
the Board of Directors, acting by a majority of the directors
then in office, although less than a quorum, and any directors
so chosen shall hold office until the next annual election of
directors. At such election, the stockholders shall elect a
successor to such director to hold office until the next
election of the class for which such director shall have been
chosen and until his successor shall be elected and qualified.
No decrease in the number of directors shall shorten the term
of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the
By-Laws of the Corporation), any director or the entire Board
of Directors of the Corporation may be removed at any time
without cause, but only by the affirmative vote of the holders
of two-thirds or more of the outstanding shares of capital
stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one
class) cast at a meeting of the stockholders called for that
purpose.
(d) Nominations for the election of directors may be made by
the Board of Directors or by any stockholder entitled to vote
for the election of directors. Such nominations shall be made
by notice in writing, delivered or mailed by first class United
States mail, postage prepaid, to the Secretary of the
Corporation not less than 14 days nor more than 50 days prior
to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice
of the meeting is given to stockholders, such written notice
shall be delivered or mailed, as prescribed, to the Secretary
of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the
Board of Directors shall be given by the Chairman on behalf of
the Board.
(e) Each notice under subsection (d) shall set forth (i) the
name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal
occupation or employment of such nominee and (iii) the number
of shares of stock of the Corporation which are beneficially
owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at
any annual or special meeting of stockholders of the
Corporation may be taken without a meeting, and the power of
stockholders to consent in writing, without a meeting, to the
taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from
time to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the
same powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing
a General Corporation Law", approved March 10, 1899, as from
time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private
Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number
to constitute an Executive Committee, which Committee, to the
extent provided in said resolution, or in the By-Laws of the
Company, shall have and may exercise all of the powers of the
Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize
the seal of the Corporation to be affixed to all papers which
may require it.
ELEVENTH: - The private property of the stockholders shall not
be liable for the payment of corporate debts to any extent
whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of
the Corporation by a vote of the majority of the entire Board.
The stockholders may make, alter or repeal any By-Law whether
or not adopted by them, provided however, that any such
additional By-Laws, alterations or repeal may be adopted only
by the affirmative vote of the holders of two-thirds or more of
the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors
(considered for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the
books of the Company outside of the State of Delaware at such
places as may be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required
by law, and except as otherwise expressly provided in sections
(b) and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested Stockholder
or any Affiliate of any Interested Stockholder of any
assets of the Corporation or any Subsidiary having an
aggregate fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate
of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof)
having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, considered for the purpose of
this Article FIFTEENTH as one class ("Voting Shares"). Such affirmative
vote shall be required notwithstanding the fact that no vote may be
required, or that some lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which is
referred to any one or more of clauses (A) through (E) of
paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article
FIFTEENTH shall not be applicable to any particular
business combination and such business combination shall
require only such affirmative vote as is required by law
and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has
been approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote
on such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of
more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by
any Interested Stockholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a
public offering within the meaning of the Securities Act of
1933.
(3) A person shall be the "beneficial owner" of any Voting
Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own,
directly or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such right
is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned person
or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant
to any agreement, or upon exercise of conversion rights,
warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as
in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a
majority of any class of equity security (as defined in Rule
3a11-1 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect in December 31,
1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of
Investment Stockholder set forth in paragraph (2) of this
section (c), the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and
duty to determine for the purposes of this Article
FIFTEENTH on the basis of information known to them, (1)
the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate of
another, (3) whether a person has an agreement, arrangement
or understanding with another as to the matters referred to
in paragraph (3) of section (c), or (4) whether the assets
subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market
value of $1,00,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this
Charter or Act of Incorporation or the By-Laws of the
Corporation (and in addition to any other vote that may be
required by law, this Charter or Act of Incorporation by the
By-Laws), the affirmative vote of the holders of at least two-
thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be
required to amend, alter or repeal any provision of Articles
FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or
Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a Director, except to
the extent such exemption from liability or limitation thereof
is not permitted under the Delaware General Corporation Laws as
the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON FEBRUARY 21, 1991
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on
the third Thursday in April each year at the principal office at the
Company or at such other date, time, or place as may be designated by
resolution by the Board of Directors.
Section 2. Special meetings of all stockholders may be called
at any time by the Board of Directors, the Chairman of the Board or the
President.
Section 3. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10 days before said
meeting, at his last known address, a written or printed notice fixing the
time and place of such meeting.
Section 4. A majority in the amount of the capital stock of
the Company issued and outstanding on the record date, as herein
determined, shall constitute a quorum at all meetings of stockholders for
the transaction of any business, but the holders of a small number of
shares may adjourn, from time to time, without further notice, until a
quorum is secured. At each annual or special meeting of stockholders, each
stockholder shall be entitled to one vote, either in person or by proxy,
for each shares of stock registered in the stockholder's name on the books
of the Company on the record date for any such meeting as determined
herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of
Directors shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two
(72) years shall be nominated for election to the Board of Directors of the
Company, provided, however, that this limitation shall not apply to any
person who was serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office
for three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. Regular meetings of the Board of Directors shall be
held on the third Thursday of each month at the principal office of the
Company, or at such other place and time as may be designated by the Board
of Directors, the Chairman of the Board, or the President.
Section 6. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or by the
President, and shall be called upon the written request of a majority of
the directors.
Section 7. A majority of the directors elected and qualified
shall be necessary to constitute a quorum for the transaction of business
at any meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each
director of any special meeting of the Board of Directors, and of any
change in the time or place of any regular meeting, stating the time and
place of such meeting, which shall be mailed not less than two days before
the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of
Directors, although less than a quorum, shall have the right to elect the
successor who shall hold office for the remainder of the full term of the
class of directors in which the vacancy occurred, and until such director's
successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after
its election by the stockholders shall appoint an Executive Committee, a
Trust Committee, an Audit Committee and a Compensation Committee, and shall
elect from its own members a Chairman of the Board of Directors and a
President who may be the same person. The Board of Directors shall also
elect at such meeting a Secretary and a Treasurer, who may be the same
person, may appoint at any time such other committees and elect or appoint
such other officers as it may deem advisable. The Board of Directors may
also elect at such meeting one or more Associate Directors.
Section 11. The Board of Directors may at any time remove,
with or without cause, any member of any Committee appointed by it or any
associate director or officer elected by it and may appoint or elect his
successor.
Section 12. The Board of Directors may designate an officer to
be in charge of such of the departments or division of the Company as it
may deem advisable.
ARTICLE III
COMMITTEES
Section I. Executive Committee
(A) The Executive Committee shall be composed of not
more than nine members who shall be selected by the Board of Directors from
its own members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers
of the Board of Directors when it is not in session to transact all
business for and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at least
once a week in each week the Board is not regularly scheduled to meet. A
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may
be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee
shall be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the Company,
and shall direct the disposal of the same, in accordance with such rules
and regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business
of the Company by its directors and officers as contemplated by these By-
Laws any two available members of the Executive Committee as constituted
immediately prior to such disaster shall constitute a quorum of that
Committee for the full conduct and management of the affairs and business
of the Company in accordance with the provisions of Article III of these
By-Laws; and if less than three members of the Trust Committee is
constituted immediately prior to such disaster shall be available for the
transaction of its business, such Executive Committee shall also be
empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at
such time, of a minimum of two members of such Executive Committee, any
three available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company in
accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose,
and any provisions of these By-Laws (other than this Section) and any
resolutions which are contrary to the provisions of this Section or to the
provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim
Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its
affairs and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more
than thirteen members who shall be selected by the Board of Directors, a
majority of whom shall be members of the Board of Directors and who shall
hold office during the pleasure of the Board.
(B) The Trust Committee shall have general supervision
over the Trust Department and the investment of trust funds, in all
matters, however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal
office of the Company or elsewhere in its discretion at least once a month.
A majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Trust Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Trust Committee
shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to
appoint Committees and/or designate officers or employees of the Company to
whom supervision over the investment of trust funds may be delegated when
the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five
members who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer of the Company, and shall hold
office at the pleasure of the Board.
(B) The Audit Committee shall have general supervision
over the Audit Division in all matters however subject to the approval of
the Board of Directors; it shall consider all matters brought to its
attention by the officer in charge of the Audit Division, review all
reports of examination of the Company made by any governmental agency or
such independent auditor employed for that purpose, and make such
recommendations to the Board of Directors with respect thereto or with
respect to any other matters pertaining to auditing the Company as it shall
deem desirable.
(C) The Audit Committee shall meet whenever and
wherever the majority of its members shall deem it to be proper for the
transaction of its business, and a majority of its Committee shall
constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of
not more than five (5) members who shall be selected by the Board of
Directors from its own members who are not officers of the Company and who
shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in general advise
upon all matters of policy concerning the Company brought to its attention
by the management and from time to time review the management of the
Company, major organizational matters, including salaries and employee
benefits and specifically shall administer the Executive Incentive
Compensation Plan.
(C) Meetings of the Compensation Committee may be
called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be
elected by the Board of Directors as an associate director, to serve during
the pleasure of the Board.
(B) An associate director shall be entitled to attend
all directors meetings and participate in the discussion of all matters
brought to the Board, with the exception that he would have no right to
vote. An associate director will be eligible for appointment to Committees
of the Company, with the exception of the Executive Committee, Audit
Committee and Compensation Committee, which must be comprised solely of
active directors.
Section 6. Absence or Disqualification of Any Member of a
Committee
(A) In the absence or disqualification of any member
of any Committee created under Article III of the By-Laws of this Company,
the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in
the place of any such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall
preside at all meetings of the Board and shall have such further authority
and powers and shall perform such duties as the Board of Directors may from
time to time confer and direct. He shall also exercise such powers and
perform such duties as may from time to time be agreed upon between himself
and the President of the Company.
Section 2. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon him by
statute or assigned to him by the Board of Directors in the absence of the
Chairman of the Board the President shall have the powers and duties of the
Chairman of the Board.
Section 3. The Chairman of the Board of Directors or the
President as designated by the Board of Directors, shall carry into effect
all legal directions of the Executive Committee and of the Board of
Directors, and shall at all times exercise general supervision over the
interest, affairs and operations of the Company and perform all duties
incident to his office.
Section 4. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and
such other powers and duties as may from time to time be assigned to them
by the Board of Directors, the Executive Committee, the Chairman of the
Board or the President and by the officer in charge of the department or
division to which they are assigned.
Section 5. The Secretary shall attend to the giving of notice
of meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition
to the other notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and mailed
well in advance of the scheduled date of any other meeting. He shall have
custody of the corporate seal and shall affix the same to any documents
requiring such corporate seal and to attest the same.
Section 6. The Treasurer shall have general supervision over
all assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for the
keeping of proper records of the evidence of property or indebtedness and
of all the transactions of the Company. He shall have general supervision
of the expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the Company, and
perform such other duties as may be assigned to him from time to time by
the Board of Directors of the Executive Committee.
Section 7. There may be a Controller who shall exercise
general supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate times
a report relating to the general condition and internal operations of the
Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller
and such duties as may be prescribed by the Controller.
Section 8. The officer designated by the Board of Directors to
be in charge of the Audit Division of the Company with such title as the
Board of Directors shall prescribe, shall report to and be directly
responsible only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the
Auditor and such duties as may be prescribed by the officer in charge of
the Audit Division.
Section 9. There may be one or more officers, subordinate in
rank to all Vice Presidents with such functional titles as shall be
determined from time to time by the Board of Directors, who shall ex
officio hold the office Assistant Secretary of this Company and who may
perform such duties as may be prescribed by the officer in charge of the
department or division to whom they are assigned.
Section 10. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books
of the Company and a transfer book shall be kept in which all transfers of
stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of
the President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an Assistant
Secretary, and the seal of the corporation shall be engraved thereon. Each
certificate shall recite that the stock represented thereby is
transferrable only upon the books of the Company by the holder thereof or
his attorney, upon surrender of the certificate properly endorsed. Any
certificate of stock surrendered to the Company shall be cancelled at the
time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of
Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized
to fix in advance a record date for the determination of the stockholders
entitled to notice of, and to vote at, any meeting of stockholders and any
adjournment thereof, or entitled to receive payment of any dividend, or to
any allotment or rights, or to exercise any rights in respect of any
change, conversion or exchange of capital stock, or in connection with
obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, or a date in connection
with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the
calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any
Vice President, however denominated by the Board of Directors, shall have
full power and authority to enter into, make, sign, execute, acknowledge
and/or deliver and the Secretary or any Assistant Secretary shall have full
power and authority to attest and affix the corporate seal of the Company
to any and all deeds, conveyances, assignments, releases, contracts,
agreements, bonds, notes, mortgages and all other instruments incident to
the business of this Company or in acting as executor, administrator,
guardian, trustee, agent or in any other fiduciary or representative
capacity by any and every method of appointment or by whatever person,
corporation, court officer or authority in the State of Delaware, or
elsewhere, without any specific authority, ratification, approval or
confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive
Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company,
other than salaried officers of the Company, shall be paid such reasonable
honoraria or fees for attending meetings of the Board of Directors as the
Board of Directors may from time to time determine. Directors and
associate directors who serve as members of committees, other than salaried
employees of the Company, shall be paid such reasonable honoraria or fees
for services as members of committees as the Board of Directors shall from
time to time determine and directors and associate directors may be
employed by the Company for such special services as the Board of Directors
may from time to time determine and shall be paid for such special services
so performed reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director, officer, employee or agent of
the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or
of a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided,
--------
however, that the payment of expenses incurred by a Director officer in his
-------
capacity as a Director or officer in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by the
Director or officer to repay all amounts advanced if it should be
ultimately determined that the Director or officer is not entitled to be
indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety days after
a written claim therefor has been received by the Corporation the claimant
may file suit to recover the unpaid amount of such claim and, if successful
in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the
burden of proving that the claimant was not entitled to the requested
indemnification of payment of expenses under applicable law.
(D) The rights conferred on any person by this Article
X shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed,
in whole or in part, and any new By-Law or By-Laws adopted at any regular
or special meeting of the Board of Directors by a vote of the majority of
all the members of the Board of Directors then in office.
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939,
as amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission
upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: November 18, 1996 By: /s/ Norma P. Closs
------------------------
Name: Norma P. Closs
Title: Vice President
EXHIBIT D
NOTICE
This form is intended to assist state
nonmember banks and savings banks with state
publication requirements. It has not been
approved by any state banking authorities.
Refer to your appropriate state banking
authorities for your state publication
requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
---------------------------------------------------------- -------------
Name of Bank City
in the State of DELAWARE , at the close of business on September 30,
-------------
1996.
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins . . . . . . 198,288
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . 489,428
Available-for-sale securities . . . . . . . . . . . . . . . . . . . 783,718
Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . 19,000
Securities purchased under agreements to resell . . . . . . . . . . 48,500
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . 3,620,289
LESS: Allowance for loan and lease losses . . . 49,721
LESS: Allocated transfer risk reserve . . . . . 0
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . . . . . . 3,570,568
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . 83,675
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . 4,607
Investments in unconsolidated subsidiaries and associated companies . . 85
Customers' liability to this bank on acceptances outstanding . . . . . . 0
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . 4,131
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 101,592
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . 5,303,592
CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . 3,457,641
Noninterest-bearing . . . . . . . . . . . . 740,731
Interest-bearing . . . . . . . . . . . . . 2,716,910
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . 135,889
Securities sold under agreements to repurchase . . . . . . . . . 213,617
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . 94,999
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . 844,000
With original maturity of more than one year . . . . . . . . . 28,000
Mortgage indebtedness and obligations under capitalized leases . . . 0
Bank's liability on acceptances executed and outstanding . . . . . . . . 0
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . 0
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . 103,818
Total liabilities 4,877,964
Limited-life preferred stock and related surplus . . . . . . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,119
Undivided profits and capital reserves . . . . . . . . . . . . . . 363,705
Net unrealized holding gains (losses) on
available-for-sale securities . . . . . . . . . . . . . . . . . (696)
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . 425,628
Total liabilities, limited-life preferred stock,
and equity capital . . . . . . . . . . . . . . . . . . . . . . 5,303,592
Exhibit 25(a)-5
Registration Nos.
----------------------------------------------------------------
----------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
THE WASHINGTON WATER POWER COMPANY
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer identification no.)
1411 East Mission Avenue
Spokane, Washington 99202
(Address of principal executive offices) (Zip Code)
Guarantee with respect to Washington Water Power Capital I
Trust Originated Preferred Securities and The Washington
Water Power Company obligations with respect to such Preferred
Securities under an Indenture and an Amended and Restated
Declaraction of Trust Agreement
(Title of the indenture securities)
----------------------------------------------------------------
----------------------------------------------------------------
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe
each affiliation:
Based upon an examination of the books and records of
the trustee and upon information furnished by the
obligor, the obligor is not an affiliate of the
trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement
of Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington
Trust Company to commence business and the
authorization of Wilmington Trust Company to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington
Trust Company.
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, Wilmington Trust Company, a
corporation organized and existing under the laws of Delaware,
has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the
City of Wilmington and State of Delaware on the 18th day of
November, 1996.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ Christopher L. Kaiser By:/s/ Norma P. Closs
------------------------- ------------------
Assistant Secretary Name: Norma P. Closs
Title: Vice President
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an
Act of the General Assembly of the State of Delaware, entitled
"An Act to Incorporate the Delaware Guarantee and Trust Company",
approved March 2, A.D. 1901, and the name of which company was
changed to "WILMINGTON TRUST COMPANY" by an amendment filed in
the Office of the Secretary of State on March 18, A.D. 1903, and
the Charter or Act of Incorporation of which company has been
from time to time amended and changed by merger agreements
pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend
its Charter or Act of Incorporation so that the same as so
altered and amended shall in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST
COMPANY.
SECOND: - The location of its principal office in the
State of Delaware is at Rodney Square North, in the City
of Wilmington, County of New Castle; the name of its
resident agent is WILMINGTON TRUST COMPANY whose address
is Rodney Square North, in said City. In addition to such
principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle
County, Delaware, the Town of Newport, New Castle County,
Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford
Cross Roads, New Castle County, Delaware, and shall be
empowered to open, maintain and operate branch offices at
Ninth and Shipley Streets, 418 Delaware Avenue, 2120
Market Street, and 3605 Market Street, all in the City of
Wilmington, New Castle County, Delaware, and such other
branch offices or places of business as may be authorized
from time to time by the agency or agencies of the
government of the State of Delaware empowered to confer
such authority.
THIRD: - (a) The nature of the business and the objects
and purposes proposed to be transacted, promoted or
carried on by this Corporation are to do any or all of the
things herein mentioned as fully and to the same extent as
natural persons might or could do and in any part of the
world, viz.:
(1) To sue and be sued, complain and defend in any
Court of law or equity and to make and use a common
seal, and alter the seal at pleasure, to hold,
purchase, convey, mortgage or otherwise deal in real
and personal estate and property, and to appoint such
officers and agents as the business of the Corporation
shall require, to make by-laws not inconsistent with
the Constitution or laws of the United States or of
this State, to discount bills, notes or other
evidences of debt, to receive deposits of money, or
securities for money, to buy gold and silver bullion
and foreign coins, to buy and sell bills of exchange,
and generally to use, exercise and enjoy all the
powers, rights, privileges and franchises incident to
a corporation which are proper or necessary for the
transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property,
or any estate or interests therein, and to guarantee
the holder of such property, real or personal, against
any claim or claims, adverse to his interest therein,
and to prepare and give certificates of title for any
lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in
the receipt, collection, custody, investment and
management of funds, and the purchase, sale,
management and disposal of property of all
descriptions, and to prepare and execute all papers
which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers
of every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money,
jewelry, plate, deeds, bonds and any and all other
personal property of every sort and kind, from
executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and
individuals, and from all corporations whether state,
municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking
fund therefor on such terms as may be agreed upon
between the two parties, and in like manner may act as
Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust,
mortgage, bond or other instrument issued by any
state, municipality, body politic, corporation,
association or person, either alone or in conjunction
with any other person or persons, corporation or
corporations.
(8) To guarantee the validity, performance or effect
of any contract or agreement, and the fidelity of
persons holding places of responsibility or trust; to
become surety for any person, or persons, for the
faithful performance of any trust, office, duty,
contract or agreement, either by itself or in
conjunction with any other person, or persons,
corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any
court of record within the State of Delaware or
elsewhere, or which may now or hereafter be required
by any law, judge, officer or court in the State of
Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity in
the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed,
and to be appointed as such trustee, trustee in
bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian or
bailee by any persons, corporations, court, officer,
or authority, in the State of Delaware or elsewhere;
and whenever this Corporation is so appointed by any
person, corporation, court, officer or authority such
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it
shall not be required to give bond with surety, but
its capital stock shall be taken and held as security
for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and
the exercise of any of its powers hereby given, or for
the performance of any of the duties which it may
undertake or be called upon to perform, or for the
assumption of any responsibility the said Corporation
may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds,
mortgages, debentures, shares of capital stock, and
other securities, obligations, contracts and evidences
of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware,
or of the Government of the United States, or of any
state, territory, colony, or possession thereof, or of
any foreign government or country; to receive,
collect, receipt for, and dispose of interest,
dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it,
and to exercise in respect of all such bonds,
mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of
indebtedness and other property, any and all the
rights, powers and privileges of individual owners
thereof, including the right to vote thereon; to
invest and deal in and with any of the moneys of the
Corporation upon such securities and in such manner as
it may think fit and proper, and from time to time to
vary or realize such investments; to issue bonds and
secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the
property held or owned by the Corporation, and to sell
and pledge such bonds, as and when the Board of
Directors shall determine, and in the promotion of its
said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold,
sell, assign, transfer, pledge, mortgage and convey
real and personal property of any name and nature and
any estate or interest therein.
(b) In furtherance of, and not in limitation, of the
powers conferred by the laws of the State of Delaware, it
is hereby expressly provided that the said Corporation
shall also have the following powers:
(1) To do any or all of the things herein set forth,
to the same extent as natural persons might or could
do, and in any part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of
the assets and liabilities of any person, firm,
association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise;
to hold or in any manner to dispose of the whole or
any part of the property so purchased; to conduct in
any lawful manner the whole or any part of any
business so acquired, and to exercise all the powers
necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or
otherwise lien, and to lease, sell, exchange,
transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out
contracts of every kind with any person, firm,
association or corporation, and, without limit as to
amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other
negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or
any of its operations and businesses, without
restriction to the same extent as natural persons
might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise
dispose of, real and personal property, of every class
and description, in any State, District, Territory or
Colony of the United States, and in any foreign
country or place.
(6) It is the intention that the objects, purposes
and powers specified and clauses contained in this
paragraph shall (except where otherwise expressed in
said paragraph) be nowise limited or restricted by
reference to or inference from the terms of any other
clause of this or any other paragraph in this charter,
but that the objects, purposes and powers specified in
each of the clauses of this paragraph shall be
regarded as independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes
of stock which the Corporation shall have authority to
issue is forty-one million (41,000,000) shares, consisting
of:
(1) One million (1,000,000) shares of Preferred
stock, par value $10.00 per share (hereinafter
referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common
Stock, par value $1.00 per share (hereinafter referred
to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to
time in one or more series as may from time to time be
determined by the Board of Directors each of said series
to be distinctly designated. All shares of any one series
of Preferred Stock shall be alike in every particular,
except that there may be different dates from which
dividends, if any, thereon shall be cumulative, if made
cumulative. The voting powers and the preferences and
relative, participating, optional and other special rights
of each such series, and the qualifications, limitations
or restrictions thereof, if any, may differ from those of
any and all other series at any time outstanding; and,
subject to the provisions of subparagraph 1 of Paragraph
(c) of this Article FOURTH, the Board of Directors of the
Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance
of any shares of a particular series of Preferred Stock,
the voting powers and the designations, preferences and
relative, optional and other special rights, and the
qualifications, limitations and restrictions of such
series, including, but without limiting the generality of
the foregoing, the following:
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or
decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of
the Board of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred
Stock of such series shall be paid, the extent of the
preference or relation, if any, of such dividends to
the dividends payable on any other class or classes,
or series of the same or other class of stock and
whether such dividends shall be cumulative or non-
cumulative;
(3) The right, if any, of the holders of Preferred
Stock of such series to convert the same into or
exchange the same for, shares of any other class or
classes or of any series of the same or any other
class or classes of stock of the Corporation and the
terms and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series
shall be subject to redemption, and the redemption
price or prices and the time or times at which, and
the terms and conditions on which, Preferred Stock of
such series may be redeemed.
(5) The rights, if any, of the holders of Preferred
Stock of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or
sale of assets, dissolution or winding-up, of the
Corporation.
(6) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the
Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting
the generality of the foregoing include the right,
voting as a series or by itself or together with other
series of Preferred Stock or all series of Preferred
Stock as a class, to elect one or more directors of
the Corporation if there shall have been a default in
the payment of dividends on any one or more series of
Preferred Stock or under such circumstances and on
such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to
preferential dividends on the Preferred Stock (fixed in
accordance with the provisions of section (b) of this
Article FOURTH), if any, shall have been met and after the
Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as
sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this
Article FOURTH), and subject further to any conditions
which may be fixed in accordance with the provisions of
section (b) of this Article FOURTH, then and not otherwise
the holders of Common Stock shall be entitled to receive
such dividends as may be declared from time to time by the
Board of Directors.
(2) After distribution in full of the preferential
amount, if any, (fixed in accordance with the
provisions of section (b) of this Article FOURTH), to
be distributed to the holders of Preferred Stock in
the event of voluntary or involuntary liquidation,
distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the
Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for
distribution to stockholders ratably in proportion to
the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by
the provisions of such resolution or resolutions as
may be adopted by the Board of Directors pursuant to
section (b) of this Article FOURTH each holder of
Common Stock shall have one vote in respect of each
share of Common Stock held on all matters voted upon
by the stockholders.
(d) No holder of any of the shares of any class or series
of stock or of options, warrants or other rights to
purchase shares of any class or series of stock or of
other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued
stock of any class or series or any additional shares of
any class or series to be issued by reason of any increase
of the authorized capital stock of the Corporation of any
class or series, or bonds, certificates of indebtedness,
debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or
series, or carrying any right to purchase stock of any
class or series, but any such unissued stock, additional
authorized issue of shares of any class or series of stock
or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of
Directors to such persons, firms, corporations or
associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of
Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each
series of Preferred Stock in relation to the relative
powers, preferences and rights of each other series of
Preferred Stock shall, in each case, be as fixed from time
to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in
section (b) of this Article FOURTH and the consent, by
class or series vote or otherwise, of the holders of such
of the series of Preferred Stock as are from time to time
outstanding shall not be required for the issuance by the
Board of Directors of any other series of Preferred Stock
whether or not the powers, preferences and rights of such
other series shall be fixed by the Board of Directors as
senior to, or on a parity with, the powers, preferences
and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide
in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to section (b) of this
Article FOURTH that the consent of the holders of a
majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting
thereon shall be required for the issuance of any or all
other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of
any series of Preferred Stock may be issued from time to
time as the Board of Directors of the Corporation shall
determine and on such terms and for such consideration as
shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to
time as the Board of Directors of the Corporation shall
determine and on such terms and for such consideration as
shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and
of Preferred Stock may, without a class or series vote, be
increased or decreased from time to time by the
affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation
shall be conducted and managed by a Board of Directors.
The number of directors constituting the entire Board
shall be not less than five nor more than twenty-five as
fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors
shall not be reduced so as to shorten the term of any
director at the time in office, and provided further, that
the number of directors constituting the whole Board shall
be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three
classes, as nearly equal in number as the then total
number of directors constituting the whole Board permits,
with the term of office of one class expiring each year.
At the annual meeting of stockholders in 1982, directors
of the first class shall be elected to hold office for a
term expiring at the next succeeding annual meeting,
directors of the second class shall be elected to hold
office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected
to hold office for a term expiring at the third succeeding
annual meeting. Any vacancies in the Board of Directors
for any reason, and any newly created directorships
resulting from any increase in the directors, may be
filled by the Board of Directors, acting by a majority of
the directors then in office, although less than a quorum,
and any directors so chosen shall hold office until the
next annual election of directors. At such election, the
stockholders shall elect a successor to such director to
hold office until the next election of the class for which
such director shall have been chosen and until his
successor shall be elected and qualified. No decrease in
the number of directors shall shorten the term of any
incumbent director.
(c) Notwithstanding any other provisions of this Charter
or Act of Incorporation or the By-Laws of the Corporation
(and notwithstanding the fact that some lesser percentage
may be specified by law, this Charter or Act of
Incorporation or the By-Laws of the Corporation), any
director or the entire Board of Directors of the
Corporation may be removed at any time without cause, but
only by the affirmative vote of the holders of two-thirds
or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made
by the Board of Directors or by any stockholder entitled
to vote for the election of directors. Such nominations
shall be made by notice in writing, delivered or mailed by
first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor
more than 50 days prior to any meeting of the stockholders
called for the election of directors; provided, however,
that if less than 21 days' notice of the meeting is given
to stockholders, such written notice shall be delivered or
mailed, as prescribed, to the Secretary of the Corporation
not later than the close of the seventh day following the
day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by
the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i)
the name, age, business address and, if known, residence
address of each nominee proposed in such notice, (ii) the
principal occupation or employment of such nominee and
(iii) the number of shares of stock of the Corporation
which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts
warrant, determine and declare to the meeting that a
nomination was not made in accordance with the foregoing
procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall
be disregarded.
(g) No action required to be taken or which may be taken
at any annual or special meeting of stockholders of the
Corporation may be taken without a meeting, and the power
of stockholders to consent in writing, without a meeting,
to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent
and servants as may be provided in the By-Laws as they may
from time to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given
the same powers, rights and privileges as may be conferred
upon corporations organized under the Act entitled "An Act
Providing a General Corporation Law", approved March 10,
1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a
private Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their
number to constitute an Executive Committee, which
Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise
all of the powers of the Board of Directors in the
management of the business and affairs of the Corporation,
and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require
it.
ELEVENTH: - The private property of the stockholders shall
not be liable for the payment of corporate debts to any
extent whatever.
TWELFTH: - The Corporation may transact business in any
part of the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws
of the Corporation by a vote of the majority of the entire
Board. The stockholders may make, alter or repeal any By-
Law whether or not adopted by them, provided however, that
any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital
stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one
class).
FOURTEENTH: - Meetings of the Directors may be held
outside of the State of Delaware at such places as may be
from time to time designated by the Board, and the
Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to
time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote
required by law, and except as otherwise expressly
provided in sections (b) and (c) of this Article
FIFTEENTH:
(A) any merger or consolidation of the Corporation or
any Subsidiary (as hereinafter defined) with or into
(i) any Interested Stockholder (as hereinafter
defined) or (ii) any other corporation (whether or not
itself an Interested Stockholder), which, after such
merger or consolidation, would be an Affiliate (as
hereinafter defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a
series of related transactions) to or with any
Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair
market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or
any Subsidiary (in one transaction or a series of
related transactions) of any securities of the
Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested
Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or
otherwise involving an Interested Stockholder) which
has the effect, directly or indirectly, of increasing
the proportionate share of the outstanding shares of
any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder, or any
Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least
two-thirds of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors, considered for the purpose of this Article FIFTEENTH
as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required,
or that some lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which
is referred to any one or more of clauses (A)
through (E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article
FIFTEENTH shall not be applicable to any particular
business combination and such business combination
shall require only such affirmative vote as is
required by law and any other provisions of the
Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm,
corporation or other entity.
(2) "Interested Stockholder" shall mean, in respect of
any business combination, any person (other than the
Corporation or any Subsidiary) who or which as of the
record date for the determination of stockholders entitled
to notice of and to vote on such business combination, or
immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly,
of more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any
time within two years prior thereto was the beneficial
owner, directly or indirectly, of not less than 10% of
the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in
any share of capital stock of the Corporation which
were at any time within two years prior thereto
beneficially owned by any Interested Stockholder, and
such assignment or succession shall have occurred in
the course of a transaction or series of transactions
not involving a public offering within the meaning of
the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any
Voting Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own,
directly or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or
options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or
indirectly, by any other person with which such first
mentioned person or any of its Affiliates or
Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding,
voting or disposing of any shares of capital stock of
the Corporation.
(4) The outstanding Voting Shares shall include shares
deemed owned through application of paragraph (3) above
but shall not include any other Voting Shares which may be
issuable pursuant to any agreement, or upon exercise of
conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of
1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a
majority of any class of equity security (as defined in
Rule 3a11-1 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect in December
31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of
the definition of Investment Stockholder set forth in
paragraph (2) of this section (c), the term "Subsidiary"
shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly,
by the Corporation.
(d) majority of the directors shall have the power
and duty to determine for the purposes of this Article
FIFTEENTH on the basis of information known to them,
(1) the number of Voting Shares beneficially owned by
any person (2) whether a person is an Affiliate or
Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another
as to the matters referred to in paragraph (3) of
section (c), or (4) whether the assets subject to any
business combination or the consideration received for
the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair
market value of $1,00,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall
be construed to relieve any Interested Stockholder
from any fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this
Charter or Act of Incorporation or the By-Laws of the
Corporation (and in addition to any other vote that may be
required by law, this Charter or Act of Incorporation by
the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital
stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one
class) shall be required to amend, alter or repeal any
provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH (a) a Director of this Corporation shall not
be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a
Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the
Delaware General Corporation Laws as the same exists or
may hereafter be amended.
(b) Any repeal or modification of the foregoing
paragraph shall not adversely affect any right or
protection of a Director of the Corporation existing
hereunder with respect to any act or omission
occurring prior to the time of such repeal or
modification."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on February 21, 1991
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be
held on the third Thursday in April each year at the principal
office at the Company or at such other date, time, or place as
may be designated by resolution by the Board of Directors.
Section 2. Special meetings of all stockholders may be
called at any time by the Board of Directors, the Chairman of the
Board or the President.
Section 3. Notice of all meetings of the stockholders
shall be given by mailing to each stockholder at least ten (10
days before said meeting, at his last known address, a written or
printed notice fixing the time and place of such meeting.
Section 4. A majority in the amount of the capital stock
of the Company issued and outstanding on the record date, as
herein determined, shall constitute a quorum at all meetings of
stockholders for the transaction of any business, but the holders
of a small number of shares may adjourn, from time to time,
without further notice, until a quorum is secured. At each
annual or special meeting of stockholders, each stockholder shall
be entitled to one vote, either in person or by proxy, for each
shares of stock registered in the stockholder's name on the books
of the Company on the record date for any such meeting as
determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of
Directors shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-
two (72) years shall be nominated for election to the Board of
Directors of the Company, provided, however, that this limitation
shall not apply to any person who was serving as director of the
Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold
office for three years or until their successors are elected and
qualified.
Section 4. The affairs and business of the Company shall
be managed and conducted by the Board of Directors.
Section 5. Regular meetings of the Board of Directors
shall be held on the third Thursday of each month at the
principal office of the Company, or at such other place and time
as may be designated by the Board of Directors, the Chairman of
the Board, or the President.
Section 6. Special meetings of the Board of Directors may
be called at any time by the Chairman of the Board of Directors
or by the President, and shall be called upon the written request
of a majority of the directors.
Section 7. A majority of the directors elected and
qualified shall be necessary to constitute a quorum for the
transaction of business at any meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each
director of any special meeting of the Board of Directors, and of
any change in the time or place of any regular meeting, stating
the time and place of such meeting, which shall be mailed not
less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation,
removal, inability to act, or disqualification of any director,
the Board of Directors, although less than a quorum, shall have
the right to elect the successor who shall hold office for the
remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have
been duly elected and qualified.
Section 10. The Board of Directors at its first meeting
after its election by the stockholders shall appoint an Executive
Committee, a Trust Committee, an Audit Committee and a
Compensation Committee, and shall elect from its own members a
Chairman of the Board of Directors and a President who may be the
same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person,
may appoint at any time such other committees and elect or
appoint such other officers as it may deem advisable. The Board
of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time
remove, with or without cause, any member of any Committee
appointed by it or any associate director or officer elected by
it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an
officer to be in charge of such of the departments or division of
the Company as it may deem advisable.
ARTICLE III
COMMITTEES
Section I. Executive Committee
(A) The Executive Committee shall be composed of
not more than nine members who shall be selected by the Board of
Directors from its own members and who shall hold office during
the pleasure of the Board.
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to
transact all business for and in behalf of the Company that may
be brought before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at
least once a week in each week the Board is not regularly
scheduled to meet. A majority of its members shall be necessary
to constitute a quorum for the transaction of business. Special
meetings of the Executive Committee may be held at any time when
a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors
at its next meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the
Company, and shall direct the disposal of the same, in accordance
with such rules and regulations as the Board of Directors from
time to time make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the
affairs and business of the Company by its directors and officers
as contemplated by these By-Laws any two available members of the
Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company
in accordance with the provisions of Article III of these By-
Laws; and if less than three members of the Trust Committee is
constituted immediately prior to such disaster shall be available
for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to
the Trust Committee under Article III Section 2 hereof. In the
event of the unavailability, at such time, of a minimum of two
members of such Executive Committee, any three available
directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company
in accordance with the foregoing provisions of this Section.
This By-Law shall be subject to implementation by Resolutions of
the Board of Directors presently existing or hereafter passed
from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are
contrary to the provisions of this Section or to the provisions
of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct
and management of its affairs and business under all of the other
provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not
more than thirteen members who shall be selected by the Board of
Directors, a majority of whom shall be members of the Board of
Directors and who shall hold office during the pleasure of the
Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust
funds, in all matters, however, being subject to the approval of
the Board of Directors.
(C) The Trust Committee shall meet at the
principal office of the Company or elsewhere in its discretion at
least once a month. A majority of its members shall be necessary
to constitute a quorum for the transaction of business. Special
meetings of the Trust Committee may be held at any time when a
quorum is present.
(D) Minutes of each meeting of the Trust
Committee shall be kept and promptly submitted to the Board of
Directors.
(E) The Trust Committee shall have the power to
appoint Committees and/or designate officers or employees of the
Company to whom supervision over the investment of trust funds
may be delegated when the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five
members who shall be selected by the Board of Directors from its
own members, none of whom shall be an officer of the Company, and
shall hold office at the pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however
subject to the approval of the Board of Directors; it shall
consider all matters brought to its attention by the officer in
charge of the Audit Division, review all reports of examination
of the Company made by any governmental agency or such
independent auditor employed for that purpose, and make such
recommendations to the Board of Directors with respect thereto or
with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and
wherever the majority of its members shall deem it to be proper
for the transaction of its business, and a majority of its
Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed
of not more than five (5) members who shall be selected by the
Board of Directors from its own members who are not officers of
the Company and who shall hold office during the pleasure of the
Board.
(B) The Compensation Committee shall in general
advise upon all matters of policy concerning the Company brought
to its attention by the management and from time to time review
the management of the Company, major organizational matters,
including salaries and employee benefits and specifically shall
administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be
called at any time by the Chairman of the Compensation Committee,
the Chairman of the Board of Directors, or the President of the
Company.
Section 5. Associate Directors
(A) Any person who has served as a director may
be elected by the Board of Directors as an associate director, to
serve during the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion
of all matters brought to the Board, with the exception that he
would have no right to vote. An associate director will be
eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active
directors.
Section 6. Absence or Disqualification of Any Member of a
Committee
(A) In the absence or disqualification of any
member of any Committee created under Article III of the By-Laws
of this Company, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in the place of
any such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall
preside at all meetings of the Board and shall have such further
authority and powers and shall perform such duties as the Board
of Directors may from time to time confer and direct. He shall
also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of
the Company.
Section 2. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed
upon him by statute or assigned to him by the Board of Directors
in the absence of the Chairman of the Board the President shall
have the powers and duties of the Chairman of the Board.
Section 3. The Chairman of the Board of Directors or the
President as designated by the Board of Directors, shall carry
into effect all legal directions of the Executive Committee and
of the Board of Directors, and shall at all times exercise
general supervision over the interest, affairs and operations of
the Company and perform all duties incident to his office.
Section 4. There may be one or more Vice Presidents,
however denominated by the Board of Directors, who may at any
time perform all the duties of the Chairman of the Board of
Directors and/or the President and such other powers and duties
as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or
the President and by the officer in charge of the department or
division to which they are assigned.
Section 5. The Secretary shall attend to the giving of
notice of meetings of the stockholders and the Board of
Directors, as well as the Committees thereof, to the keeping of
accurate minutes of all such meetings and to recording the same
in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and
mailed well in advance of the scheduled date of any other
meeting. He shall have custody of the corporate seal and shall
affix the same to any documents requiring such corporate seal and
to attest the same.
Section 6. The Treasurer shall have general supervision
over all assets and liabilities of the Company. He shall be
custodian of and responsible for all monies, funds and valuables
of the Company and for the keeping of proper records of the
evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the
expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the
Company, and perform such other duties as may be assigned to him
from time to time by the Board of Directors of the Executive
Committee.
Section 7. There may be a Controller who shall exercise
general supervision over the internal operations of the Company,
including accounting, and shall render to the Board of Directors
at appropriate times a report relating to the general condition
and internal operations of the Company.
There may be one or more subordinate accounting or
controller officers however denominated, who may perform the
duties of the Controller and such duties as may be prescribed by
the Controller.
Section 8. The officer designated by the Board of
Directors to be in charge of the Audit Division of the Company
with such title as the Board of Directors shall prescribe, shall
report to and be directly responsible only to the Board of
Directors.
There shall be an Auditor and there may be one or more
Audit Officers, however denominated, who may perform all the
duties of the Auditor and such duties as may be prescribed by the
officer in charge of the Audit Division.
Section 9. There may be one or more officers, subordinate
in rank to all Vice Presidents with such functional titles as
shall be determined from time to time by the Board of Directors,
who shall ex officio hold the office Assistant Secretary of this
Company and who may perform such duties as may be prescribed by
the officer in charge of the department or division to whom they
are assigned.
Section 10. The powers and duties of all other officers
of the Company shall be those usually pertaining to their
respective offices, subject to the direction of the Board of
Directors, the Executive Committee, Chairman of the Board of
Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the
books of the Company and a transfer book shall be kept in which
all transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature
of the President or any Vice President, however denominated by
the Board of Directors and countersigned by the Secretary or
Treasurer or an Assistant Secretary, and the seal of the
corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only
upon the books of the Company by the holder thereof or his
attorney, upon surrender of the certificate properly endorsed.
Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate
certificates of stock shall be issued only upon giving such
security as may be satisfactory to the Board of Directors or the
Executive Committee.
Section 3. The Board of Directors of the Company is
authorized to fix in advance a record date for the determination
of the stockholders entitled to notice of, and to vote at, any
meeting of stockholders and any adjournment thereof, or entitled
to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change,
conversion or exchange of capital stock, or in connection with
obtaining the consent of stockholders for any purpose, which
record date shall not be more than 60 nor less than 10 days
proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in
the following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the
calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or
any Vice President, however denominated by the Board of
Directors, shall have full power and authority to enter into,
make, sign, execute, acknowledge and/or deliver and the Secretary
or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all
deeds, conveyances, assignments, releases, contracts, agreements,
bonds, notes, mortgages and all other instruments incident to the
business of this Company or in acting as executor, administrator,
guardian, trustee, agent or in any other fiduciary or
representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in
the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of
Directors or the Executive Committee, and any and all such
instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the
Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the
Company, other than salaried officers of the Company, shall be
paid such reasonable honoraria or fees for attending meetings of
the Board of Directors as the Board of Directors may from time to
time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for
services as members of committees as the Board of Directors shall
from time to time determine and directors and associate directors
may be employed by the Company for such special services as the
Board of Directors may from time to time determine and shall be
paid for such special services so performed reasonable
compensation as may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was
or is made or is threatened to be made a party or is otherwise
involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent
of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee, fiduciary or agent
of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect
to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The
Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses
incurred in defending any proceeding in advance of its final
disposition, provided, however, that the payment of expenses
-------- -------
incurred by a Director officer in his capacity as a Director or
officer in advance of the final disposition of the proceeding
shall be made only upon receipt of an undertaking by the Director
or officer to repay all amounts advanced if it should be
ultimately determined that the Director or officer is not
entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety
days after a written claim therefor has been received by the
Corporation the claimant may file suit to recover the unpaid
amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such
claim. In any such action the Corporation shall have the burden
of proving that the claimant was not entitled to the requested
indemnification of payment of expenses under applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision
of the Charter or Act of Incorporation, these By-Laws, agreement,
vote of stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right
or protection hereunder of any person in respect of any act or
omission occurring prior to the time of such repeal or
modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or
repealed, in whole or in part, and any new By-Law or By-Laws
adopted at any regular or special meeting of the Board of
Directors by a vote of the majority of all the members of the
Board of Directors then in office.
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of
1939, as amended, Wilmington Trust Company hereby consents that
reports of examinations by Federal, State, Territorial or
District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: November 18, 1996 By: /s/ Norma P. Closs
-------------------
Name: Norma P. Closs
Title: Vice President
EXHIBIT D
NOTICE
This form is intended to assist state
nonmember banks and savings banks with state
publication requirements. It has not been
approved by any state banking authorities.
Refer to your appropriate state banking
authorities for your state publication
requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
------------------------------------ -------------------
Name of Bank City
in the State of DELAWARE , at the close of business on
------------
September 30, 1996.
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency
and coins . . . . . . . . . . . . . . . . . . 198,288
Interest-bearing balances . . . . . . . . . . . . . . 0
Held-to-maturity securities . . . . . . . . . . . . . . 489,428
Available-for-sale securities . . . . . . . . . . . . . . 783,718
Federal funds sold . . . . . . . . . . . . . . . . . . . 19,000
Securities purchased under agreements to resell . . . . . 48,500
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . 3,620,289
LESS: Allowance for loan and lease losses . . . . 49,721
LESS: Allocated transfer risk reserve . . . . . . . . . 0
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . 3,570,568
Assets held in trading accounts . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) 83,675
Other real estate owned . . . . . . . . . . . . . . . . . 4,607
Investments in unconsolidated subsidiaries and associated
companies . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Customers' liability to this bank on acceptances outstanding . 0
Intangible assets . . . . . . . . . . . . . . . . . . . . . 4,131
Other assets . . . . . . . . . . . . . . . . . . . . . . 101,592
Total assets . . . . . . . . . . . . . . . . . . . . . 5,303,592
CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . 3,457,641
Noninterest-bearing . . . . . . . . 740,731
Interest-bearing. . . . . . . . . . 2,716,910
Federal funds purchased . . . . . . . . . . . . . . . . . 135,889
Securities sold under agreements to repurchase . . . . 213,617
Demand notes issued to the U.S. Treasury . . . . . . . . 94,999
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money: . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . 844,000
With original maturity of more than one year . . . 28,000
Mortgage indebtedness and obligations under capitalized leases 0
Bank's liability on acceptances executed and outstanding . . . 0
Subordinated notes and debentures . . . . . . . . . . . . . . . 0
Other liabilities . . . . . . . . . . . . . . . . . . . 103,818
Total liabilities. . . . . . . . . . . . . . . . . . 4,877,964
Limited-life preferred stock and related surplus . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . 62,119
Undivided profits and capital reserves . . . . . . . . . 363,705
Net unrealized holding gains (losses) on
available-for-sale securities . . . . . . . . . . . . (696)
Total equity capital . . . . . . . . . . . . . . . . . . 425,628
Total liabilities, limited-life preferred stock,
and equity capital . . . . . . . . . . . . . . . . . . 5,303,592
Exhibit 25(a)-6
Registration Nos.
=================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2) X
----
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer
identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
THE WASHINGTON WATER POWER COMPANY
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer
identification no.)
1411 East Mission Avenue
Spokane, Washington
(Address of principal 99202
executive offices) (Zip Code)
Guarantee with respect to Washington Water Power Capital II
Trust Originated Preferred Securities and The Washington
Water Power Company obligations with respect to such Preferred
Securities under an Indenture and an Amended and Restated
Declaraction of Trust Agreement
(Title of the indenture securities)
=================================================================
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee,
describe each affiliation:
Based upon an examination of the books and records
of the trustee and upon information furnished by the
obligor, the obligor is not an affiliate of the
trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this
Statement of Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company,
which includes the certificate of authority of
Wilmington Trust Company to commence business and
the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by
Section 321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of
Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, Wilmington Trust
Company, a corporation organized and existing under the
laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City
of Wilmington and State of Delaware on the 18th day of
November, 1996.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:Christopher L. Kaiser By:/s/ Norma P. Closs
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Assistant Secretary Name: Norma P. Closs
Title: Vice President
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act
of the General Assembly of the State of Delaware, entitled "An
Act to Incorporate the Delaware Guarantee and Trust Company",
approved March 2, A.D. 1901, and the name of which company was
changed to "WILMINGTON TRUST COMPANY" by an amendment filed in
the Office of the Secretary of State on March 18, A.D. 1903, and
the Charter or Act of Incorporation of which company has been
from time to time amended and changed by merger agreements
pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend
its Charter or Act of Incorporation so that the same as so
altered and amended shall in its entirety read as follows:
FIRST: The name of this corporation is WILMINGTON TRUST
COMPANY.
SECOND: The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of
Wilmington, County of New Castle; the name of its resident
agent is WILMINGTON TRUST COMPANY whose address is Rodney
Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch
offices in the City of Newark, New Castle County, Delaware,
the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New
Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open,
maintain and operate branch offices at Ninth and Shipley
Streets, 418 Delaware Avenue, 2120 Market Street, and 3605
Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the
agency or agencies of the government of the State of
Delaware empowered to confer such authority.
THIRD: (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on
by this Corporation are to do any or all of the things
herein mentioned as fully and to the same extent as natural
persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any
Court of law or equity and to make and use a common
seal, and alter the seal at pleasure, to hold,
purchase, convey, mortgage or otherwise deal in real
and personal estate and property, and to appoint such
officers and agents as the business of the Corporation
shall require, to make by-laws not inconsistent with
the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences
of debt, to receive deposits of money, or securities
for money, to buy gold and silver bullion and foreign
coins, to buy and sell bills of exchange, and generally
to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation
which are proper or necessary for the transaction of
the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or
any estate or interests therein, and to guarantee the
holder of such property, real or personal, against any
claim or claims, adverse to his interest therein, and
to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management
of funds, and the purchase, sale, management and
disposal of property of all descriptions, and to
prepare and execute all papers which may be necessary
or proper in such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers
of every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money,
jewelry, plate, deeds, bonds and any and all other
personal property of every sort and kind, from
executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and
individuals, and from all corporations whether state,
municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking
fund therefor on such terms as may be agreed upon
between the two parties, and in like manner may act as
Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust,
mortgage, bond or other instrument issued by any state,
municipality, body politic, corporation, association or
person, either alone or in conjunction with any other
person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect
of any contract or agreement, and the fidelity of
persons holding places of responsibility or trust; to
become surety for any person, or persons, for the
faithful performance of any trust, office, duty,
contract or agreement, either by itself or in
conjunction with any other person, or persons,
corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any
court of record within the State of Delaware or
elsewhere, or which may now or hereafter be required by
any law, judge, officer or court in the State of
Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and
all estates and property, real, personal or mixed, and
to be appointed as such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the
State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any
other trust capacity, it shall not be required to give
bond with surety, but its capital stock shall be taken
and held as security for the performance of the duties
devolving upon it by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake
or be called upon to perform, or for the assumption of
any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds,
mortgages, debentures, shares of capital stock, and
other securities, obligations, contracts and evidences
of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware,
or of the Government of the United States, or of any
state, territory, colony, or possession thereof, or of
any foreign government or country; to receive, collect,
receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in
respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and
other property, any and all the rights, powers and
privileges of individual owners thereof, including the
right to vote thereon; to invest and deal in and with
any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and
proper, and from time to time to vary or realize such
investments; to issue bonds and secure the same by
pledges or deeds of trust or mortgages of or upon the
whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and
when the Board of Directors shall determine, and in the
promotion of its said corporate business of investment
and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any
name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have
the following powers:
(1) To do any or all of the things herein set forth,
to the same extent as natural persons might or could
do, and in any part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of
the assets and liabilities of any person, firm,
association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to
hold or in any manner to dispose of the whole or any
part of the property so purchased; to conduct in any
lawful manner the whole or any part of any business so
acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of
such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out
contracts of every kind with any person, firm,
association or corporation, and, without limit as to
amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other
negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or
any of its operations and businesses, without
restriction to the same extent as natural persons might
or could do, to purchase or otherwise acquire, to hold,
own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and
description, in any State, District, Territory or
Colony of the United States, and in any foreign country
or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this
paragraph shall (except where otherwise expressed in
said paragraph) be nowise limited or restricted by
reference to or inference from the terms of any other
clause of this or any other paragraph in this charter,
but that the objects, purposes and powers specified in
each of the clauses of this paragraph shall be regarded
as independent objects, purposes and powers.
FOURTH: (a) The total number of shares of all classes of
stock which the Corporation shall have authority to issue is
forty-one million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock,
par value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock,
par value $1.00 per share (hereinafter referred to as
"Common Stock").
(b) Shares of Preferred Stock may be issued from time to
time in one or more series as may from time to time be
determined by the Board of Directors each of said series to
be distinctly designated. All shares of any one series of
Preferred Stock shall be alike in every particular, except
that there may be different dates from which dividends, if
any, thereon shall be cumulative, if made cumulative. The
voting powers and the preferences and relative,
participating, optional and other special rights of each
such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any
and all other series at any time outstanding; and, subject
to the provisions of subparagraph 1 of Paragraph (c) of this
Article FOURTH, the Board of Directors of the Corporation is
hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a
particular series of Preferred Stock, the voting powers and
the designations, preferences and relative, optional and
other special rights, and the qualifications, limitations
and restrictions of such series, including, but without
limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or
decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of
the Board of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred
Stock of such series shall be paid, the extent of the
preference or relation, if any, of such dividends to
the dividends payable on any other class or classes, or
series of the same or other class of stock and whether
such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred
Stock of such series to convert the same into or
exchange the same for, shares of any other class or
classes or of any series of the same or any other class
or classes of stock of the Corporation and the terms
and conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series
shall be subject to redemption, and the redemption
price or prices and the time or times at which, and the
terms and conditions on which, Preferred Stock of such
series may be redeemed.
(5) The rights, if any, of the holders of Preferred
Stock of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or
sale of assets, dissolution or winding-up, of the
Corporation.
(6) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the
Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting
the generality of the foregoing include the right,
voting as a series or by itself or together with other
series of Preferred Stock or all series of Preferred
Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the
payment of dividends on any one or more series of
Preferred Stock or under such circumstances and on such
conditions as the Board of Directors may determine.
(c) (1) After the requirements with respect to
preferential dividends on the Preferred Stock (fixed in
accordance with the provisions of section (b) of this
Article FOURTH), if any, shall have been met and after the
Corporation shall have complied with all the requirements,
if any, with respect to the setting aside of sums as sinking
funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this
Article FOURTH), and subject further to any conditions which
may be fixed in accordance with the provisions of section
(b) of this Article FOURTH, then and not otherwise the
holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board
of Directors.
(2) After distribution in full of the preferential
amount, if any, (fixed in accordance with the
provisions of section (b) of this Article FOURTH), to
be distributed to the holders of Preferred Stock in the
event of voluntary or involuntary liquidation,
distribution or sale of assets, dissolution or winding-
up, of the Corporation, the holders of the Common Stock
shall be entitled to receive all of the remaining
assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to
stockholders ratably in proportion to the number of
shares of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by
the provisions of such resolution or resolutions as may
be adopted by the Board of Directors pursuant to
section (b) of this Article FOURTH, each holder of
Common Stock shall have one vote in respect of each
share of Common Stock held on all matters voted upon by
the stockholders.
(d) No holder of any of the shares of any class or series
of stock or of options, warrants or other rights to purchase
shares of any class or series of stock or of other
securities of the Corporation shall have any preemptive
right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or
series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures
or other securities convertible into or exchangeable for
stock of the Corporation of any class or series, or carrying
any right to purchase stock of any class or series, but any
such unissued stock, additional authorized issue of shares
of any class or series of stock or securities convertible
into or exchangeable for stock, or carrying any right to
purchase stock, may be issued and disposed of pursuant to
resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or
others, and upon such terms as may be deemed advisable by
the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each
series of Preferred Stock in relation to the relative
powers, preferences and rights of each other series of
Preferred Stock shall, in each case, be as fixed from time
to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section
(b) of this Article FOURTH and the consent, by class or
series vote or otherwise, of the holders of such of the
series of Preferred Stock as are from time to time
outstanding shall not be required for the issuance by the
Board of Directors of any other series of Preferred Stock
whether or not the powers, preferences and rights of such
other series shall be fixed by the Board of Directors as
senior to, or on a parity with, the powers, preferences and
rights of such outstanding series, or any of them; provided,
however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred
Stock adopted pursuant to section (b) of this Article FOURTH
that the consent of the holders of a majority (or such
greater proportion as shall be therein fixed) of the
outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of
Preferred Stock.
(f) Subject to the provisions of section (e), shares of any
series of Preferred Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine
and on such terms and for such consideration as shall be
fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time
as the Board of Directors of the Corporation shall determine
and on such terms and for such consideration as shall be
fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be
increased or decreased from time to time by the affirmative
vote of the holders of a majority of the stock of the
Corporation entitled to vote thereon.
FIFTH: (a) The business and affairs of the Corporation
shall be conducted and managed by a Board of Directors. The
number of directors constituting the entire Board shall be
not less than five nor more than twenty-five as fixed from
time to time by vote of a majority of the whole Board,
provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the
time in office, and provided further, that the number of
directors constituting the whole Board shall be twenty-four
until otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three
classes, as nearly equal in number as the then total number
of directors constituting the whole Board permits, with the
term of office of one class expiring each year. At the
annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term
expiring at the next succeeding annual meeting, directors of
the second class shall be elected to hold office for a term
expiring at the second succeeding annual meeting and
directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting.
Any vacancies in the Board of Directors for any reason, and
any newly created directorships resulting from any increase
in the directors, may be filled by the Board of Directors,
acting by a majority of the directors then in office,
although less than a quorum, and any directors so chosen
shall hold office until the next annual election of
directors. At such election, the stockholders shall elect a
successor to such director to hold office until the next
election of the class for which such director shall have
been chosen and until his successor shall be elected and
qualified. No decrease in the number of directors shall
shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or
the By-Laws of the Corporation), any director or the entire
Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative vote of the
holders of two-thirds or more of the outstanding shares of
capital stock of the Corporation entitled to vote generally
in the election of directors (considered for this purpose as
one class) cast at a meeting of the stockholders called for
that purpose.
(d) Nominations for the election of directors may be made
by the Board of Directors or by any stockholder entitled to
vote for the election of directors. Such nominations shall
be made by notice in writing, delivered or mailed by first
class United States mail, postage prepaid, to the Secretary
of the Corporation not less than 14 days nor more than 50
days prior to any meeting of the stockholders called for the
election of directors; provided, however, that if less than
21 days' notice of the meeting is given to stockholders,
such written notice shall be delivered or mailed, as
prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which
notice of the meeting was mailed to stockholders. Notice of
nominations which are proposed by the Board of Directors
shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i)
the name, age, business address and, if known, residence
address of each nominee proposed in such notice, (ii) the
principal occupation or employment of such nominee and (iii)
the number of shares of stock of the Corporation which are
beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was
not made in accordance with the foregoing procedure, and if
he should so determine, he shall so declare to the meeting
and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at
any annual or special meeting of stockholders of the
Corporation may be taken without a meeting, and the power of
stockholders to consent in writing, without a meeting, to
the taking of any action is specifically denied.
SIXTH: The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from
time to time find necessary or proper.
SEVENTH: The Corporation hereby created is hereby given the
same powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act
Providing a General Corporation Law", approved March 10,
1899, as from time to time amended.
EIGHTH: This Act shall be deemed and taken to be a private
Act.
NINTH: This Corporation is to have perpetual existence.
TENTH: The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their
number to constitute an Executive Committee, which
Committee, to the extent provided in said resolution, or in
the By-Laws of the Company, shall have and may exercise all
of the powers of the Board of Directors in the management of
the business and affairs of the Corporation, and shall have
power to authorize the seal of the Corporation to be affixed
to all papers which may require it.
ELEVENTH: The private property of the stockholders shall not
be liable for the payment of corporate debts to any extent
whatever.
TWELFTH: The Corporation may transact business in any part
of the world.
THIRTEENTH: The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of
the Corporation by a vote of the majority of the entire
Board. The stockholders may make, alter or repeal any By-
Law whether or not adopted by them, provided however, that
any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-
thirds or more of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election
of directors (considered for this purpose as one class).
FOURTEENTH: Meetings of the Directors may be held outside of
the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the
books of the Company outside of the State of Delaware at
such places as may be from time to time designated by them.
FIFTEENTH: (a) In addition to any affirmative vote required
by law, and except as otherwise expressly provided in
sections (b) and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or
any Subsidiary (as hereinafter defined) with or into
(i) any Interested Stockholder (as hereinafter defined)
or (ii) any other corporation (whether or not itself an
Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter
defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a
series of related transactions) to or with any
Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation
or any Subsidiary having an aggregate fair market value
of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or
any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for
cash, securities or other property (or a combination
thereof) having an aggregate fair market value of
$1,000,000 or more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder, or any
Affiliate of any Interested Stockholder,
shall require the affirmative vote of the holders of at least
two-thirds of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors, considered for the purpose of this Article FIFTEENTH
as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required,
or that some lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.
(2) The term "business combination" as used in
this Article FIFTEENTH shall mean any transaction
which is referred to any one or more of clauses
(A) through (E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article
FIFTEENTH shall not be applicable to any particular
business combination and such business combination
shall require only such affirmative vote as is required
by law and any other provisions of the Charter or Act
of Incorporation of By-Laws if such business
combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation
or other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation
or any Subsidiary) who or which as of the record date for
the determination of stockholders entitled to notice of and
to vote on such business combination, or immediately prior
to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly,
of more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial
owner, directly or indirectly, of not less than 10% of
the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in
any share of capital stock of the Corporation which
were at any time within two years prior thereto
beneficially owned by any Interested Stockholder, and
such assignment or succession shall have occurred in
the course of a transaction or series of transactions
not involving a public offering within the meaning of
the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting
Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own,
directly or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or
options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or
indirectly, by any other person with which such first
mentioned person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of
any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares
deemed owned through application of paragraph (3) above but
shall not include any other Voting Shares which may be
issuable pursuant to any agreement, or upon exercise of
conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of
1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a
majority of any class of equity security (as defined in Rule
3a11-1 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect in December
31, 1981) is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Investment Stockholder set forth in paragraph
(2) of this section (c), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and
duty to determine for the purposes of this Article
FIFTEENTH on the basis of information known to them,
(1) the number of Voting Shares beneficially owned by
any person (2) whether a person is an Affiliate or
Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as
to the matters referred to in paragraph (3) of section
(c), or (4) whether the assets subject to any business
combination or the consideration received for the
issuance or transfer of securities by the Corporation,
or any Subsidiary has an aggregate fair market value of
$1,00,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall
be construed to relieve any Interested Stockholder from
any fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this
Charter or Act of Incorporation or the By-Laws of the
Corporation (and in addition to any other vote that may be
required by law, this Charter or Act of Incorporation by the
By-Laws), the affirmative vote of the holders of at least
two-thirds of the outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election
of directors (considered for this purpose as one class)
shall be required to amend, alter or repeal any provision of
Articles FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this
Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not
be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a Director,
except to the extent such exemption from liability or
limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter
be amended.
(b) Any repeal or modification of the foregoing
paragraph shall not adversely affect any right or
protection of a Director of the Corporation existing
hereunder with respect to any act or omission occurring
prior to the time of such repeal or modification."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON FEBRUARY 21, 1991
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held
on the third Thursday in April each year at the principal office
at the Company or at such other date, time, or place as may be
designated by resolution by the Board of Directors.
Section 2. Special meetings of all stockholders may be
called at any time by the Board of Directors, the Chairman of the
Board or the President.
Section 3. Notice of all meetings of the stockholders shall
be given by mailing to each stockholder at least ten (10 days
before said meeting, at his last known address, a written or
printed notice fixing the time and place of such meeting.
Section 4. A majority in the amount of the capital stock of
the Company issued and outstanding on the record date, as herein
determined, shall constitute a quorum at all meetings of
stockholders for the transaction of any business, but the holders
of a small number of shares may adjourn, from time to time,
without further notice, until a quorum is secured. At each
annual or special meeting of stockholders, each stockholder shall
be entitled to one vote, either in person or by proxy, for each
shares of stock registered in the stockholder's name on the books
of the Company on the record date for any such meeting as
determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of
Directors shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-
two (72) years shall be nominated for election to the Board of
Directors of the Company, provided, however, that this limitation
shall not apply to any person who was serving as director of the
Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold
office for three years or until their successors are elected and
qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. Regular meetings of the Board of Directors shall
be held on the third Thursday of each month at the principal
office of the Company, or at such other place and time as may be
designated by the Board of Directors, the Chairman of the Board,
or the President.
Section 6. Special meetings of the Board of Directors may
be called at any time by the Chairman of the Board of Directors
or by the President, and shall be called upon the written request
of a majority of the directors.
Section 7. A majority of the directors elected and
qualified shall be necessary to constitute a quorum for the
transaction of business at any meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each
director of any special meeting of the Board of Directors, and of
any change in the time or place of any regular meeting, stating
the time and place of such meeting, which shall be mailed not
less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board
of Directors, although less than a quorum, shall have the right
to elect the successor who shall hold office for the remainder of
the full term of the class of directors in which the vacancy
occurred, and until such director's successor shall have been
duly elected and qualified.
Section 10. The Board of Directors at its first meeting
after its election by the stockholders shall appoint an Executive
Committee, a Trust Committee, an Audit Committee and a
Compensation Committee, and shall elect from its own members a
Chairman of the Board of Directors and a President who may be the
same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person,
may appoint at any time such other committees and elect or
appoint such other officers as it may deem advisable. The Board
of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove,
with or without cause, any member of any Committee appointed by
it or any associate director or officer elected by it and may
appoint or elect his successor.
Section 12. The Board of Directors may designate an officer
to be in charge of such of the departments or division of the
Company as it may deem advisable.
ARTICLE III
COMMITTEES
Section I. Executive Committee
(A) The Executive Committee shall be composed
of not more than nine members who shall be selected by the Board
of Directors from its own members and who shall hold office
during the pleasure of the Board.
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to
transact all business for and in behalf of the Company that may
be brought before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at
least once a week in each week the Board is not regularly
scheduled to meet. A majority of its members shall be necessary
to constitute a quorum for the transaction of business. Special
meetings of the Executive Committee may be held at any time when
a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors
at its next meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the
Company, and shall direct the disposal of the same, in accordance
with such rules and regulations as the Board of Directors from
time to time make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the
affairs and business of the Company by its directors and officers
as contemplated by these By-Laws any two available members of the
Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company
in accordance with the provisions of Article III of these By-
Laws; and if less than three members of the Trust Committee is
constituted immediately prior to such disaster shall be available
for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to
the Trust Committee under Article III Section 2 hereof. In the
event of the unavailability, at such time, of a minimum of two
members of such Executive Committee, any three available
directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company
in accordance with the foregoing provisions of this Section.
This By-Law shall be subject to implementation by Resolutions of
the Board of Directors presently existing or hereafter passed
from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are
contrary to the provisions of this Section or to the provisions
of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct
and management of its affairs and business under all of the other
provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of
not more than thirteen members who shall be selected by the Board
of Directors, a majority of whom shall be members of the Board of
Directors and who shall hold office during the pleasure of the
Board.
(B) The Trust Committee shall have general
supervision over the Trust Department and the investment of trust
funds, in all matters, however, being subject to the approval of
the Board of Directors.
(C) The Trust Committee shall meet at the
principal office of the Company or elsewhere in its discretion at
least once a month. A majority of its members shall be necessary
to constitute a quorum for the transaction of business. Special
meetings of the Trust Committee may be held at any time when a
quorum is present.
(D) Minutes of each meeting of the Trust
Committee shall be kept and promptly submitted to the Board of
Directors.
(E) The Trust Committee shall have the power to
appoint Committees and/or designate officers or employees of the
Company to whom supervision over the investment of trust funds
may be delegated when the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of
five members who shall be selected by the Board of Directors from
its own members, none of whom shall be an officer of the Company,
and shall hold office at the pleasure of the Board.
(B) The Audit Committee shall have general
supervision over the Audit Division in all matters however
subject to the approval of the Board of Directors; it shall
consider all matters brought to its attention by the officer in
charge of the Audit Division, review all reports of examination
of the Company made by any governmental agency or such
independent auditor employed for that purpose, and make such
recommendations to the Board of Directors with respect thereto or
with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and
wherever the majority of its members shall deem it to be proper
for the transaction of its business, and a majority of its
Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be
composed of not more than five (5) members who shall be selected
by the Board of Directors from its own members who are not
officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general
advise upon all matters of policy concerning the Company brought
to its attention by the management and from time to time review
the management of the Company, major organizational matters,
including salaries and employee benefits and specifically shall
administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may
be called at any time by the Chairman of the Compensation
Committee, the Chairman of the Board of Directors, or the
President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may
be elected by the Board of Directors as an associate director, to
serve during the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion
of all matters brought to the Board, with the exception that he
would have no right to vote. An associate director will be
eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active
directors.
Section 6. Absence or Disqualification of Any Member of a
Committee
(A) In the absence or disqualification of any
member of any Committee created under Article III of the By-Laws
of this Company, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in the place of
any such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall
preside at all meetings of the Board and shall have such further
authority and powers and shall perform such duties as the Board
of Directors may from time to time confer and direct. He shall
also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of
the Company.
Section 2. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed
upon him by statute or assigned to him by the Board of Directors
in the absence of the Chairman of the Board the President shall
have the powers and duties of the Chairman of the Board.
Section 3. The Chairman of the Board of Directors or the
President as designated by the Board of Directors, shall carry
into effect all legal directions of the Executive Committee and
of the Board of Directors, and shall at all times exercise
general supervision over the interest, affairs and operations of
the Company and perform all duties incident to his office.
Section 4. There may be one or more Vice Presidents,
however denominated by the Board of Directors, who may at any
time perform all the duties of the Chairman of the Board of
Directors and/or the President and such other powers and duties
as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or
the President and by the officer in charge of the department or
division to which they are assigned.
Section 5. The Secretary shall attend to the giving of
notice of meetings of the stockholders and the Board of
Directors, as well as the Committees thereof, to the keeping of
accurate minutes of all such meetings and to recording the same
in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and
mailed well in advance of the scheduled date of any other
meeting. He shall have custody of the corporate seal and shall
affix the same to any documents requiring such corporate seal and
to attest the same.
Section 6. The Treasurer shall have general supervision
over all assets and liabilities of the Company. He shall be
custodian of and responsible for all monies, funds and valuables
of the Company and for the keeping of proper records of the
evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the
expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the
Company, and perform such other duties as may be assigned to him
from time to time by the Board of Directors of the Executive
Committee.
Section 7. There may be a Controller who shall exercise
general supervision over the internal operations of the Company,
including accounting, and shall render to the Board of Directors
at appropriate times a report relating to the general condition
and internal operations of the Company.
There may be one or more subordinate accounting or
controller officers however denominated, who may perform the
duties of the Controller and such duties as may be prescribed by
the Controller.
Section 8. The officer designated by the Board of Directors
to be in charge of the Audit Division of the Company with such
title as the Board of Directors shall prescribe, shall report to
and be directly responsible only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of
the Auditor and such duties as may be prescribed by the officer
in charge of the Audit Division.
Section 9. There may be one or more officers, subordinate
in rank to all Vice Presidents with such functional titles as
shall be determined from time to time by the Board of Directors,
who shall ex officio hold the office Assistant Secretary of this
Company and who may perform such duties as may be prescribed by
the officer in charge of the department or division to whom they
are assigned.
Section 10. The powers and duties of all other officers of
the Company shall be those usually pertaining to their respective
offices, subject to the direction of the Board of Directors, the
Executive Committee, Chairman of the Board of Directors or the
President and the officer in charge of the department or division
to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the
books of the Company and a transfer book shall be kept in which
all transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of
the President or any Vice President, however denominated by the
Board of Directors and countersigned by the Secretary or
Treasurer or an Assistant Secretary, and the seal of the
corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only
upon the books of the Company by the holder thereof or his
attorney, upon surrender of the certificate properly endorsed.
Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate
certificates of stock shall be issued only upon giving such
security as may be satisfactory to the Board of Directors or the
Executive Committee.
Section 3. The Board of Directors of the Company is
authorized to fix in advance a record date for the determination
of the stockholders entitled to notice of, and to vote at, any
meeting of stockholders and any adjournment thereof, or entitled
to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change,
conversion or exchange of capital stock, or in connection with
obtaining the consent of stockholders for any purpose, which
record date shall not be more than 60 nor less than 10 days
proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in
the following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the
calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any
Vice President, however denominated by the Board of Directors,
shall have full power and authority to enter into, make, sign,
execute, acknowledge and/or deliver and the Secretary or any
Assistant Secretary shall have full power and authority to attest
and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds,
notes, mortgages and all other instruments incident to the
business of this Company or in acting as executor, administrator,
guardian, trustee, agent or in any other fiduciary or
representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in
the State of Delaware, or elsewhere, without any specific
authority, ratification, approval or confirmation by the Board of
Directors or the Executive Committee, and any and all such
instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the
Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the
Company, other than salaried officers of the Company, shall be
paid such reasonable honoraria or fees for attending meetings of
the Board of Directors as the Board of Directors may from time to
time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for
services as members of committees as the Board of Directors shall
from time to time determine and directors and associate directors
may be employed by the Company for such special services as the
Board of Directors may from time to time determine and shall be
paid for such special services so performed reasonable
compensation as may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was
or is made or is threatened to be made a party or is otherwise
involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent
of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee, fiduciary or agent
of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect
to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The
Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses
incurred in defending any proceeding in advance of its final
disposition, provided, however, that the payment of expenses
-------- -------
incurred by a Director officer in his capacity as a Director or
officer in advance of the final disposition of the proceeding
shall be made only upon receipt of an undertaking by the Director
or officer to repay all amounts advanced if it should be
ultimately determined that the Director or officer is not
entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment
of expenses, under this Article X is not paid in full within
ninety days after a written claim therefor has been received by
the Corporation the claimant may file suit to recover the unpaid
amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such
claim. In any such action the Corporation shall have the burden
of proving that the claimant was not entitled to the requested
indemnification of payment of expenses under applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision
of the Charter or Act of Incorporation, these By-Laws, agreement,
vote of stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right
or protection hereunder of any person in respect of any act or
omission occurring prior to the time of such repeal or
modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or
repealed, in whole or in part, and any new By-Law or By-Laws
adopted at any regular or special meeting of the Board of
Directors by a vote of the majority of all the members of the
Board of Directors then in office.
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of
1939, as amended, Wilmington Trust Company hereby consents that
reports of examinations by Federal, State, Territorial or
District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: November 18, 1996 By: /s/ Norma P. Closs
-------------------
Name: Norma P. Closs
Title: Vice President
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been
approved by any state banking authorities. Refer to your
appropriate state banking authorities for your state publication
requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
----------------------------------------- --------------------
Name of Bank City
in the State of DELAWARE , at the close of business on
------------
September 30, 1996.
ASSETS
Thousands of
dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and
coins . . . . . . . . . . . . . . . . . . . . . . 198,288
Interest-bearing balances . . . . . . . . . . . . . . . . 0
Held-to-maturity securities . . . . . . . . . . . . . . . 489,428
Available-for-sale securities . . . . . . . . . . . . . . 783,718
Federal funds sold . . . . . . . . . . . . . . . . . . . 19,000
Securities purchased under agreements to resell . . . . . 48,500
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . 3,620,289
LESS: Allowance for loan and lease losses . . . . . 49,721
LESS: Allocated transfer risk reserve . . . . . . . . . . 0
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . 3,570,568
Assets held in trading accounts . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) 83,675
Other real estate owned . . . . . . . . . . . . . . . . . . 4,607
Investments in unconsolidated subsidiaries and associated
companies . . . . . . . . . . . . . . . . . . . . . . . . . 85
Customers' liability to this bank on acceptances outstanding . 0
Intangible assets . . . . . . . . . . . . . . . . . . . . . 4,131
Other assets . . . . . . . . . . . . . . . . . . . . . . 101,592
Total assets . . . . . . . . . . . . . . . . . . . . . 5,303,592
CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . 3,457,641
Noninterest-bearing . . . . . . . . . 740,731
Interest-bearing . . . . . . . . . 2,716,910
Federal funds purchased . . . . . . . . . . . . . . . . . 135,889
Securities sold under agreements to repurchase . . . . . 213,617
Demand notes issued to the U.S. Treasury . . . . . . . . 94,999
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money: . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . 844,000
With original maturity of more than one year . . . . 28,000
Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Bank's liability on acceptances executed and outstanding . . . 0
Subordinated notes and debentures . . . . . . . . . . . . . . . 0
Other liabilities . . . . . . . . . . . . . . . . . . . . 103,818
Total liabilities . . . . . . . . . . . . . . . . . . . 4,877,964
Limited-life preferred stock and related surplus . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . 62,119
Undivided profits and capital reserves . . . . . . . . . 363,705
Net unrealized holding gains (losses) on available-
for-sale securities . . . . . . . . . . . . . . . . . . . (696)
Total equity capital . . . . . . . . . . . . . . . . . . 425,628
Total liabilities, limited-life preferred stock, and
equity capital . . . . . . . . . . . . . . . . . . . 5,303,592
EXHIBIT 25(a)-7
Registration Nos.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
----
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification
no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
THE WASHINGTON WATER POWER COMPANY
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer identification no.)
1411 East Mission Avenue
Spokane, Washington 99202
(Address of principal executive offices) (Zip Code)
Guarantee with respect to Washington Water Power Capital III
Trust Originated Preferred Securities and The Washington
Water Power Company obligations with respect to such Preferred Securities
under an Indenture and an Amended and Restated
Declaraction of Trust Agreement
(Title of the indenture securities)
--------------------------------------------------------------------------
--------------------------------------------------------------------------
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b)
of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, Wilmington Trust Company, a corporation
organized and existing under the laws of Delaware, has duly caused this
Statement of Eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Wilmington and State of
Delaware on the 18th day of November, 1996.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ Christopher L. Kaiser By:/s/ Norma P. Closs
------------------------- ------------------
Assistant Secretary Name: Norma P. Closs
Title: Vice President
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of
the General Assembly of the State of Delaware, entitled "An Act to
Incorporate the Delaware Guarantee and Trust Company", approved March 2,
A.D. 1901, and the name of which company was changed to "WILMINGTON TRUST
COMPANY" by an amendment filed in the Office of the Secretary of State on
March 18, A.D. 1903, and the Charter or Act of Incorporation of which
company has been from time to time amended and changed by merger agreements
pursuant to the corporation law for state banks and trust companies of the
State of Delaware, does hereby alter and amend its Charter or Act of
Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST
COMPANY.
SECOND: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is
WILMINGTON TRUST COMPANY whose address is Rodney Square North,
in said City. In addition to such principal office, the said
corporation maintains and operates branch offices in the City
of Newark, New Castle County, Delaware, the Town of Newport,
New Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at
Milford Cross Roads, New Castle County, Delaware, and shall be
empowered to open, maintain and operate branch offices at Ninth
and Shipley Streets, 418 Delaware Avenue, 2120 Market Street,
and 3605 Market Street, all in the City of Wilmington, New
Castle County, Delaware, and such other branch offices or
places of business as may be authorized from time to time by
the agency or agencies of the government of the State of
Delaware empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and
purposes proposed to be transacted, promoted or carried on by
this Corporation are to do any or all of the things herein
mentioned as fully and to the same extent as natural persons
might or could do and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court
of law or equity and to make and use a common seal, and
alter the seal at pleasure, to hold, purchase, convey,
mortgage or otherwise deal in real and personal estate and
property, and to appoint such officers and agents as the
business of the Corporation shall require, to make by-laws
not inconsistent with the Constitution or laws of the
United States or of this State, to discount bills, notes or
other evidences of debt, to receive deposits of money, or
securities for money, to buy gold and silver bullion and
foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers,
rights, privileges and franchises incident to a corporation
which are proper or necessary for the transaction of the
business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any
estate or interests therein, and to guarantee the holder of
such property, real or personal, against any claim or
claims, adverse to his interest therein, and to prepare and
give certificates of title for any lands or premises in the
State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management of
funds, and the purchase, sale, management and disposal of
property of all descriptions, and to prepare and execute
all papers which may be necessary or proper in such
business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money,
jewelry, plate, deeds, bonds and any and all other personal
property of every sort and kind, from executors,
administrators, guardians, public officers, courts,
receivers, assignees, trustees, and from all fiduciaries,
and from all other persons and individuals, and from all
corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other instrument issued by any state, municipality,
body politic, corporation, association or person, either
alone or in conjunction with any other person or persons,
corporation or corporations.
(8) To guarantee the validity, performance or effect of
any contract or agreement, and the fidelity of persons
holding places of responsibility or trust; to become surety
for any person, or persons, for the faithful performance of
any trust, office, duty, contract or agreement, either by
itself or in conjunction with any other person, or persons,
corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment,
suit, order, or decree to be entered in any court of record
within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or
court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity in the receiving,
holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as
such trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and
whenever this Corporation is so appointed by any person,
corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or
in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken
and held as security for the performance of the duties
devolving upon it by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake or
be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of
any private, public or municipal corporation within and
without the State of Delaware, or of the Government of the
United States, or of any state, territory, colony, or
possession thereof, or of any foreign government or
country; to receive, collect, receipt for, and dispose of
interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of
indebtedness and other property held and owned by it, and
to exercise in respect of all such bonds, mortgages,
debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other
property, any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys
of the Corporation upon such securities and in such manner
as it may think fit and proper, and from time to time to
vary or realize such investments; to issue bonds and secure
the same by pledges or deeds of trust or mortgages of or
upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and
when the Board of Directors shall determine, and in the
promotion of its said corporate business of investment and
to the extent authorized by law, to lease, purchase, hold,
sell, assign, transfer, pledge, mortgage and convey real
and personal property of any name and nature and any estate
or interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have
the following powers:
(1) To do any or all of the things herein set forth, to
the same extent as natural persons might or could do, and
in any part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association or
corporation, and to pay for the same in cash, stock of this
Corporation, bonds or otherwise; to hold or in any manner
to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any
part of any business so acquired, and to exercise all the
powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts
of every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw,
make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of
its operations and businesses, without restriction to the
same extent as natural persons might or could do, to
purchase or otherwise acquire, to hold, own, to mortgage,
sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and in
any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said paragraph)
be nowise limited or restricted by reference to or
inference from the terms of any other clause of this or any
other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects,
purposes and powers.
FOURTH: - (a) The total number of shares of all classes of
stock which the Corporation shall have authority to issue is
forty-one million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par
value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par
value $1.00 per share (hereinafter referred to as "Common
Stock").
(b) Shares of Preferred Stock may be issued from time to time
in one or more series as may from time to time be determined by
the Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock
shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other
special rights of each such series, and the qualifications,
limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and,
subject to the provisions of subparagraph 1 of Paragraph (c) of
this Article FOURTH, the Board of Directors of the Corporation
is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a
particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other
special rights, and the qualifications, limitations and
restrictions of such series, including, but without limiting
the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of
shares of Preferred Stock which shall constitute such
series, which number may be increased (except where
otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then
outstanding) from time to time by like action of the Board
of Directors;
(2) The rate and times at which, and the terms and
conditions on which, dividends, if any, on Preferred Stock
of such series shall be paid, the extent of the preference
or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the
same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock
of such series to convert the same into or exchange the
same for, shares of any other class or classes or of any
series of the same or any other class or classes of stock
of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be
subject to redemption, and the redemption price or prices
and the time or times at which, and the terms and
conditions on which, Preferred Stock of such series may be
redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale of
assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the Preferred
Stock of such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as a
series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a
class, to elect one or more directors of the Corporation if
there shall have been a default in the payment of dividends
on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article FOURTH), if any,
shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to the
setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of
section (b) of this Article FOURTH), and subject further to any
conditions which may be fixed in accordance with the provisions
of section (b) of this Article FOURTH, then and not otherwise
the holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of
Directors.
(2) After distribution in full of the preferential amount,
if any, (fixed in accordance with the provisions of section
(b) of this Article FOURTH), to be distributed to the
holders of Preferred Stock in the event of voluntary or
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders
of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b)
of this Article FOURTH, each holder of Common Stock shall
have one vote in respect of each share of Common Stock held
on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase
shares of any class or series of stock or of other securities
of the Corporation shall have any preemptive right to purchase
or subscribe for any unissued stock of any class or series or
any additional shares of any class or series to be issued by
reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into
or exchangeable for stock of the Corporation of any class or
series, or carrying any right to purchase stock of any class or
series, but any such unissued stock, additional authorized
issue of shares of any class or series of stock or securities
convertible into or exchangeable for stock, or carrying any
right to purchase stock, may be issued and disposed of pursuant
to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others,
and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series
of Preferred Stock in relation to the relative powers,
preferences and rights of each other series of Preferred Stock
shall, in each case, be as fixed from time to time by the Board
of Directors in the resolution or resolutions adopted pursuant
to authority granted in section (b) of this Article FOURTH and
the consent, by class or series vote or otherwise, of the
holders of such of the series of Preferred Stock as are from
time to time outstanding shall not be required for the issuance
by the Board of Directors of any other series of Preferred
Stock whether or not the powers, preferences and rights of such
other series shall be fixed by the Board of Directors as senior
to, or on a parity with, the powers, preferences and rights of
such outstanding series, or any of them; provided, however,
that the Board of Directors may provide in the resolution or
resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article FOURTH that the consent
of the holders of a majority (or such greater proportion as
shall be therein fixed) of the outstanding shares of such
series voting thereon shall be required for the issuance of any
or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any
series of Preferred Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and
on such terms and for such consideration as shall be fixed by
the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and
on such terms and for such consideration as shall be fixed by
the Board of Directors.
(h) The authorized amount of shares of Common Stock and of
Preferred Stock may, without a class or series vote, be
increased or decreased from time to time by the affirmative
vote of the holders of a majority of the stock of the
Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall
be conducted and managed by a Board of Directors. The number
of directors constituting the entire Board shall be not less
than five nor more than twenty-five as fixed from time to time
by vote of a majority of the whole Board, provided, however,
that the number of directors shall not be reduced so as to
shorten the term of any director at the time in office, and
provided further, that the number of directors constituting the
whole Board shall be twenty-four until otherwise fixed by a
majority of the whole Board.
(b) The Board of Directors shall be divided into three
classes, as nearly equal in number as the then total number of
directors constituting the whole Board permits, with the term
of office of one class expiring each year. At the annual
meeting of stockholders in 1982, directors of the first class
shall be elected to hold office for a term expiring at the next
succeeding annual meeting, directors of the second class shall
be elected to hold office for a term expiring at the second
succeeding annual meeting and directors of the third class
shall be elected to hold office for a term expiring at the
third succeeding annual meeting. Any vacancies in the Board of
Directors for any reason, and any newly created directorships
resulting from any increase in the directors, may be filled by
the Board of Directors, acting by a majority of the directors
then in office, although less than a quorum, and any directors
so chosen shall hold office until the next annual election of
directors. At such election, the stockholders shall elect a
successor to such director to hold office until the next
election of the class for which such director shall have been
chosen and until his successor shall be elected and qualified.
No decrease in the number of directors shall shorten the term
of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or
Act of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, this Charter or Act of Incorporation or the
By-Laws of the Corporation), any director or the entire Board
of Directors of the Corporation may be removed at any time
without cause, but only by the affirmative vote of the holders
of two-thirds or more of the outstanding shares of capital
stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one
class) cast at a meeting of the stockholders called for that
purpose.
(d) Nominations for the election of directors may be made by
the Board of Directors or by any stockholder entitled to vote
for the election of directors. Such nominations shall be made
by notice in writing, delivered or mailed by first class United
States mail, postage prepaid, to the Secretary of the
Corporation not less than 14 days nor more than 50 days prior
to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice
of the meeting is given to stockholders, such written notice
shall be delivered or mailed, as prescribed, to the Secretary
of the Corporation not later than the close of the seventh day
following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the
Board of Directors shall be given by the Chairman on behalf of
the Board.
(e) Each notice under subsection (d) shall set forth (i) the
name, age, business address and, if known, residence address of
each nominee proposed in such notice, (ii) the principal
occupation or employment of such nominee and (iii) the number
of shares of stock of the Corporation which are beneficially
owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at
any annual or special meeting of stockholders of the
Corporation may be taken without a meeting, and the power of
stockholders to consent in writing, without a meeting, to the
taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and
servants as may be provided in the By-Laws as they may from
time to time find necessary or proper.
SEVENTH: - The Corporation hereby created is hereby given the
same powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing
a General Corporation Law", approved March 10, 1899, as from
time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private
Act.
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number
to constitute an Executive Committee, which Committee, to the
extent provided in said resolution, or in the By-Laws of the
Company, shall have and may exercise all of the powers of the
Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize
the seal of the Corporation to be affixed to all papers which
may require it.
ELEVENTH: - The private property of the stockholders shall not
be liable for the payment of corporate debts to any extent
whatever.
TWELFTH: - The Corporation may transact business in any part of
the world.
THIRTEENTH: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of
the Corporation by a vote of the majority of the entire Board.
The stockholders may make, alter or repeal any By-Law whether
or not adopted by them, provided however, that any such
additional By-Laws, alterations or repeal may be adopted only
by the affirmative vote of the holders of two-thirds or more of
the outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors
(considered for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the
books of the Company outside of the State of Delaware at such
places as may be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required
by law, and except as otherwise expressly provided in sections
(b) and (c) of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested Stockholder
or any Affiliate of any Interested Stockholder of any
assets of the Corporation or any Subsidiary having an
aggregate fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate
of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof)
having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, considered for the purpose of
this Article FIFTEENTH as one class ("Voting Shares"). Such affirmative
vote shall be required notwithstanding the fact that no vote may be
required, or that some lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which is
referred to any one or more of clauses (A) through (E) of
paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article
FIFTEENTH shall not be applicable to any particular
business combination and such business combination shall
require only such affirmative vote as is required by law
and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has
been approved by a majority of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote
on such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of
more than 10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any
share of capital stock of the Corporation which were at any
time within two years prior thereto beneficially owned by
any Interested Stockholder, and such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a
public offering within the meaning of the Securities Act of
1933.
(3) A person shall be the "beneficial owner" of any Voting
Shares:
(A) which such person or any of its Affiliates and
Associates (as hereafter defined) beneficially own,
directly or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such right
is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned person
or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock
of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed
owned through application of paragraph (3) above but shall not
include any other Voting Shares which may be issuable pursuant
to any agreement, or upon exercise of conversion rights,
warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as
in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a
majority of any class of equity security (as defined in Rule
3a11-1 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect in December 31,
1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of
Investment Stockholder set forth in paragraph (2) of this
section (c), the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and
duty to determine for the purposes of this Article
FIFTEENTH on the basis of information known to them, (1)
the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate of
another, (3) whether a person has an agreement, arrangement
or understanding with another as to the matters referred to
in paragraph (3) of section (c), or (4) whether the assets
subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market
value of $1,00,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
SIXTEENTH: Notwithstanding any other provision of this
Charter or Act of Incorporation or the By-Laws of the
Corporation (and in addition to any other vote that may be
required by law, this Charter or Act of Incorporation by the
By-Laws), the affirmative vote of the holders of at least two-
thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class) shall be
required to amend, alter or repeal any provision of Articles
FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or
Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a Director, except to
the extent such exemption from liability or limitation thereof
is not permitted under the Delaware General Corporation Laws as
the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph
shall not adversely affect any right or protection of a
Director of the Corporation existing hereunder with respect
to any act or omission occurring prior to the time of such
repeal or modification."
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON FEBRUARY 21, 1991
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on
the third Thursday in April each year at the principal office at the
Company or at such other date, time, or place as may be designated by
resolution by the Board of Directors.
Section 2. Special meetings of all stockholders may be called
at any time by the Board of Directors, the Chairman of the Board or the
President.
Section 3. Notice of all meetings of the stockholders shall be
given by mailing to each stockholder at least ten (10 days before said
meeting, at his last known address, a written or printed notice fixing the
time and place of such meeting.
Section 4. A majority in the amount of the capital stock of
the Company issued and outstanding on the record date, as herein
determined, shall constitute a quorum at all meetings of stockholders for
the transaction of any business, but the holders of a small number of
shares may adjourn, from time to time, without further notice, until a
quorum is secured. At each annual or special meeting of stockholders, each
stockholder shall be entitled to one vote, either in person or by proxy,
for each shares of stock registered in the stockholder's name on the books
of the Company on the record date for any such meeting as determined
herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of
Directors shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two
(72) years shall be nominated for election to the Board of Directors of the
Company, provided, however, that this limitation shall not apply to any
person who was serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office
for three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be
managed and conducted by the Board of Directors.
Section 5. Regular meetings of the Board of Directors shall be
held on the third Thursday of each month at the principal office of the
Company, or at such other place and time as may be designated by the Board
of Directors, the Chairman of the Board, or the President.
Section 6. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or by the
President, and shall be called upon the written request of a majority of
the directors.
Section 7. A majority of the directors elected and qualified
shall be necessary to constitute a quorum for the transaction of business
at any meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each
director of any special meeting of the Board of Directors, and of any
change in the time or place of any regular meeting, stating the time and
place of such meeting, which shall be mailed not less than two days before
the time of holding such meeting.
Section 9. In the event of the death, resignation, removal,
inability to act, or disqualification of any director, the Board of
Directors, although less than a quorum, shall have the right to elect the
successor who shall hold office for the remainder of the full term of the
class of directors in which the vacancy occurred, and until such director's
successor shall have been duly elected and qualified.
Section 10. The Board of Directors at its first meeting after
its election by the stockholders shall appoint an Executive Committee, a
Trust Committee, an Audit Committee and a Compensation Committee, and shall
elect from its own members a Chairman of the Board of Directors and a
President who may be the same person. The Board of Directors shall also
elect at such meeting a Secretary and a Treasurer, who may be the same
person, may appoint at any time such other committees and elect or appoint
such other officers as it may deem advisable. The Board of Directors may
also elect at such meeting one or more Associate Directors.
Section 11. The Board of Directors may at any time remove,
with or without cause, any member of any Committee appointed by it or any
associate director or officer elected by it and may appoint or elect his
successor.
Section 12. The Board of Directors may designate an officer to
be in charge of such of the departments or division of the Company as it
may deem advisable.
ARTICLE III
COMMITTEES
Section I. Executive Committee
(A) The Executive Committee shall be composed of not
more than nine members who shall be selected by the Board of Directors from
its own members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers
of the Board of Directors when it is not in session to transact all
business for and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at least
once a week in each week the Board is not regularly scheduled to meet. A
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may
be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee
shall be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the Company,
and shall direct the disposal of the same, in accordance with such rules
and regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business
of the Company by its directors and officers as contemplated by these By-
Laws any two available members of the Executive Committee as constituted
immediately prior to such disaster shall constitute a quorum of that
Committee for the full conduct and management of the affairs and business
of the Company in accordance with the provisions of Article III of these
By-Laws; and if less than three members of the Trust Committee is
constituted immediately prior to such disaster shall be available for the
transaction of its business, such Executive Committee shall also be
empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at
such time, of a minimum of two members of such Executive Committee, any
three available directors shall constitute the Executive Committee for the
full conduct and management of the affairs and business of the Company in
accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time for that purpose,
and any provisions of these By-Laws (other than this Section) and any
resolutions which are contrary to the provisions of this Section or to the
provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim
Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its
affairs and business under all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more
than thirteen members who shall be selected by the Board of Directors, a
majority of whom shall be members of the Board of Directors and who shall
hold office during the pleasure of the Board.
(B) The Trust Committee shall have general supervision
over the Trust Department and the investment of trust funds, in all
matters, however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal
office of the Company or elsewhere in its discretion at least once a month.
A majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Trust Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Trust Committee
shall be kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to
appoint Committees and/or designate officers or employees of the Company to
whom supervision over the investment of trust funds may be delegated when
the Trust Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five
members who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer of the Company, and shall hold
office at the pleasure of the Board.
(B) The Audit Committee shall have general supervision
over the Audit Division in all matters however subject to the approval of
the Board of Directors; it shall consider all matters brought to its
attention by the officer in charge of the Audit Division, review all
reports of examination of the Company made by any governmental agency or
such independent auditor employed for that purpose, and make such
recommendations to the Board of Directors with respect thereto or with
respect to any other matters pertaining to auditing the Company as it shall
deem desirable.
(C) The Audit Committee shall meet whenever and
wherever the majority of its members shall deem it to be proper for the
transaction of its business, and a majority of its Committee shall
constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of
not more than five (5) members who shall be selected by the Board of
Directors from its own members who are not officers of the Company and who
shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in general advise
upon all matters of policy concerning the Company brought to its attention
by the management and from time to time review the management of the
Company, major organizational matters, including salaries and employee
benefits and specifically shall administer the Executive Incentive
Compensation Plan.
(C) Meetings of the Compensation Committee may be
called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be
elected by the Board of Directors as an associate director, to serve during
the pleasure of the Board.
(B) An associate director shall be entitled to attend
all directors meetings and participate in the discussion of all matters
brought to the Board, with the exception that he would have no right to
vote. An associate director will be eligible for appointment to Committees
of the Company, with the exception of the Executive Committee, Audit
Committee and Compensation Committee, which must be comprised solely of
active directors.
Section 6. Absence or Disqualification of Any Member of a
Committee
(A) In the absence or disqualification of any member
of any Committee created under Article III of the By-Laws of this Company,
the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in
the place of any such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall
preside at all meetings of the Board and shall have such further authority
and powers and shall perform such duties as the Board of Directors may from
time to time confer and direct. He shall also exercise such powers and
perform such duties as may from time to time be agreed upon between himself
and the President of the Company.
Section 2. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon him by
statute or assigned to him by the Board of Directors in the absence of the
Chairman of the Board the President shall have the powers and duties of the
Chairman of the Board.
Section 3. The Chairman of the Board of Directors or the
President as designated by the Board of Directors, shall carry into effect
all legal directions of the Executive Committee and of the Board of
Directors, and shall at all times exercise general supervision over the
interest, affairs and operations of the Company and perform all duties
incident to his office.
Section 4. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and
such other powers and duties as may from time to time be assigned to them
by the Board of Directors, the Executive Committee, the Chairman of the
Board or the President and by the officer in charge of the department or
division to which they are assigned.
Section 5. The Secretary shall attend to the giving of notice
of meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition
to the other notice requirements of these By-Laws and as may be practicable
under the circumstances, all such notices shall be in writing and mailed
well in advance of the scheduled date of any other meeting. He shall have
custody of the corporate seal and shall affix the same to any documents
requiring such corporate seal and to attest the same.
Section 6. The Treasurer shall have general supervision over
all assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for the
keeping of proper records of the evidence of property or indebtedness and
of all the transactions of the Company. He shall have general supervision
of the expenditures of the Company and shall report to the Board of
Directors at each regular meeting of the condition of the Company, and
perform such other duties as may be assigned to him from time to time by
the Board of Directors of the Executive Committee.
Section 7. There may be a Controller who shall exercise
general supervision over the internal operations of the Company, including
accounting, and shall render to the Board of Directors at appropriate times
a report relating to the general condition and internal operations of the
Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller
and such duties as may be prescribed by the Controller.
Section 8. The officer designated by the Board of Directors to
be in charge of the Audit Division of the Company with such title as the
Board of Directors shall prescribe, shall report to and be directly
responsible only to the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the
Auditor and such duties as may be prescribed by the officer in charge of
the Audit Division.
Section 9. There may be one or more officers, subordinate in
rank to all Vice Presidents with such functional titles as shall be
determined from time to time by the Board of Directors, who shall ex
officio hold the office Assistant Secretary of this Company and who may
perform such duties as may be prescribed by the officer in charge of the
department or division to whom they are assigned.
Section 10. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices,
subject to the direction of the Board of Directors, the Executive
Committee, Chairman of the Board of Directors or the President and the
officer in charge of the department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books
of the Company and a transfer book shall be kept in which all transfers of
stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of
the President or any Vice President, however denominated by the Board of
Directors and countersigned by the Secretary or Treasurer or an Assistant
Secretary, and the seal of the corporation shall be engraved thereon. Each
certificate shall recite that the stock represented thereby is
transferrable only upon the books of the Company by the holder thereof or
his attorney, upon surrender of the certificate properly endorsed. Any
certificate of stock surrendered to the Company shall be cancelled at the
time of transfer, and before a new certificate or certificates shall be
issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of
Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized
to fix in advance a record date for the determination of the stockholders
entitled to notice of, and to vote at, any meeting of stockholders and any
adjournment thereof, or entitled to receive payment of any dividend, or to
any allotment or rights, or to exercise any rights in respect of any
change, conversion or exchange of capital stock, or in connection with
obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, or a date in connection
with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the
calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any
Vice President, however denominated by the Board of Directors, shall have
full power and authority to enter into, make, sign, execute, acknowledge
and/or deliver and the Secretary or any Assistant Secretary shall have full
power and authority to attest and affix the corporate seal of the Company
to any and all deeds, conveyances, assignments, releases, contracts,
agreements, bonds, notes, mortgages and all other instruments incident to
the business of this Company or in acting as executor, administrator,
guardian, trustee, agent or in any other fiduciary or representative
capacity by any and every method of appointment or by whatever person,
corporation, court officer or authority in the State of Delaware, or
elsewhere, without any specific authority, ratification, approval or
confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as although
expressly authorized by the Board of Directors and/or the Executive
Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company,
other than salaried officers of the Company, shall be paid such reasonable
honoraria or fees for attending meetings of the Board of Directors as the
Board of Directors may from time to time determine. Directors and
associate directors who serve as members of committees, other than salaried
employees of the Company, shall be paid such reasonable honoraria or fees
for services as members of committees as the Board of Directors shall from
time to time determine and directors and associate directors may be
employed by the Company for such special services as the Board of Directors
may from time to time determine and shall be paid for such special services
so performed reasonable compensation as may be determined by the Board of
Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director, officer, employee or agent of
the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or
of a partnership, joint venture, trust, enterprise or non-profit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses reasonably incurred by such
person. The Corporation shall indemnify a person in connection with a
proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided,
--------
however, that the payment of expenses incurred by a Director officer in his
-------
capacity as a Director or officer in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by the
Director or officer to repay all amounts advanced if it should be
ultimately determined that the Director or officer is not entitled to be
indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of
expenses, under this Article X is not paid in full within ninety days after
a written claim therefor has been received by the Corporation the claimant
may file suit to recover the unpaid amount of such claim and, if successful
in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the
burden of proving that the claimant was not entitled to the requested
indemnification of payment of expenses under applicable law.
(D) The rights conferred on any person by this Article
X shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed,
in whole or in part, and any new By-Law or By-Laws adopted at any regular
or special meeting of the Board of Directors by a vote of the majority of
all the members of the Board of Directors then in office.
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939,
as amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission
upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: November 18, 1996 By: /s/ Norma P. Closs
------------------
Name: Norma P. Closs
Title: Vice President
EXHIBIT D
NOTICE
This form is intended to assist state
nonmember banks and savings banks with state
publication requirements. It has not been
approved by any state banking authorities.
Refer to your appropriate state banking
authorities for your state publication
requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
---------------------------------------------------------- -------------
Name of Bank City
in the State of DELAWARE , at the close of business on September 30,
------------
1996.
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins . . . . . . 198,288
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . 489,428
Available-for-sale securities . . . . . . . . . . . . . . . . . . . 783,718
Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . 19,000
Securities purchased under agreements to resell . . . . . . . . . . 48,500
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . 3,620,289
LESS: Allowance for loan and lease losses . . . 49,721
LESS: Allocated transfer risk reserve . . . . . 0
Loans and leases, net of unearned income, allowance,
and reserve . . . . . . . . . . . . . . . . . . 3,570,568
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . 0
Premises and fixed assets (including capitalized leases) . . . . . 83,675
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . 4,607
Investments in unconsolidated subsidiaries and associated companies . . 85
Customers' liability to this bank on acceptances outstanding . . . . . . 0
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . 4,131
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 101,592
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . 5,303,592
CONTINUED ON NEXT PAGE
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . 3,457,641
Noninterest-bearing . . . . . . . . . . . . . . . 740,731
Interest-bearing . . . . . . . . . . . . . . . . 2,716,910
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . 135,889
Securities sold under agreements to repurchase . . . . . . . . . 213,617
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . 94,999
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money: . . . . . . . . . . . . . . . . . . . . . . . ///////
With original maturity of one year or less . . . . . . . . . . 844,000
With original maturity of more than one year . . . . . . . . . 28,000
Mortgage indebtedness and obligations under capitalized leases . . . . . 0
Bank's liability on acceptances executed and outstanding . . . . . . . . 0
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . 0
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . 103,818
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . 4,877,964
Limited-life preferred stock and related surplus . . . . . . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . 0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,119
Undivided profits and capital reserves . . . . . . . . . . . . . . 363,705
Net unrealized holding gains (losses)
on available-for-sale securities . . . . . . . . . . . . . . . (696)
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . 425,628
Total liabilities, limited-life preferred stock,
and equity capital . . . . . . . . . . . . . . . . . . . . . . 5,303,592