TO CITIBANK, N.A. As Successor Trustee under Mortgage and Deed of Trust, dated as of June 1, 1939 Forty-sixth SupplementalIndenture Providing among other things for a series of bonds designated First Mortgage Bonds, 5.125% Series due 2022 Due April 1,2022 and certainamendments to said Mortgage and Deed of Trust Dated as of September 1,2009
Exhibit 4.1
CONFORMED COPY
AVISTA CORPORATION
TO
CITIBANK, N.A.
As Successor Trustee under
Mortgage and Deed of Trust,
dated as of June 1, 1939
Forty-sixth Supplemental Indenture
Providing among other things for a series of bonds designated
“First Mortgage Bonds, 5.125% Series due 2022”
Due April 1, 2022
and
certain amendments to said Mortgage and Deed of Trust
Dated as of September 1, 2009
FORTY-SIXTH SUPPLEMENTAL INDENTURE
THIS INDENTURE, dated as of the 1st day of September, 2009, between AVISTA CORPORATION (formerly known as The Washington Water Power Company), a corporation of the State of Washington, whose post office address is 1411 East Mission Avenue, Spokane, Washington 99202 (the “Company”), and CITIBANK, N.A., formerly First National City Bank (successor by merger to First National City Trust Company, formerly City Bank Farmers Trust Company), a national banking association incorporated and existing under the laws of the United States of America, whose post office address is 388 Greenwich Street – 14th Floor, New York, New York 10013 (the “Trustee”), as Trustee under the Mortgage and Deed of Trust, dated as of June 1, 1939 (the “Original Mortgage”), executed and delivered by the Company to secure the payment of bonds issued or to be issued under and in accordance with the provisions thereof, this indenture (the “Forty-sixth Supplemental Indenture”) being supplemental to the Original Mortgage, as heretofore supplemented and amended.
WHEREAS pursuant to a written request of the Company made in accordance with Section 103 of the Original Mortgage, Francis M. Pitt (then Individual Trustee under the Original Mortgage, as supplemented) ceased to be a trustee thereunder on July 23, 1969, and all of his powers as Individual Trustee have devolved upon the Trustee and its successors alone; and
WHEREAS by the Original Mortgage the Company covenanted that it would execute and deliver such further instruments and do such further acts as might be necessary or proper to carry out more effectually the purposes of the Original Mortgage and to make subject to the lien of the Original Mortgage any property thereafter acquired intended to be subject to the lien thereof; and
WHEREAS the Company has heretofore executed and delivered, in addition to the Original Mortgage, the indentures supplemental thereto, and has issued the series of bonds, set forth in Exhibit A hereto (the Original Mortgage, as supplemented and amended by the First through Forty-fifth Supplemental Indentures being herein sometimes called the “Mortgage”); and
WHEREAS the Original Mortgage and the First through Forty-second Supplemental Indentures have been appropriately filed or recorded in various official records in the States of Washington, Idaho, Montana and Oregon, as set forth in the First through Forty-third Supplemental Indentures; and
WHEREAS the Forty-third Supplemental Indenture, dated as of November 1, 2008, the Forty-fourth Supplemental Indenture, dated as of December 1, 2008, and the Forty-fifth Supplemental Indenture, dated as of December 1, 2008, have been appropriately filed or recorded in the various official records in the States of Washington, Idaho, Montana and Oregon set forth in Exhibit B hereto; and
WHEREAS for the purpose of confirming or perfecting the lien of the Mortgage on certain of its properties, the Company has heretofore executed and delivered a Short Form Mortgage and Security Agreement, in multiple counterparts dated as of various dates in 1992, and such instrument has been appropriately filed or recorded in the various official records in the States of Montana and Oregon; and
WHEREAS for the purpose of confirming or perfecting the lien of the Mortgage on certain of its properties, the Company has heretofore executed and delivered an Instrument of Further Assurance dated as of December 15, 2001, and such instrument has been appropriately filed or recorded in the various official records in the States of Washington, Idaho, Montana and Oregon; and
WHEREAS in addition to the property described in the Mortgage the Company has acquired certain other property, rights and interests in property; and
WHEREAS, Section 120 of the Original Mortgage, as heretofore amended, provides that, without the consent of any holders of bonds, the Company and the Trustee, at any time and from time to time, may enter into indentures supplemental to the Original Mortgage for various purposes set forth therein, including, without limitation, to cure ambiguities or correct defective or inconsistent provisions or to make other changes therein that shall not adversely affect the interests of the holders of bonds of any series in any material respect or to establish the form or terms of bonds of any series as contemplated by Article II.
WHEREAS, the Company now desires to amend certain provisions of the Original Indenture relating to, among other things, the establishment of series of bonds and the terms thereof, as contemplated in Article II hereof and Exhibit E hereto;
WHEREAS Section 8 of the Original Mortgage, as heretofore and to be hereby amended, provides that the form of each series of bonds (other than the First Series) issued thereunder and of the coupons to be attached to coupon Bonds of such series shall be established by Resolution of the Board of Directors of the Company or by Treasurer’s Certificate, or shall be set forth in an indenture supplemental to the Original Mortgage; that the form of such series, as so established, shall specify the descriptive title of the bonds and various other terms thereof; and that any such series may also contain such provisions not inconsistent with the provisions of the Mortgage as the Company may, in its discretion, cause to be inserted therein expressing or referring to the terms and conditions upon which such bonds are to be issued and/or secured under the Mortgage; and
WHEREAS the Company further desires to create a new series of bonds; and
WHEREAS all corporate action necessary to authorize the execution and delivery by the Company of this Forty-sixth Supplemental Indenture and the issuance by
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the Company of the Bonds of the Forty-sixth Series, hereinafter referred to, has been taken; and all things necessary to make this Forty-sixth Supplemental Indenture a valid, binding and legal instrument have been performed;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That the Company, in consideration of the premises and of other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, hereby confirms the estate, title and rights of the Trustee (including, without limitation, the lien of the Mortgage on the property of the Company subjected thereto, whether now owned or hereafter acquired) held as security for the payment of both the principal of and interest and premium, if any, on the bonds from time to time issued under the Mortgage according to their tenor and effect and the performance of all the provisions of the Mortgage and of such bonds, and, without limiting the generality of the foregoing, hereby confirms the grant, bargain, sale, release, conveyance, assignment, transfer, mortgage, pledge, setting over and confirmation unto the Trustee, contained in the Mortgage, of all the following described properties of the Company, whether now owned or hereafter acquired, namely:
All of the property, real, personal and mixed, of every character and wheresoever situated (except any hereinafter or in the Mortgage expressly excepted) which the Company now owns or, subject to the provisions of Section 87 of the Original Mortgage, may hereafter acquire prior to the satisfaction and discharge of the Mortgage, as fully and completely as if herein or in the Mortgage specifically described, and including (without in anywise limiting or impairing by the enumeration of the same the scope and intent of the foregoing or of any general description contained in Mortgage) all lands, real estate, easements, servitudes, rights of way and leasehold and other interests in real estate; all rights to the use or appropriation of water, flowage rights, water storage rights, flooding rights, and other rights in respect of or relating to water; all plants for the generation of electricity, power houses, dams, dam sites, reservoirs, flumes, raceways, diversion works, head works, waterways, water works, water systems, gas plants, steam heat plants, hot water plants, ice or refrigeration plants, stations, substations, offices, buildings and other works and structures and the equipment thereof and all improvements, extensions and additions thereto; all generators, machinery, engines, turbines, boilers, dynamos, transformers, motors, electric machines, switchboards, regulators, meters, electrical and mechanical appliances, conduits, cables, pipes and mains; all lines and systems for the transmission and distribution of electric current, gas, steam heat or water for any purpose; all towers, mains, pipes, poles, pole lines, conduits, cables, wires, switch racks, insulators, compressors, pumps, fittings, valves and connections; all motor vehicles and automobiles; all tools, implements, apparatus, furniture, stores, supplies and equipment; all franchises (except the Company’s franchise to be a corporation), licenses,
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permits, rights, powers and privileges; and (except as hereinafter or in the Mortgage expressly excepted) all the right, title and interest of the Company in and to all other property of any kind or nature.
The property so conveyed or intended to be so conveyed under the Mortgage shall include, but shall not be limited to, the property set forth in Exhibit C hereto, the particular description of which is intended only to aid in the identification thereof and shall not be construed as limiting the force, effect and scope of the foregoing.
TOGETHER WITH all and singular the tenements, hereditaments and appurtenances belonging or in anywise appertaining to the aforesaid property or any part thereof, with the reversion and reversions, remainder and remainders and (subject to the provisions of Section 57 of the Original Mortgage) the tolls, rents, revenues, issues, earnings, income, product and profits thereof, and all the estate, right, title and interest and claim whatsoever, at law as well as in equity, which the Company now has or may hereafter acquire in and to the aforesaid property and franchises and every part and parcel thereof.
THE COMPANY HEREBY CONFIRMS that, subject to the provisions of Section 87 of the Original Mortgage, all the property, rights, and franchises acquired by the Company after the date thereof (except any hereinbefore or hereinafter or in the Mortgage expressly excepted) are and shall be as fully embraced within the lien of the Mortgage as if such property, rights and franchises had been owned by the Company at the date of the Original Mortgage and had been specifically described therein.
PROVIDED THAT the following were not and were not intended to be then or now or hereafter granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed under the Mortgage and were, are and shall be expressly excepted from the lien and operation of the Mortgage, namely: (l) cash, shares of stock and obligations (including bonds, notes and other securities) not hereafter specifically pledged, paid, deposited or delivered under the Mortgage or covenanted so to be; (2) merchandise, equipment, materials or supplies held for the purpose of sale in the usual course of business or for consumption in the operation of any properties of the Company; (3) bills, notes and accounts receivable, and all contracts, leases and operating agreements not specifically pledged under the Mortgage or covenanted so to be; (4) electric energy and other materials or products generated, manufactured, produced or purchased by the Company for sale, distribution or use in the ordinary course of its business; and (5) any property heretofore released pursuant to any provisions of the Mortgage and not heretofore disposed of by the Company; provided, however, that the property and rights expressly excepted from the lien and operation of the Mortgage in the above subdivisions (2) and (3) shall (to the extent permitted by law) cease to be so excepted in the event that the Trustee or a receiver or trustee shall enter upon and take possession of the Mortgaged and Pledged Property in the manner provided in Article XII of the Original Mortgage by reason of the occurrence of a Completed Default as defined in said Article XII.
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TO HAVE AND TO HOLD all such properties, real, personal and mixed, granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed by the Company in the Mortgage as aforesaid, or intended so to be, unto the Trustee, and its successors, heirs and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same terms, trusts and conditions and subject to and with the same provisos and covenants as set forth in the Mortgage, this Forty-sixth Supplemental Indenture being supplemental to the Mortgage.
AND IT IS HEREBY FURTHER CONFIRMED by the Company that all the terms, conditions, provisos, covenants and provisions contained in the Mortgage shall affect and apply to the property in the Mortgage described and conveyed, and to the estates, rights, obligations and duties of the Company and the Trustee and the beneficiaries of the trust with respect to said property, and to the Trustee and its successors in the trust, in the same manner and with the same effect as if the said property had been owned by the Company at the time of the execution of the Original Mortgage, and had been specifically and at length described in and conveyed to said Trustee by the Original Mortgage as a part of the property therein stated to be conveyed.
The Company further covenants and agrees to and with the Trustee and its successor or successors in such trust under the Mortgage, as follows:
ARTICLE I
Forty-sixth Series of Bonds
SECTION 1. (I) There shall be a series of bonds designated “First Mortgage Bonds, 5.125% Series due 2022” (herein sometimes referred to as the “Bonds of the Forty-sixth Series”), each of which shall also bear the descriptive title First Mortgage Bond, and the form thereof is set forth on Exhibit D hereto. The Bonds of the Forty-sixth Series shall be issued as fully registered bonds in denominations of One Thousand Dollars and, at the option of the Company, any amount in excess thereof (the exercise of such option to be evidenced by the execution and delivery thereof) and shall be dated as in Section 10 of the Original Mortgage provided.
The Bonds of the Forty-sixth Series shall mature, shall bear interest and shall be payable as set forth below:
(a) the principal of Bonds of the Forty-sixth Series shall (unless theretofore paid) be payable on the Stated Maturity Date (as hereinafter defined);
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(b) the Bonds of the Forty-sixth Series shall bear interest at the rate of five and one hundred twenty-five one-thousandths percentum (5.125%) per annum; interest on such Bonds shall accrue from and including September 22, 2009, except as otherwise provided in the form of bond attached hereto as Exhibit D; interest on such Bonds shall be payable on each Interest Payment Date and at Maturity (as each of such terms is hereafter defined); and interest on such Bonds during any period for which payment is made shall be computed on the basis of a 360-day year consisting of twelve 30-days months;
(c) the principal of and premium, if any, and interest on each Bond of the Forty-sixth Series payable at Maturity shall be payable upon presentation thereof at the office or agency of the Company in the Borough of Manhattan, The City of New York, in such coin or currency as at the time of payment is legal tender for public and private debts. The interest on each Bond of the Forty-sixth Series (other than interest payable at Maturity) shall be payable by check, in similar coin or currency, mailed to the registered owner thereof as of the close of business on the Record Date (as hereinafter defined) next preceding each Interest Payment Date; provided, however, that if such registered owner shall be a securities depositary, such payment may be made by such other means in lieu of check as shall be agreed upon by the Company, the Trustee and such registered owner.
(d) the Bonds of the Forty-sixth Series shall be redeemable in whole at any time, or in part from time to time, at the option of the Company at a redemption price equal to the greater of
(i) 100% of the principal amount of the Bonds being redeemed, and
(ii) the sum of the present values of the remaining scheduled payments of principal of and interest (not including any portion of any scheduled payment of interest which accrued prior to the redemption date) on the Bonds being redeemed discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at a discount rate equal to the Treasury Yield (as hereinafter defined) plus 30 basis points,
plus, in the case of either (i) or (ii) above, whichever is applicable, accrued and unpaid interest on such Bonds to the date of redemption.
(e)(i) “Treasury Yield” means, with respect to any redemption of Bonds of the Forty-sixth Series, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price. The Treasury
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Yield shall be calculated as of the third business day preceding the redemption date or, if the Bonds to be redeemed are to be caused to be deemed to have been paid within the meaning of Section 106 of the Original Mortgage, as amended, prior to the redemption date, then as of the third business day prior to the earlier of (x) the date notice of such redemption is mailed to bondholders pursuant to Section 52 of the Original Mortgage, as amended, and (y) the date irrevocable arrangements with the Trustee for the mailing of such notice shall have been made, as the case may be (the “Calculation Date”).
(ii) “Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Bonds of the Forty-sixth Series that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Bonds.
(iii) “Comparable Treasury Price” means (A) the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third business day preceding the Calculation Date, as set forth in the H.15 Daily Update of the Federal Reserve Bank of New York or (B) if such release (or any successor release) is not published or does not contain such prices on such business day, the Reference Treasury Dealer Quotation for the Calculation Date.
(iv) “H.15(519)” means the weekly statistical release entitled “Statistical Release H.15 (519)”, or any successor publication, published by the Board of Governors of the Federal Reserve System.
(v) “H.15 Daily Update” means the daily update of H.15(519) available through the worldwide website of the Board of Governors of the Federal Reserve System or any successor site or publication.
(vi) “Independent Investment Banker” means UBS Securities LLC or J. P. Morgan Securities Inc. or, if so determined by the Company, any other independent investment banking institution of national standing appointed by the Company and reasonably acceptable to the Trustee.
(vii) “Reference Treasury Dealer Quotation” means, with respect to the Reference Treasury Dealer, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount and quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the third business day preceding the Calculation Date).
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(viii) “Reference Treasury Dealer” means a primary U.S. Government securities dealer in the United States appointed by the Company and reasonably acceptable to the Trustee.
(II)(a) At the option of the registered owner, any Bonds of the Forty-sixth Series, upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City of New York, shall be exchangeable for a like aggregate principal amount of bonds of the same series of other authorized denominations.
The Bonds of the Forty-sixth Series shall be transferable, upon the surrender thereof for cancellation, together with a written instrument of transfer in form approved by the registrar duly executed by the registered owner or by his duly authorized attorney, at the office or agency of the Company in the Borough of Manhattan, The City of New York.
Notwithstanding the foregoing, the Company shall not be required to make any transfer or exchange of any Bonds of the Forty-sixth Series for a period of 10 days next preceding any Interest Payment Date or any selection of such Bonds for redemption, nor shall it be required to make transfers or exchange of any Bonds of the Forty-sixth Series which shall have been selected for redemption in whole or in part.
Upon any exchange or transfer of Bonds of the Forty-sixth Series, the Company may make a charge therefor sufficient to reimburse it for any tax or taxes or other governmental charge, as provided in Section 12 of the Original Mortgage, but the Company hereby waives any right to make a charge in addition thereto for any exchange or transfer of Bonds of the Forty-sixth Series and no other charge shall be made.
(b) The Bonds of the Forty-sixth Series are initially to be issued in global form, registered in the name of Cede & Co., as nominee for The Depository Trust Company (the “Depositary”). Notwithstanding the provisions of subdivision (a) above, such Bonds shall not be transferable, nor shall any purported transfer be registered, except as follows:
(i) such Bonds may be transferred in whole, and appropriate registration of transfer effected, to the Depositary, or by the Depositary to another nominee thereof, or by any nominee of the Depositary to any other nominee thereof, or by the Depositary or any nominee thereof to any successor securities depositary or any nominee thereof;
(ii) such Bonds may be transferred in whole, and appropriate registration of transfer effected, to the beneficial holders thereof, and thereafter shall be transferable, if:
(A) The Depositary, or any successor securities depositary, shall have notified the Company and the Trustee that (I) it is unwilling or unable to continue to act as securities depositary with respect to such Bonds or (II) it is no longer a clearing agency registered under the Securities Exchange Act of 1934, as amended, and, in either case, the Trustee shall not have been notified by the Company within one hundred twenty (120) days of the identity of a successor securities depositary with respect to such Bonds; or
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(B) the Company shall have delivered to the Trustee a written order to the effect that such Bonds shall be so transferable on and after a date specified therein.
The Bonds of the Forty-sixth Series, when in global form, shall bear a legend as to such global form and the foregoing restrictions on transfer substantially as set forth below:
This global bond is held by Cede & Co., as nominee for The Depository Trust Company (the “Depositary”) for the benefit of the beneficial owners hereof. This bond may not be transferred, nor may any purported transfer be registered, except that (i) this bond may be transferred in whole, and appropriate registration of transfer effected, if such transfer is by Cede & Co., as nominee for the Depositary, to the Depositary, or by the Depositary to another nominee thereof, or by any nominee of the Depositary to any other nominee thereof, or by the Depositary or any nominee thereof to any successor bond depositary or any nominee thereof; and (ii) this bond may be transferred, and appropriate registration of transfer effected, to the beneficial holders hereof, and thereafter shall be transferable without restrictions (except as provided in the preceding paragraph) if: (A) the Depositary, or any successor securities depositary, shall have notified the Company and the Trustee that (I) it is unwilling or unable to continue to act as securities depositary with respect to this bond or (II) it is no longer a clearing agency registered under the Securities Exchange Act of 1934, as amended, and, in either case, the Trustee shall not have been notified by the Company within one hundred twenty (120) days of the identity of a successor securities depositary with respect to this bond; or (B) the Company shall have delivered to the Trustee a written order to the effect that this bond shall be so transferable on and after a date specified therein.
(III) For all purposes of this Forty-sixth Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires, the terms listed below, when used with respect to the Bonds of the Forty-sixth Series, shall have the meanings specified below:
“Interest Payment Date” means April 1 and October 1 in each year, commencing April 1, 2010.
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“Maturity” means the date on which the principal of the Bonds of the Forty-sixth Series becomes due and payable, whether at the Stated Maturity Date, upon redemption or acceleration, or otherwise.
“Record Date”, with respect to any Interest Payment Date, means the March 15 or September 15, as the case may be, next preceding such Interest Payment Date.
“Stated Maturity Date” means April 1, 2022.
(IV) Notwithstanding the provisions of Section 106 of the Original Mortgage, as amended, the Company shall not cause any Bonds of the Forty-sixth Series, or any portion of the principal amount thereof, to be deemed to have been paid as provided in such Section and its obligations in respect thereof to be deemed to be satisfied and discharged prior to the Maturity thereof unless the Company shall deliver to the Trustee either:
(a) an instrument wherein the Company, notwithstanding the effect of Section 106 of the Original Mortgage, as amended, in respect of such Bonds, shall assume the obligation (which shall be absolute and unconditional) to irrevocably deposit with the Trustee such additional sums of money, if any, or additional government obligations (meeting the requirements of Section 106), if any, or any combination thereof, at such time or times, as shall be necessary, together with the money and/or government obligations theretofore so deposited, to pay when due the principal of and premium, if any, and interest due and to become due on such Bonds or portions thereof, all in accordance with and subject to the provisions of Section 106; provided, however, that such instrument may state that the obligation of the Company to make additional deposits as aforesaid shall be subject to the delivery to the Company by the Trustee of a notice asserting the deficiency accompanied by an opinion of an independent accountant showing the calculation thereof (which opinion shall be obtained at the expense of the Company); or
(b) an Opinion of Counsel to the effect that the holders of such Bonds, or portions of the principal amount thereof, will not recognize income, gain or loss for United States federal income tax purposes as a result of the satisfaction and discharge of the Company’s indebtedness in respect thereof and will be subject to United States federal income tax on the same amounts, at the same times and in the same manner as if such satisfaction and discharge had not been effected.
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(V) The Bonds of the Forty-sixth Series shall have such further terms as are set forth in Exhibit D hereto. If there shall be a conflict between the terms of the form of bond and the provisions of the Mortgage, the provisions of the Mortgage shall control to the extent permitted by law.
(VI) Upon the delivery of this Forty-sixth Supplemental Indenture, Bonds of the Forty-sixth Series in an aggregate principal amount of $250,000,000 are to be authenticated and delivered, upon the basis of retired bonds, and will be Outstanding, in addition to $1,421,700,000 aggregate principal amount of bonds of prior series Outstanding at the date of delivery of this Forty-sixth Supplemental Indenture; it being understood that, subject to the provisions of the Mortgage, there shall be no limit under the Mortgage upon the aggregate principal amount of Bonds of the Forty-sixth Series which may be authenticated and delivered hereunder.
ARTICLE II
Amendments of Original Mortgage
SECTION 1. The Original Mortgage, as heretofore amended, is hereby further amended as set forth in Exhibit E hereto, and the amendments set forth in Exhibit E shall be deemed to become effective immediately prior to the effectiveness of the provisions of Article I hereof establishing the Bonds of the Forty-sixth Series.
ARTICLE III
Miscellaneous Provisions
SECTION 1. The terms defined in the Original Mortgage shall, for all purposes of this Forty-sixth Supplemental Indenture, have the meanings specified in the Original Mortgage.
SECTION 2. The Trustee hereby confirms its acceptance of the trusts in the Original Mortgage declared, provided, created or supplemented and agrees to perform the same upon the terms and conditions in the Original Mortgage set forth, including the following:
The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Forty-sixth Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. Each and every term and condition contained in Article XVI of the Original Mortgage, shall apply to and form part of this Forty-sixth Supplemental Indenture with the same force and effect as if the same were herein set forth in full, with such omissions, variations and insertions, if any, as may be appropriate to make the same conform to the provisions of this Forty-sixth Supplemental Indenture.
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SECTION 3. Whenever in this Forty-sixth Supplemental Indenture either of the parties hereto is named or referred to, this shall, subject to the provisions of Articles XV and XVI of the Original Mortgage be deemed to include the successors and assigns of such party, and all the covenants and agreements in this Forty-sixth Supplemental Indenture contained by or on behalf of the Company, or by or on behalf of the Trustee, or either of them, shall, subject as aforesaid, bind and inure to the respective benefits of the respective successors and assigns of such parties, whether so expressed or not.
SECTION 4. Nothing in this Forty-sixth Supplemental Indenture, expressed or implied, is intended, or shall be construed, to confer upon, or to give to, any person, firm or corporation, other than the parties hereto, the holders of the bonds Outstanding under the Mortgage, any right, remedy or claim under or by reason of this Forty-sixth Supplemental Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all the covenants, conditions, stipulations, promises and agreements in this Forty-sixth Supplemental Indenture contained by or on behalf of the Company shall be for the sole and exclusive benefit of the parties hereto, and of the holders of the bonds Outstanding under the Mortgage.
SECTION 5. This Forty-sixth Supplemental Indenture shall be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
SECTION 6. The titles of the several Articles of this Forty-sixth Supplemental Indenture shall not be deemed to be any part thereof.
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IN WITNESS WHEREOF, on the 10th day of September, 2009, AVISTA CORPORATION has caused its corporate name to be hereunto affixed, and this instrument to be signed and sealed by its President or one of its Vice Presidents, and its corporate seal to be attested by its Corporate Secretary or one of its Assistant Corporate Secretaries for and in its behalf, all in The City of Spokane, Washington, as of the day and year first above written; and on the 1st day of September, 2009, CITIBANK, N.A., has caused its corporate name to be hereunto affixed, and this instrument to be signed and sealed by its President or one of its Vice Presidents or one of its Senior Trust Officers or one of its Trust Officers and its corporate seal to be attested by one of its Vice Presidents or one of its Trust Officers, all in The City of New York, New York, as of the day and year first above written.
| AVISTA CORPORATION | ||
| By: | /s/ Jason R. Thackston | |
| Name: | Jason R. Thackston | |
| Title: | Vice President | |
[CORPORATE SEAL]
Attest:
| /s/ Susan Y. Fleming | ||
| Name: | Susan Y. Fleming | |
| Title: | Assistant Corporate Secretary | |
| Executed, sealed and delivered by AVISTA CORPORATION in the presence of: | ||
| /s/ Diane C. Thoren | ||
| Name: | Diane C. Thoren | |
| /s/ Damien Lysiak | ||
| Name: | Damien Lysiak | |
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| CITIBANK, N.A., AS TRUSTEE | ||
| By: | /s/ Wafaa Orfy | |
| Name: | Wafaa Orfy | |
| Title: | Vice President | |
| Corporate Stamp | ||
| [CORPORATE STAMP] | ||
Attest:
| /s/ Marian O’Connor | ||
| Name: | Marian O’Connor | |
| Title: | Vice President | |
| Executed, sealed and delivered by CITIBANK, N.A., as trustee, in the presence of: | ||
| /s/ John Hannon | ||
| Name: | John Hannon | |
| /s/ Louis Piscitelli | ||
| Name: | Louis Piscitelli | |
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| STATE OF WASHINGTON | ) | |||
| ) | ss.: | |||
| COUNTY OF SPOKANE | ) |
On the 10th day of September, 2009, before me personally appeared Jason R. Thackston, to me known to be a Vice President of AVISTA CORPORATION, one of the corporations that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said Corporation for the uses and purposes therein mentioned and on oath stated that he was authorized to execute said instrument and that the seal affixed is the corporate seal of said Corporation.
On the 10 th day of September, 2009, before me, a Notary Public in and for the State and County aforesaid, personally appeared Jason R. Thackston, known to me to be a Vice President of AVISTA CORPORATION, one of the corporations that executed the within and foregoing instrument and acknowledged to me that such Corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.
| /s/ Anita L. Swanson |
| Notary Public |
| Notary Public | Anita L. Swanson | |||
| State of Washington | State of Washington | |||
| Anita L. Swanson | Notary Public | |||
| My Commission Expires | Commission Expires: June 17, 2013 | |||
| June 17, 2013 |
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| STATE OF NEW YORK | ) | |
| ) ss.: | ||
| COUNTY OF NEW YORK | ) |
On the 1st day of September, 2009 before me personally appeared Wafaa Orfy, to me known to be a Vice President of CITIBANK, N.A., one of the corporations that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said Corporation for the uses and purposes therein mentioned and on oath stated that she was authorized to execute said instrument and that the seal affixed is the corporate seal of said Corporation.
On the 1st day of September, 2009, before me, a Notary Public in and for the State and County aforesaid, personally appeared Wafaa Orfy, known to me to be a Vice President of CITIBANK, N.A., one of the corporations that executed the within and foregoing instrument and acknowledged to me that such Corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.
| /s/ Zenaida Santiago |
| Notary Public |
| Notary Stamp |
| Zenaida Santiago |
| Notary Public – State of New York |
| No. 01SA6152564 |
| Qualified in Kings County |
| Commission Expires: September 18, 2010 |
16
EXHIBIT A
MORTGAGE, SUPPLEMENTAL INDENTURES
AND SERIES OF BONDS
| MORTGAGE OR SUPPLEMENTAL INDENTURE | DATED AS OF | SERIES | PRINCIPAL AMOUNT ISSUED | PRINCIPAL AMOUNT OUTSTANDING | |||||||
| NO. | DESIGNATION | ||||||||||
| Original | June 1, 1939 | 1 | 3 1/2% Series due 1964 | $ | 22,000,000 | None | |||||
| First | October 1, 1952 | 2 | 3 3/4% Series due 1982 | 30,000,000 | None | ||||||
| Second | May 1, 1953 | 3 | 3 7/8% Series due 1983 | 10,000,000 | None | ||||||
| Third | December 1, 1955 | None | |||||||||
| Fourth | March 15, 1957 | None | |||||||||
| Fifth | July 1, 1957 | 4 | 4 7/8% Series due 1987 | 30,000,000 | None | ||||||
| Sixth | January 1, 1958 | 5 | 4 1/8% Series due 1988 | 20,000,000 | None | ||||||
| Seventh | August 1, 1958 | 6 | 4 3/8% Series due 1988 | 15,000,000 | None | ||||||
| Eighth | January 1, 1959 | 7 | 4 3/4% Series due 1989 | 15,000,000 | None | ||||||
| Ninth | January 1, 1960 | 8 | 5 3/8% Series due 1990 | 10,000,000 | None | ||||||
| Tenth | April 1, 1964 | 9 | 4 5/8% Series due 1994 | 30,000,000 | None | ||||||
| Eleventh | March 1,1965 | 10 | 4 5/8% Series due 1995 | 10,000,000 | None | ||||||
| Twelfth | May 1, 1966 | None | |||||||||
| Thirteenth | August 1, 1966 | 11 | 6% Series due 1996 | 20,000,000 | None | ||||||
| Fourteenth | April 1, 1970 | 12 | 9 1/4% Series due 2000 | 20,000,000 | None | ||||||
| Fifteenth | May 1, 1973 | 13 | 7 7/8% Series due 2003 | 20,000,000 | None | ||||||
| Sixteenth | February 1, 1975 | 14 | 9 3/8% Series due 2005 | 25,000,000 | None | ||||||
| Seventeenth | November 1, 1976 | 15 | 8 3/4% Series due 2006 | 30,000,000 | None | ||||||
| Eighteenth | June 1, 1980 | None | |||||||||
| Nineteenth | January 1, 1981 | 16 | 14 1/8% Series due 1991 | 40,000,000 | None | ||||||
A-1
| Twentieth | August 1, 1982 | 17 | 15 3/4% Series due 1990-1992 | 60,000,000 | None | |||||
| Twenty-First | September 1, 1983 | 18 | 13 1/2% Series due 2013 | 60,000,000 | None | |||||
| Twenty-Second | March 1, 1984 | 19 | 13 1/4% Series due 1994 | 60,000,000 | None | |||||
| Twenty-Third | December 1, 1986 | 20 | 9 1/4% Series due 2016 | 80,000,000 | None | |||||
| Twenty-Fourth | January 1, 1988 | 21 | 10 3/8% Series due 2018 | 50,000,000 | None | |||||
| Twenty-Fifth | October 1, 1989 | 22 23 | 7 1/8% Series due 2013 7 2/5% Series due 2016 | 66,700,000 17,000,000 | None None | |||||
| Twenty-Sixth | April 1, 1993 | 24 | Secured Medium-Term Notes, Series A ($250,000,000 authorized) | 250,000,000 | 48,000,000 | |||||
| Twenty-Seventh | January 1, 1994 | 25 | Secured Medium-Term Notes, Series B ($250,000,000 authorized) | 161,000,000 | 5,000,000 | |||||
| Twenty-Eighth | September 1, 2001 | 26 | Collateral Series due 2002 | 220,000,000 | None | |||||
| Twenty-Ninth | December 1, 2001 | 27 | 7.75% Series due 2007 | 150,000,000 | None | |||||
| Thirtieth | May 1, 2002 | 28 | Collateral Series due 2003 | 225,000,000 | None | |||||
| Thirty-first | May 1, 2003 | 29 | Collateral Series due 2004 | 245,000,000 | None | |||||
| Thirty-second | September 1, 2003 | 30 | 6.125% Series due 2013 | 45,000,000 | 45,000,000 | |||||
| Thirty-third | May 1, 2004 | 31 | Collateral Series due 2005 | 350,000,000 | None | |||||
| Thirty-fourth | November 1, 2004 | 32 | 5.45% Series due 2019 | 90,000,000 | 90,000,000 | |||||
| Thirty-fifth | December 1, 2004 | 33 | Collateral Series 2004A | 88,850,000 | 50,000,000 | |||||
| Thirty-sixth | December 1, 2004 | 34 | Collateral Series 2004B | 66,700,000 | None | |||||
| 35 | Collateral Series 2004C | 17,000,000 | None | |||||||
| Thirty-seventh | December 1, 2004 | 36 | Collateral Series 2004D | 350,000,000 | None | |||||
| Thirty-eighth | May 1, 2005 | 37 | Collateral Series 2005B | 66,700,000 | 66,700,000 | |||||
| 38 | Collateral Series 2005C | 17,000,000 | None |
A-2
| Thirty-ninth | November 1, 2005 | 39 | 6.25% Series due 2035 | 100,000,000 | 100,000,000 | |||||
| 50,000,000 | 50,000,000 | |||||||||
| Fortieth | April 1, 2006 | 40 | Collateral Series due 2011 | 320,000,000 | 320,000,000 | |||||
| Forty-first | December 1, 2006 | 41 | 5.70% Series due 2037 | 150,000,000 | 150,000,000 | |||||
| Forty-second | April 1, 2008 | 42 | 5.95% Series due 2018 | 250,000,000 | 250,000,000 | |||||
| Forty-third | November 1, 2008 | 43 | Collateral Series 2008A | 200,000,000 | 200,000,000 | |||||
| Forty-fourth | December 1, 2008 | 44 | 7.25% Series due 2013 | 30,000,000 | 30,000,000 | |||||
| Forty-fifth | December 1, 2008 | 45 | Collateral Series 2008B | 17,000,000 | 17,000,000 |
A-3
EXHIBIT B(1)
FILING AND RECORDING OF
FORTY-THIRD SUPPLEMENTAL INDENTURE
FILING IN STATE OFFICES
| State | Office of | Date | Financing Statement Document Number | |||
| Washington | Secretary of State | 12/5/08 | 2008 ###-###-####-7 | |||
| Idaho | Secretary of State | 12/5/08 | B2008-1057481-7 | |||
| Montana | Secretary of State | 12/5/08 | 98714342 | |||
| Oregon | Secretary of State | 12/5/08 | 8148959 |
| RECORDING IN COUNTY OFFICES | ||||||||||||
| County | Office of | Real Estate Mortgage Records | Financing Statement Document Number | |||||||||
| Date | Document Number | Book | Page | |||||||||
| Washington | ||||||||||||
| Adams | Auditor | 12/4/08 | 290889 | N/A | N/A | N/A | ||||||
| Asotin | Auditor | 12/4/08 | 309665 | N/A | N/A | N/A | ||||||
| Benton | Auditor | 12/4/08 | 2008-034177 | N/A | N/A | N/A | ||||||
| Douglas | Auditor | 12/4/08 | 3129685 | N/A | N/A | N/A | ||||||
| Ferry | Auditor | 12/4/08 | 273388 | N/A | N/A | N/A | ||||||
| Franklin | Auditor | 12/4/08 | 1727627 | N/A | N/A | N/A | ||||||
| Garfield | Auditor | 12/5/08 | 20080782 | N/A | N/A | N/A | ||||||
| Grant | Auditor | 12/4/08 | 1247030 | N/A | N/A | N/A | ||||||
| Klickitat | Auditor | 12/5/08 | 1080547 | N/A | N/A | N/A | ||||||
| Lewis | Auditor | 12/5/08 | 3317453 | N/A | N/A | N/A | ||||||
| Lincoln | Auditor | 12/4/08 | 2008 0450812 | 98 | 1074 | N/A | ||||||
| Pend Oreille | Auditor | 12/4/08 | 2008-0299831 | N/A | N/A | N/A | ||||||
| Skamania | Auditor | 12/5/08 | 2008171604 | N/A | N/A | N/A | ||||||
| Spokane | Auditor | 12/5/08 | 5740778 | N/A | N/A | N/A | ||||||
| Stevens | Auditor | 12/4/08 | 2008-0011423 | 387 | 2208 | N/A | ||||||
| Thurston | Auditor | 12/16/08 | 4050436 | N/A | N/A | N/A | ||||||
| Whitman | Auditor | 12/4/08 | 690093 | N/A | N/A | N/A | ||||||
| Idaho | ||||||||||||
| Benewah | Recorder | 12/4/08 | 252703 | N/A | N/A | N/A | ||||||
| Bonner | Recorder | 12/4/08 | 763239 | N/A | N/A | N/A | ||||||
| Boundary | Recorder | 12/4/08 | 240254 | N/A | N/A | N/A | ||||||
| Clearwater | Recorder | 12/4/08 | 210360 | N/A | N/A | N/A | ||||||
| Idaho | Recorder | 12/4/08 | 464502 | N/A | N/A | N/A | ||||||
B(1)-1
RECORDING IN COUNTY OFFICES
| County | Office of | Real Estate Mortgage Records | Financing Statement Document Number | |||||||||
| Date | Document Number | Book | Page | |||||||||
| Kootenai | Recorder | 12/4/08 | 2187936000 | N/A | N/A | N/A | ||||||
| Latah | Recorder | 12/4/08 | 526292 | N/A | N/A | N/A | ||||||
| Lewis | Recorder | 12/4/08 | 136744 | N/A | N/A | N/A | ||||||
| Nez Perce | Recorder | 12/5/08 | 763473 | N/A | N/A | N/A | ||||||
| Shoshone | Recorder | 12/4/08 | 449048 | N/A | N/A | N/A | ||||||
| Montana | ||||||||||||
| Big Horn | Clerk & Recorder | 12/5/08 | 340397 | 103 | 193 | N/A | ||||||
| Broadwater | Clerk & Recorder | 12/5/08 | 160000 | 118 | 713 | N/A | ||||||
| Golden Valley | Clerk & Recorder | 12/5/08 | 79787 | M | 13978 | N/A | ||||||
| Meagher | Clerk & Recorder | 12/5/08 | 136592 | F72 | 458 | N/A | ||||||
| Mineral | Clerk & Recorder | 12/5/08 | 104510 | N/A | N/A | N/A | ||||||
| Rosebud | Clerk & Recorder | 12/5/08 | 104368 | 123 | 234 | N/A | ||||||
| Sanders | Clerk & Recorder | 12/5/08 | 64424 | N/A | N/A | N/A | ||||||
| Stillwater | Clerk & Recorder | 12/5/08 | 338558 | N/A | N/A | N/A | ||||||
| Treasure | Clerk & Recorder | 12/5/08 | 80684 | 18 | 968 | N/A | ||||||
| Wheatland | Clerk & Recorder | 12/5/08 | 105496 | M | 20327 | N/A | ||||||
| Yellowstone | Clerk & Recorder | 12/5/08 | 3488418 | N/A | N/A | N/A | ||||||
| Oregon | ||||||||||||
| Douglas | Recorder | 12/5/08 | 2008-021390 | N/A | N/A | N/A | ||||||
| Jackson | Recorder | 12/9/08 | 2008-043889 | N/A | N/A | N/A | ||||||
| Josephine | Recorder | 12/8/08 | 2008-018509 | N/A | N/A | N/A | ||||||
| Klamath | Recorder | 12/9/08 | 2008-016193 | N/A | N/A | N/A | ||||||
| Morrow | Recorder | 12/8/08 | 2008-23153 | N/A | N/A | N/A | ||||||
| Union | Recorder | 12/8/08 | 20085344 | N/A | N/A | N/A | ||||||
| Wallowa | Recorder | 12/8/08 | 08-60951 | N/A | N/A | N/A | ||||||
B(1)-2
EXHIBIT B(2)
FILING AND RECORDING OF
FORTY-FOURTH SUPPLEMENTAL INDENTURE
FILING IN STATE OFFICES
| State | Office of | Date | Financing Statement Document Number | |||
| Washington | Secretary of State | 2/2/09 | 2009-036-2509-0 | |||
| Idaho | Secretary of State | 2/2/09 | B-2009-1059651-1 | |||
| Montana | Secretary of State | 2/2/09 | 99324582 | |||
| Oregon | Secretary of State | 2/3/09 | 8187624 |
RECORDING IN COUNTY OFFICES
| County | Office of | Real Estate Mortgage Records | Financing Statement Document Number | |||||||||
| Date | Document Number | Book | Page | |||||||||
| Washington | ||||||||||||
| Adams | Auditor | 2/2/09 | 291317 | N/A | N/A | N/A | ||||||
| Asotin | Auditor | 2/2/09 | 310520 | N/A | N/A | N/A | ||||||
| Benton | Auditor | 2/3/09 | 2009-002689 | N/A | N/A | N/A | ||||||
| Douglas | Auditor | 2/2/09 | 3131070 | N/A | N/A | N/A | ||||||
| Ferry | Auditor | 2/2/09 | 273681 | N/A | N/A | N/A | ||||||
| Franklin | Auditor | 2/3/09 | 1729713 | N/A | N/A | N/A | ||||||
| Garfield | Auditor | 2/3/09 | 20090063 | N/A | N/A | N/A | ||||||
| Grant | Auditor | 2/2/09 | 1249673 | N/A | N/A | N/A | ||||||
| Klickitat | Auditor | 2/2/09 | 1081254 | N/A | N/A | N/A | ||||||
| Lewis | Auditor | 2/9/09 | 3320361 | N/A | N/A | N/A | ||||||
| Lincoln | Auditor | 2/2/09 | 2009-0451230 | 98 | 2579 | N/A | ||||||
| Pend Oreille | Auditor | 2/3/09 | 2009 0300463 | N/A | N/A | N/A | ||||||
| Skamania | Auditor | 2/2/09 | 2009171978 | N/A | N/A | N/A | ||||||
| Spokane | Auditor | 2/2/09 | 5755075 | N/A | N/A | N/A | ||||||
| Stevens | Auditor | 2/2/09 | 2009-0000844 | 389 | 750 | N/A | ||||||
| Thurston | Auditor | 2/17/09 | 4060503 | N/A | N/A | N/A | ||||||
| Whitman | Auditor | 2/2/09 | 690854 | N/A | N/A | N/A | ||||||
| Idaho | ||||||||||||
| Benewah | Recorder | 2/2/09 | 253135 | N/A | N/A | N/A | ||||||
| Bonner | Recorder | 2/2/09 | 765949 | N/A | N/A | N/A | ||||||
| Boundary | Recorder | 2/2/09 | 240950 | N/A | N/A | N/A | ||||||
| Clearwater | Recorder | 2/2/09 | 210763 | N/A | N/A | N/A | ||||||
B(2)-1
RECORDING IN COUNTY OFFICES
| County | Office of | Real Estate Mortgage Records | Financing Statement Document Number | |||||||||
| Date | Document Number | Book | Page | |||||||||
| Idaho | Recorder | 2/2/09 | 465097 | N/A | N/A | N/A | ||||||
| Kootenai | Recorder | 2/2/09 | 2194855000 | N/A | N/A | N/A | ||||||
| Latah | Recorder | 2/4/09 | 527210 | N/A | N/A | N/A | ||||||
| Lewis | Recorder | 2/2/09 | 136947 | N/A | N/A | N/A | ||||||
| Nez Perce | Recorder | 2/2/09 | 765111 | N/A | N/A | N/A | ||||||
| Shoshone | Recorder | 2/2/09 | 450008 | N/A | N/A | N/A | ||||||
| Montana | ||||||||||||
| Big Horn | Clerk & Recorder | 2/2/09 | 340661 | 103 | 770 | N/A | ||||||
| Broadwater | Clerk & Recorder | 2/2/09 | 160311 | 119 | 582 | N/A | ||||||
| Golden Valley | Clerk & Recorder | 2/9/09 | 79857 | M | 14085 | N/A | ||||||
| Meagher | Clerk & Recorder | 2/3/09 | 136708 | N/A | N/A | N/A | ||||||
| Mineral | Clerk & Recorder | 2/2/09 | 104703 | N/A | N/A | N/A | ||||||
| Rosebud | Clerk & Recorder | 2/3/09 | 104724 | 124 | 552 | N/A | ||||||
| Sanders | Clerk & Recorder | 2/2/09 | 64872 | N/A | N/A | N/A | ||||||
| Stillwater | Clerk & Recorder | 2/3/09 | 339086 | N/A | N/A | N/A | ||||||
| Treasure | Clerk & Recorder | 2/2/09 | 80727 | 19 | 6 | N/A | ||||||
| Wheatland | Clerk & Recorder | 2/2/09 | 105544 | M | 20448 | N/A | ||||||
| Yellowstone | Clerk & Recorder | 2/2/09 | 3493647 | N/A | N/A | N/A | ||||||
| Oregon | ||||||||||||
| Douglas | Recorder | 2/2/09 | 2009-001611 | N/A | N/A | N/A | ||||||
| Jackson | Recorder | 2/4/09 | 2009-003814 | N/A | N/A | N/A | ||||||
| Josephine | Recorder | 2/3/09 | 2009-001963 | N/A | N/A | N/A | ||||||
| Klamath | Recorder | 2/3/09 | 2009-001260 | N/A | N/A | N/A | ||||||
| Morrow | Recorder | 2/3/09 | 2009-23373 | N/A | N/A | N/A | ||||||
| Union | Recorder | 2/3/09 | 20090355 | N/A | N/A | N/A | ||||||
| Wallowa | Recorder | 2/3/09 | 61203 | N/A | N/A | N/A | ||||||
B(2)-2
EXHIBIT B(3)
FILING AND RECORDING OF
FORTY-FIFTH SUPPLEMENTAL INDENTURE
FILING IN STATE OFFICES
| State | Office of | Date | Financing Statement Document Number | |||
| Washington | Secretary of State | 3/9/09 | 2009-070-0651-2 | |||
| Idaho | Secretary of State | 3/9/09 | B2009-1060962-0 | |||
| Montana | Secretary of State | 3/9/09 | 99707012 | |||
| Oregon | Secretary of State | 3/10/09 | 8214623 |
RECORDING IN COUNTY OFFICES
| County | Office of | Real Estate Mortgage Records | Financing Statement Document Number | |||||||||
| Date | Document Number | Book | Page | |||||||||
| Washington | ||||||||||||
| Adams | Auditor | 3/9/09 | 291613 | N/A | N/A | N/A | ||||||
| Asotin | Auditor | 3/9/098 | 311207 | N/A | N/A | N/A | ||||||
| Benton | Auditor | 3/9/098 | 2009-005961 | N/A | N/A | N/A | ||||||
| Douglas | Auditor | 3/9/09 | 3132197 | N/A | N/A | N/A | ||||||
| Ferry | Auditor | 3/9/09 | 273865 | N/A | N/A | N/A | ||||||
| Franklin | Auditor | 3/9/09 | 1731150 | N/A | N/A | N/A | ||||||
| Garfield | Auditor | 3/9/09 | 20090114 | N/A | N/A | N/A | ||||||
| Grant | Auditor | 3/9/09 | 1251444 | N/A | N/A | N/A | ||||||
| Klickitat | Auditor | 3/9/09 | 1081726 | N/A | N/A | N/A | ||||||
| Lewis | Auditor | 3/9/09 | 3322118 | N/A | N/A | N/A | ||||||
| Lincoln | Auditor | 3/9/09 | 2009 0451494 | 98 | 3519 | N/A | ||||||
| Pend Oreille | Auditor | 3/10/09 | 2009 0300822 | N/A | N/A | N/A | ||||||
| Skamania | Auditor | 3/9/09 | 2009172251 | N/A | N/A | N/A | ||||||
| Spokane | Auditor | 3/9/09 | 5766529 | N/A | N/A | N/A | ||||||
| Stevens | Auditor | 3/9/09 | 2009-0001853 | 390 | 1704 | N/A | ||||||
| Thurston | Auditor | 3/10/09 | 4065672 | N/A | N/A | N/A | ||||||
| Whitman | Auditor | 3/9/09 | 691444 | N/A | N/A | N/A | ||||||
| Idaho | ||||||||||||
| Benewah | Recorder | 3/9/09 | 253437 | N/A | N/A | N/A | ||||||
| Bonner | Recorder | 3/9/09 | 768120 | N/A | N/A | N/A | ||||||
| Boundary | Recorder | 3/9/09 | 241493 | N/A | N/A | N/A | ||||||
| Clearwater | Recorder | 3/9/09 | 211069 | N/A | N/A | N/A | ||||||
B(3)-1
RECORDING IN COUNTY OFFICES
| County | Office of | Real Estate Mortgage Records | Financing Statement Document Number | |||||||||
| Date | Document Number | Book | Page | |||||||||
| Idaho | Recorder | 3/9/09 | 465603 | N/A | N/A | N/A | ||||||
| Kootenai | Recorder | 3/9/09 | 2199978000 | N/A | N/A | N/A | ||||||
| Latah | Recorder | 3/11/09 | 527892 | N/A | N/A | N/A | ||||||
| Lewis | Recorder | 3/9/09 | 137065 | N/A | N/A | N/A | ||||||
| Nez Perce | Recorder | 3/9/09 | 766400 | N/A | N/A | N/A | ||||||
| Shoshone | Recorder | 3/9/09 | 450515 | N/A | N/A | N/A | ||||||
| Montana | ||||||||||||
| Big Horn | Clerk & Recorder | 3/9/09 | 340811 | 104 | 176 | N/A | ||||||
| Broadwater | Clerk & Recorder | 3/10/09 | 160548 | 120 | 437 | N/A | ||||||
| Golden Valley | Clerk & Recorder | 3/9/09 | 79915 | M | 14166 | N/A | ||||||
| Meagher | Clerk & Recorder | 3/9/09 | 136757 | N/A | N/A | N/A | ||||||
| Mineral | Clerk & Recorder | 3/9/09 | 104797 | N/A | N/A | N/A | ||||||
| Rosebud | Clerk & Recorder | 3/9/09 | 104907 | 125 | 42 | N/A | ||||||
| Sanders | Clerk & Recorder | 3/9/09 | 65223 | N/A | N/A | N/A | ||||||
| Stillwater | Clerk & Recorder | 3/9/09 | 339455 | N/A | N/A | N/A | ||||||
| Treasure | Clerk & Recorder | 3/9/09 | 80759 | 19 | 91 | N/A | ||||||
| Wheatland | Clerk & Recorder | 3/9/09 | 105599 | M | 20569 | N/A | ||||||
| Yellowstone | Clerk & Recorder | 4/2/09 | 3501330 | N/A | N/A | N/A | ||||||
| Oregon | ||||||||||||
| Douglas | Recorder | 12/5/08 | 2009-005038 | N/A | N/A | N/A | ||||||
| Jackson | Recorder | 12/9/08 | 2009-008226 | N/A | N/A | N/A | ||||||
| Josephine | Recorder | 12/8/08 | 2009-003951 | N/A | N/A | N/A | ||||||
| Klamath | Recorder | 12/9/08 | 2009-003396 | N/A | N/A | N/A | ||||||
| Morrow | Recorder | 12/8/08 | 2009-23575 | N/A | N/A | N/A | ||||||
| Union | Recorder | 12/8/08 | 20090822 | N/A | N/A | N/A | ||||||
| Wallowa | Recorder | 12/8/08 | 61378 | N/A | N/A | N/A | ||||||
B(3)-2
EXHIBIT C
PROPERTY ADDITIONS
First
BUSINESS OFFICE/S AND/OR REAL ESTATE, in the State of Washington, to wit:
1. Spokane County, Washington: “Jimmy Dean Warehouse”; Property No. WA-32-004; Grantor: Kathryn Taylor.; Portions of Tracts 15 & 16, First Addition to Orchard Park, located in the Northwest Quarter (NW/4), of Section 12, Township 25 North, Range 43 East, W.M.
C(1)-1
EXHIBIT D
(Form of Bond)
This bond is subject to restrictions on transfer,
as hereinafter set forth
CUSIP [ ]
AVISTA CORPORATION
First Mortgage Bond,
5.125% Series due 2022
| REGISTERED | REGISTERED | |
| NO. | $ | |
AVISTA CORPORATION, a corporation of the State of Washington (hereinafter called the Company), for value received, hereby promises to pay to
, or registered assigns, on April 1, 2022
DOLLARS
and to pay the registered owner hereof interest thereon semi-annually in arrears on April 1 and October 1 in each year (each such date being hereinafter called an “Interest Payment Date”), commencing April 1, 2010 and at Maturity (as hereinafter defined), at the rate of five and one hundred twenty-five one-thousandths percentum (5.125%) per annum computed on the basis of a 360-day year consisting of twelve 30-day months, until the Company’s obligation with respect to the payment of such principal shall have been discharged. This bond shall bear interest from September 22, 2009 or from the most recent Interest Payment Date on or prior to the date of this bond to which interest on the bonds of this series has been paid; provided, however, that if the date of this bond shall be after a Record Date (as hereinafter defined) and prior to the corresponding Interest Payment Date, this bond shall bear interest from such Interest Payment Date. The principal of and premium, if any, and interest on this bond payable at Maturity shall be payable upon presentation hereof at the office or agency of the Company in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for public and private debts. The interest on this bond (other than interest payable at Maturity) shall be paid by check, in the similar coin or currency, mailed to the registered owner hereof as of the close of
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business on the March 15 or September 15, as the case may be, next preceding each Interest Payment Date (each such date being herein called a “Record Date”); provided, however, that if such registered owner shall be a securities depositary, such payment shall be made by such other means in lieu of check as shall be agreed upon by the Company, the Trustee and such registered owner. Interest payable at Maturity shall be paid to the person to whom principal shall be paid. As used herein, the term “Maturity” shall mean the date on which the principal of this bond becomes due and payable, whether at stated maturity, upon redemption or acceleration, or otherwise.
This bond is one of an issue of bonds of the Company issuable in series and is one of a series known as its First Mortgage Bonds, 5.125% Series due 2022, all bonds of all such series being issued and issuable under and equally secured (except insofar as any sinking or other fund, established in accordance with the provisions of the Mortgage hereinafter mentioned, may afford additional security for the bonds of any particular series) by a Mortgage and Deed of Trust, dated as of June 1, 1939 (the “Original Mortgage”), executed by the Company (formerly known as The Washington Water Power Company) to City Bank Farmers Trust Company and Ralph E. Morton, as Trustees (Citibank, N.A., successor Trustee to both said Trustees). The Original Mortgage has been amended and supplemented by various supplemental indentures and other instruments, including the Forty-sixth Supplemental Indenture, dated as of September 1, 2009, and, as so amended and supplemented, is herein called the “Mortgage”. Reference is made to the Mortgage for a description of the property mortgaged and pledged, the nature and extent of the security, the rights of the holders of the bonds and of the Trustee in respect thereof, the duties and immunities of the Trustee and the terms and conditions upon which the bonds are and are to be secured and the circumstances under which additional bonds may be issued. If there shall be a conflict between the terms of this bond and the provisions of the Mortgage, the provisions of the Mortgage shall control to the extent permitted by law. The holder of this bond, by its acceptance hereof, shall be deemed to have consented and agreed to all of the terms and provisions of the Mortgage and, further, in the event that such holder shall not be the sole beneficial owner of this bond, shall be deemed to have agreed to use all commercially reasonable efforts to cause all direct and indirect beneficial owners of this bond to have knowledge of the terms and provisions of the Mortgage and of this bond and to comply therewith, including particularly, but without limitation, any provisions or restrictions in the Mortgage regarding the transfer or exchange of such beneficial interests and any legend set forth on this bond.
The Mortgage may be modified or altered by affirmative vote of the holders of at least 60% in principal amount of the bonds outstanding under the Mortgage, considered as one class, or, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected, then such modification or alteration may be effected with the affirmative vote only of 60% in principal amount of the bonds outstanding of the series so to be affected, considered as one class, and, furthermore, for limited purposes, the Mortgage may be modified or altered without any consent or other action of holders
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of any series of bonds. No modification or alteration shall, however, permit an extension of the Maturity of the principal of, or interest on, this bond or a reduction in such principal or the rate of interest hereon or any other modification in the terms of payment of such principal or interest or the creation of any lien equal or prior to the lien of the Mortgage or deprive the holder of a lien on the mortgaged and pledged property without the consent of the holder hereof.
The principal hereof may be declared or may become due prior to the stated maturity date on the conditions, in the manner and at the time set forth in the Mortgage, upon the occurrence of a Completed Default as in the Mortgage provided.
As provided in the Mortgage and subject to certain limitations therein set forth, this bond or any portion of the principal amount hereof will be deemed to have been paid if there has been irrevocably deposited with the Trustee moneys or direct obligations of or obligations guaranteed by the United States of America, the principal of and interest on which when due, and without regard to any reinvestment thereof, will provide moneys which, together with moneys so deposited, will be sufficient to pay when due the principal of and premium, if any, and interest on this bond when due.
The Mortgage contains terms, provisions and conditions relating to the consolidation or merger of the Company with or into, and the conveyance or other transfer, or lease, of assets to, another corporation and to the assumption by such other corporation, in certain circumstances, of all of the obligations of the Company under the Mortgage and on the bonds secured thereby.
In the manner prescribed in the Mortgage, this bond is transferable by the registered owner hereof in person, or by his duly authorized attorney, at the office or agency of the Company in the Borough of Manhattan, The City of New York, upon surrender and cancellation of this bond, together with a written instrument of transfer whenever required by the Company duly executed by the registered owner or by its duly authorized attorney, and, thereupon, a new fully registered bond of the same series for a like principal amount will be issued to the transferee in exchange herefor as provided in the Mortgage. The Company and the Trustee may deem and treat the person in whose name this bond is registered as the absolute owner hereof for the purpose of receiving payment and for all other purposes.
In the manner prescribed in the Mortgage, any bonds of this series, upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City of New York, are exchangeable for a like aggregate principal amount of bonds of the same series of other authorized denominations.
The bonds of this series shall be redeemable in whole at any time or in part from time to time, at the option of the Company, upon notice mailed as provided in Section 52 of the Mortgage, at the option of the Company at a redemption price equal to the greater of
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(a) 100% of the principal amount of the bonds being redeemed, and
(b) the sum of the present values of the remaining scheduled payments of principal of and interest (not including any portion of any scheduled payment of interest which accrued prior to the redemption date) on the bonds being redeemed discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at a discount rate equal to the Treasury Yield (as hereinafter defined) plus 30 basis points,
plus, in the case of either (i) or (ii) above, whichever is applicable, accrued and unpaid interest on such bonds to the date of redemption.
“Treasury Yield” means, with respect to any redemption of the bonds of this series, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price. The Treasury Yield shall be calculated as of the third business day preceding the redemption date or, if the bonds to be redeemed are to be caused to be deemed to have been paid within the meaning of Section 106 of the Original Mortgage, as amended, prior to the redemption date, then as of the third business day prior to the earlier of (x) the date notice of such redemption is mailed to bondholders pursuant to Section 52 of the Original Mortgage, as amended, and (y) the date irrevocable arrangements with the Trustee for the mailing of such notice shall have been made, as the case may be (the “Calculation Date”).
“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the bonds of this series that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such bonds.
“Comparable Treasury Price” means (A) the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third business day preceding the Calculation Date, as set forth in the H.15 Daily Update of the Federal Reserve Bank of New York or (B) if such release (or any successor release) is not published or does not contain such prices on such business day, the Reference Treasury Dealer Quotation for the Calculation Date.
“H.15(519)” means the weekly statistical release entitled “Statistical Release H.15 (519)”, or any successor publication, published by the Board of Governors of the Federal Reserve System.
“H.15 Daily Update” means the daily update of H.15(519) available through the worldwide website of the Board of Governors of the Federal Reserve System or any successor site or publication.
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“Independent Investment Banker” means UBS Securities LLC or J. P. Morgan Securities Inc. or, if so determined by the Company, any other independent investment banking institution of national standing appointed by the Company and reasonably acceptable to the Trustee.
“Reference Treasury Dealer Quotation” means, with respect to the Reference Treasury Dealer, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount and quoted in writing to the Trustee by such Reference Treasury Dealer prior to the close of business on the third business day preceding the Calculation Date).
“Reference Treasury Dealer” means a primary U.S. Government securities dealer in the United States appointed by the Company and reasonably acceptable to the Trustee.
No recourse shall be had for the payment of the principal of or premium, if any, or interest on this bond against any incorporator or any past, present or future subscriber to the capital stock, stockholder, officer or director of the Company or of any predecessor or successor corporation, as such, either directly or through the Company or any predecessor or successor corporation, under any rule of law, statute or constitution or by the enforcement of any assessment or otherwise, all such liability of incorporators, subscribers, stockholders, officers and directors being released by the holder or owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Mortgage.
This bond shall not become obligatory until Citibank, N.A., the Trustee under the Mortgage, or its successor thereunder, shall have signed the form of certificate endorsed hereon.
IN WITNESS WHEREOF, AVISTA CORPORATION has caused this bond to be signed in its corporate name by its President or one of its Vice Presidents by his signature or a facsimile thereof, and its corporate seal to be impressed or imprinted hereon and attested by its Corporate Secretary or one of its Assistant Corporate Secretaries by his signature or a facsimile thereof.
| Dated: | AVISTA CORPORATION | |||||
| By: |
| |||||
| ATTEST: |
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TRUSTEE’S CERTIFICATE
This bond is one of the bonds of the series herein designated, described or provided for in the within-mentioned Mortgage.
| CITIBANK, N.A. | ||
| Trustee | ||
| By: |
| |
| Authorized Officer | ||
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DEPOSITARY LEGEND
This global bond is held by Cede & Co., as nominee for The Depository Trust Company (The “Depositary”) for the benefit of the beneficial owners hereof. This bond may not be transferred, nor may any purported transfer be registered, except that (i) this bond may be transferred in whole, and appropriate registration of transfer effected, if such transfer is by Cede & Co., as nominee for the Depositary, to the Depositary, or by the Depositary to another nominee thereof, or by any nominee of the Depositary to any other nominee thereof, or by the Depositary or any nominee thereof to any successor bond depositary or any nominee thereof; and (ii) this bond may be transferred, and appropriate registration of transfer effected, to the beneficial holders hereof, and thereafter shall be transferable without restrictions (except as provided in the preceding paragraph) if: (A) the Depositary, or any successor securities depositary, shall have notified the Company and the Trustee that (I) it is unwilling or unable to continue to act as securities depositary with respect to this bond or (II) it is no longer a clearing agency registered under the Securities Exchange Act of 1934, as amended, and, in either case, the Trustee shall not have been notified by the Company within one hundred twenty (120) days of the identity of a successor securities depositary with respect to this bond; or (B) the Company shall have delivered to the Trustee a written order to the effect that this bond shall be so transferable on and after a date specified therein.
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ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
[please insert social security or other identifying number of assignee]
[please print or typewrite name and address of assignee]
the within bond of AVISTA CORPORATION and does hereby irrevocably constitute and appoint , Attorney, to transfer said bond on the books of the within-mentioned Company, will full power of substitution in the premises.
| Dated: | ||||
| Notice: The signature to this assignment must correspond with the name as written upon the face of the bond in every particular without alteration or enlargement or any change whatsoever. |
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EXHIBIT E
Amendments to Original Mortgage,
as heretofore amended
1. Section 3 in Article I
(a) Section 3 in Article I of the Original Mortgage, as heretofore amended, is hereby amended by adding a new paragraph following the definition of “Opinion of Counsel,” reading as follows:
The term “Executive Committee” shall mean the Executive Committee of the Board of Directors of the Company or any other duly authorized committee of the Board of Directors.
(b) Section 3 in Article I of the Original Mortgage, as heretofore amended, is hereby further amended by adding a new paragraph at the end thereof, reading as follows:
Unless this Indenture expressly requires otherwise, any certificate or other document to be delivered by the Company hereunder may be signed, and any action to be taken by the Company hereunder may be taken on behalf of the Company, by any officer or other employee of the Company so authorized by Resolution, by the Company’s organizational documents or by applicable law.
2. Section 8 in Article II
(a) Section 8 in Article II of the Original Mortgage, as heretofore amended (prior to the indented clauses (a), (b), (c) and (d) in said Section 8), is hereby amended as indicated in subparagraph (i) below, with strikeouts showing deletions and underlining showing additions, subparagraph (ii) below containing only the new text of such provision as amended:
(i) SECTION 8. At the option of the Company, the bonds issued hereunder may be issued in one or more series, the bonds of each series (other than the 3 1/2% Series due 1964, hereinafter in Section 19 described) maturing on such date or dates and bearing interest at such rate or rates as the Board of Directors of the Company prior to the authentication thereof may determine. Subject to the provisions of Section 19 hereof as to the 3 1/2% Series due 1964, the form of each series of bonds issued hereunder and of the coupons to be attached to the coupon bonds of such series shall be established by Resolution of the Board of Directors of the Company or by Treasurer’s Certificate, or shall be set forth in an indenture supplemental hereto. The bonds and coupons of any
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one or more series may be expressed in one or more foreign languages, if also expressed in the English language. The English text shall govern the construction thereof and both or all texts shall constitute but a single obligation. The English text of the coupon bonds, coupons, fully registered bonds and the Corporate Trustee’s certificate shall be respectively substantially of the tenor and purport above recited, provided, however, that the form of each series, as established by the Board of DirectorsCompany, shall specify the descriptive title of the bonds (which shall contain the words “Mortgage Bond”), the designation of the series, the date of the coupon bonds of that series, the rate or rates of interest to be borne by the bonds of that series, the coin or currency in which payable, the date or dates of maturity, the dates for the payment of interest, and a place for the payment of principal and interest. Subject to the provisions of Section 19 hereof with respect to the 3 1/2% Series due 1964, any series of bonds may also contain such provisions not inconsistent with the provisions of this Indenture as the Board of DirectorsCompany may, in its discretion, cause to be inserted therein:
(ii) SECTION 8. At the option of the Company, the bonds issued hereunder may be issued in one or more series, the bonds of each series (other than the 3 1/2% Series due 1964, hereinafter in Section 19 described) maturing on such date or dates and bearing interest at such rate or rates as the Company prior to the authentication thereof may determine. Subject to the provisions of Section 19 hereof as to the 3 1/2% Series due 1964, the form of each series of bonds issued hereunder and of the coupons to be attached to the coupon bonds of such series shall be established by Resolution or by Treasurer’s Certificate, or shall be set forth in an indenture supplemental hereto. The bonds and coupons of any one or more series may be expressed in one or more foreign languages, if also expressed in the English language. The English text shall govern the construction thereof and both or all texts shall constitute but a single obligation. The English text of the coupon bonds, coupons, fully registered bonds and the Corporate Trustee’s certificate shall be respectively substantially of the tenor and purport above recited, provided, however, that the form of each series, as established by the Company, shall specify the descriptive title of the bonds (which shall contain the words “Mortgage Bond”), the designation of the series, the date of the coupon bonds of that series, the rate or rates of interest to be borne by the bonds of that series, the coin or currency in which payable, the date or dates of maturity, the dates for the payment of interest, and a place for the payment of principal and interest. Subject to the provisions of Section 19 hereof with respect to the 3 1/2% Series due 1964, any series of bonds may also contain such provisions not inconsistent with the provisions of this Indenture as the Company may, in its discretion, cause to be inserted therein:
(b) Indented clause (c) in Section 8 in Article II of the Original Mortgage, as heretofore amended, is hereby amended as indicated in subparagraph (i) below, with
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strikeouts showing deletions and underlining showing additions, subparagraph (ii) below containing only the new text of such provision as amended:
(i)(c) permitting the bondholders to make, at a specified place or places, any or all of the following exchanges, viz., exchanges of coupon bonds for fully registered bonds; exchanges of fully registered bonds for coupon bonds; exchanges of coupon bonds for coupon bonds of other authorized denominations; exchanges of fully registered bonds for fully registered bonds of other authorized denominations; and exchanges of bonds of one series for bonds of another series; and such privilege of exchange may in any case be made subject to such conditions, limitations or restrictions as the Board of DirectorsCompany may determine and the privilege of exchange may in any case be conferred upon the holders of bonds of one or more denominations and withheld from the holders of bonds of other denominations of the same series and may in any case be conferred on the holders of fully registered bonds and withheld from the holders of coupon bonds or vice versa;
(ii)(c) permitting the bondholders to make, at a specified place or places, any or all of the following exchanges, viz., exchanges of coupon bonds for fully registered bonds; exchanges of fully registered bonds for coupon bonds; exchanges of coupon bonds for coupon bonds of other authorized denominations; exchanges of fully registered bonds for fully registered bonds of other authorized denominations; and exchanges of bonds of one series for bonds of another series; and such privilege of exchange may in any case be made subject to such conditions, limitations or restrictions as the Company may determine and the privilege of exchange may in any case be conferred upon the holders of bonds of one or more denominations and withheld from the holders of bonds of other denominations of the same series and may in any case be conferred on the holders of fully registered bonds and withheld from the holders of coupon bonds or vice versa;
3. Section 9 in Article II
Section 9 in Article II of the Original Mortgage, as heretofore amended, is hereby amended as indicated in paragraph (a) below, with strikeouts showing deletions and underlining showing additions, paragraph (b) below containing only the new text of such provision as amended:
(a) SECTION 9. Any series of bonds may be executed, authenticated and delivered originally as coupon bonds and/or as fully registered bonds, of such denomination or denominations as the Board of Directors of the Company may from time to time authorizedetermine.
(b) SECTION 9. Any series of bonds may be executed, authenticated and delivered originally as coupon bonds and/or as fully registered bonds, of such denomination or denominations as the Company may from time to time determine.
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4. Section 10 in Article II
Section 10 in Article II of the Original Mortgage, as heretofore amended, is hereby amended as indicated in paragraph (a) below, with strikeouts showing deletions, paragraph (b) below containing only the new text of such provision as amended:
(a) SECTION 10. Every fully registered bond shall be dated as of the date of authentication (except that if any fully registered bond of any series shall be authenticated upon any interest payment date for that series, it shall be dated as of the day following) and shall bear interest from the beginning of the current interest period for that series; provided, however, that if any fully registered bond shall be authenticated and delivered upon a transfer of, or in exchange for, any bond or bonds upon which interest is in default, it shall be dated so that no gain or loss of interest shall result therefrom. The coupon bonds of each series of bonds issued hereunder shall be dated as of such date as may be determined by the Board of Directors of the Company and designated in the form established for such series.
(b) SECTION 10. Every fully registered bond shall be dated as of the date of authentication (except that if any fully registered bond of any series shall be authenticated upon any interest payment date for that series, it shall be dated as of the day following) and shall bear interest from the beginning of the current interest period for that series; provided, however, that if any fully registered bond shall be authenticated and delivered upon a transfer of, or in exchange for, any bond or bonds upon which interest is in default, it shall be dated so that no gain or loss of interest shall result therefrom. The coupon bonds of each series of bonds issued hereunder shall be dated as of such date as may be determined by the Company and designated in the form established for such series.
5. Section 11 in Article II
Section 11 in Article II of the Original Mortgage, as heretofore amended, is hereby amended as indicated in paragraph (a) below, with strikeouts showing deletions and underlining showing additions, paragraph (b) below containing only the new text of such provision as amended:
(a) SECTION 11. Any bond may have imprinted thereon or included therein any legend or legends required in order to comply with any law or with any rules or regulations made pursuant thereto or with the rules or regulations of any stock exchange or to conform to usage, and the Board of Directors of the Company by Resolution, Treasurer’s Certificate or indenture supplemental hereto may at any time amend the form of any legend to be used on bonds then Outstanding so as to comply with any such law, rule or regulation, or so as to conform to usage.
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(b) SECTION 11. Any bond may have imprinted thereon or included therein any legend or legends required in order to comply with any law or with any rules or regulations made pursuant thereto or with the rules or regulations of any stock exchange or to conform to usage, and the Company by Resolution, Treasurer’s Certificate or indenture supplemental hereto may at any time amend the form of any legend to be used on bonds then Outstanding so as to comply with any such law, rule or regulation, or so as to conform to usage.
6. Section 12 in Article II
Section 12 in Article II of the Original Mortgage, as heretofore amended, is hereby amended as indicated in paragraph (a) below, with strikeouts showing deletions, paragraph (b) below containing only the new text of such provision as amended:
(a) SECTION 12. In all cases in which the privilege of exchanging bonds exists and is exercised, the bonds to be exchanged shall be surrendered at such place or places as shall be designated by the Board of Directors or Executive Committee of the Company for the purpose, with all unmatured coupons appertaining thereto (in the case of coupon bonds) and the Corporate Trustee shall authenticate and the Company shall issue in exchange therefor the bond or bonds which the bondholder making the exchange shall be entitled to receive. All bonds so surrendered for exchange shall be in bearer form or if registered, accompanied by a written instrument or instruments of transfer in form approved by the Company duly executed by the registered holder or his duly authorized attorney. All bonds so surrendered for exchange and the unmatured coupons appertaining thereto shall be canceled by the Corporate Trustee and upon the request of the Company may be cremated by the Corporate Trustee and a certificate evidencing the cremation thereof delivered to the Company. Upon every transfer of bonds as permitted by the next succeeding Section, and upon every exchange of bonds, the Company may make a charge therefor sufficient to reimburse it for any tax or taxes or other governmental charge required to be paid by the Company and in addition may charge a sum not exceeding Two Dollars ($2) for each bond issued upon any such transfer or exchange which shall be paid by the party requesting such transfer or exchange as a condition precedent to the exercise of the privilege of making such transfer or exchange. The Company shall not be required to make transfers or exchanges of bonds of any series for a period of ten (10) days next preceding any interest payment date of said series.
(b) SECTION 12. In all cases in which the privilege of exchanging bonds exists and is exercised, the bonds to be exchanged shall be surrendered at such place or places as shall be designated by the Company for the purpose, with all unmatured coupons appertaining thereto (in the case of coupon bonds) and the
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Corporate Trustee shall authenticate and the Company shall issue in exchange therefor the bond or bonds which the bondholder making the exchange shall be entitled to receive. All bonds so surrendered for exchange shall be in bearer form or if registered, accompanied by a written instrument or instruments of transfer in form approved by the Company duly executed by the registered holder or his duly authorized attorney. All bonds so surrendered for exchange and the unmatured coupons appertaining thereto shall be canceled by the Corporate Trustee and upon the request of the Company may be cremated by the Corporate Trustee and a certificate evidencing the cremation thereof delivered to the Company. Upon every transfer of bonds as permitted by the next succeeding Section, and upon every exchange of bonds, the Company may make a charge therefor sufficient to reimburse it for any tax or taxes or other governmental charge required to be paid by the Company and in addition may charge a sum not exceeding Two Dollars ($2) for each bond issued upon any such transfer or exchange which shall be paid by the party requesting such transfer or exchange as a condition precedent to the exercise of the privilege of making such transfer or exchange. The Company shall not be required to make transfers or exchanges of bonds of any series for a period of ten (10) days next preceding any interest payment date of said series.
7. Section 15 in Article II
Section 15 in Article II of the Original Mortgage, as heretofore amended, is hereby amended as indicated in paragraph (a) below, with strikeouts showing deletions, paragraph (b) below containing only the new text of such provision as amended:
(a) SECTION 15. There may be authenticated and delivered and issued from time to time in lieu of (or in exchange for) any definitive bond or bonds authenticated under this Indenture one or more temporary typewritten, printed, lithographed or engraved bonds substantially of the tenor of the bonds hereinbefore described, with or without one or more coupons, and with or without the privilege of registration as to principal only, or as to both principal and interest, and such temporary bond or bonds may be in such denomination or denominations as the Board of Directors of the Company may determine. Until a definitive bond or bonds secured hereby are issued in exchange therefor, each such temporary bond or bonds shall be entitled to the Lien and benefit of this Indenture. Upon the exchange by the Company of definitive coupon bonds or definitive fully registered bonds for temporary bonds (which exchange the Company shall make on request of, and without charge to, the holder, when definitive bonds are ready for delivery) such temporary bond or bonds and any unmatured coupons appertaining thereto shall be canceled by the Corporate Trustee and upon the request of the Company may be cremated by the Corporate Trustee and a certificate evidencing such cremation delivered to the Company. When and as interest is paid upon any unregistered temporary bond without coupons, the fact of such payment shall be noted thereon and interest due on any
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temporary bond which is represented by a coupon shall be paid only upon presentation and surrender of such coupon for cancellation. Temporary bonds without coupons of any series shall bear interest from the beginning of the current interest period for bonds of that series in which such temporary bonds without coupons shall be authenticated. The holder of one or more temporary bonds may exchange the same on the surrender thereof, for cancellation, in bearer form or, if registered, accompanied by a written instrument or instruments of transfer in form approved by the Company, duly executed by the registered holder or by his duly authorized attorney, with all unmatured coupons, if any, appertaining thereto, at the office or agency of the Company, and shall be entitled to receive a temporary bond or bonds of the same series of like aggregate principal amount of such other denominations as the Board of Directors of the Company may determine to issue in exchange.
(b) SECTION 15. There may be authenticated and delivered and issued from time to time in lieu of (or in exchange for) any definitive bond or bonds authenticated under this Indenture one or more temporary typewritten, printed, lithographed or engraved bonds substantially of the tenor of the bonds hereinbefore described, with or without one or more coupons, and with or without the privilege of registration as to principal only, or as to both principal and interest, and such temporary bond or bonds may be in such denomination or denominations as the Company may determine. Until a definitive bond or bonds secured hereby are issued in exchange therefor, each such temporary bond or bonds shall be entitled to the Lien and benefit of this Indenture. Upon the exchange by the Company of definitive coupon bonds or definitive fully registered bonds for temporary bonds (which exchange the Company shall make on request of, and without charge to, the holder, when definitive bonds are ready for delivery) such temporary bond or bonds and any unmatured coupons appertaining thereto shall be canceled by the Corporate Trustee and upon the request of the Company may be cremated by the Corporate Trustee and a certificate evidencing such cremation delivered to the Company. When and as interest is paid upon any unregistered temporary bond without coupons, the fact of such payment shall be noted thereon and interest due on any temporary bond which is represented by a coupon shall be paid only upon presentation and surrender of such coupon for cancellation. Temporary bonds without coupons of any series shall bear interest from the beginning of the current interest period for bonds of that series in which such temporary bonds without coupons shall be authenticated. The holder of one or more temporary bonds may exchange the same on the surrender thereof, for cancellation, in bearer form or, if registered, accompanied by a written instrument or instruments of transfer in form approved by the Company, duly executed by the registered holder or by his duly authorized attorney, with all unmatured coupons, if any, appertaining thereto, at the office or agency of the Company, and shall be entitled to receive a temporary bond or bonds of the same series of like aggregate principal amount of such other denominations as the Company may determine to issue in exchange.
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8. Section 21 in Article III
Section 21 in Article III of the Original Mortgage, as heretofore amended, is hereby amended as indicated in paragraph (a) below, with strikeouts showing deletions and underlining showing additions, paragraph (b) below containing only the new text of such provision as amended:
(a) SECTION 21. Nothing in this Indenture contained shall limit the power of the Board of Directors or Executive Committee of the Company to fix the price at which the bonds authenticated and delivered under any of the provisions of this Indenture may be issued, exchanged, sold or disposed of, but any or all of said bonds may be issued, exchanged, sold or disposed of upon such terms and for such considerations as the Board of Directors or Executive Committee of the Company, or, if and to the extent so authorized by Resolution, the President, any Vice President or the Treasurer of the Company, may deem fit.
(b) SECTION 21. Nothing in this Indenture contained shall limit the price at which the bonds authenticated and delivered under any of the provisions of this Indenture may be issued, exchanged, sold or disposed of, but any or all of said bonds may be issued, exchanged, sold or disposed of upon such terms and for such considerations as the Board of Directors or Executive Committee of the Company, or, if and to the extent so authorized by Resolution, the President, any Vice President or the Treasurer of the Company, may deem fit.
9. Section 28 in Article V
Clause (i) in the first paragraph of Section 28 of Article V of the Original Mortgage, as heretofore amended, is hereby amended as indicated in paragraph (a) below, with strikeouts showing deletions and underlining showing additions, paragraph (b) below containing only the new text of such provision as amended:
(a)(1) a Resolution requesting the Corporate Trustee to authenticate and deliver bonds, (a) specifying the principal amount of bonds called for, the series thereof and any other matters with respect thereto required by this Indenture, and (b) specifying the officer or officers of the Company to whom, or upon whose written order, such bonds shall be delivered; under the authority of which the bonds are to be issued;
(b)(1) a Resolution under the authority of which the bonds are to be issued;
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