Exhibit 4(a)-15
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SECURITIES GUARANTEE AGREEMENT
Washington Water Power Capital II
Dated as of ______, 199_
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THE WASHINGTON WATER POWER COMPANY
Reconciliation and Tie between Trust Indenture Act of 1939 and
Securities Guarantee, dated as of ________ 1, 199_*
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Securities
Trust Indenture Act Section Guarantee Section(s)
--------------------------- --------------------
Section 310(a)(1) . . . . . . . . . . . . . . 4.1(a)
(a)(2) . . . . . . . . . . . . . . . . . 4.1(a)
(a)(3) . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . 2.8, 4.1(c), 4.1(d)
(c) . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . 2.2(b)
(b) . . . . . . . . . . . . . . . . . 2.2(b)
(c) . . . . . . . . . . . . . . . . . Not Applicable
Section 312(a) . . . . . . . . . . . . . . . 2.2(a)
(b) . . . . . . . . . . . . . . . . . 2.2(b)
Section 313 . . . . . . . . . . . . . . . . . 2.3
Section 314(a) . . . . . . . . . . . . . . . 2.4
(b) . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . 2.5
(d) . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . 1.1 (Definition of
Officer's
Certificate
Section 315(a) . . . . . . . . . . . . . . . 3.1(c)
(b) . . . . . . . . . . . . . . . . . 2.7(a)
(c) . . . . . . . . . . . . . . . . . 3.1(d)
(d) . . . . . . . . . . . . . . . . . 3.1(e)
Section 316(a)(1) . . . . . . . . . . . . . . 2.6, 5.4(a)
(b) . . . . . . . . . . . . . . . . . 5.4(b)
(c) . . . . . . . . . . . . . . . . . Not Applicable
Section 317 . . . . . . . . . . . . . . . . . 3.1(f)
Section 318 . . . . . . . . . . . . . . . . . 2.1
_____________________________
* This Reconciliation and Tie does not constitute part of the
Securities Guarantee and shall not affect the interpretation
of any of its terms or provisions.
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . 5
SECTION 2.2 Lists of Holders of Securities . . . . . . 5
SECTION 2.3 Reports by the Guarantee Trustee . . . . . 5
SECTION 2.4 Periodic Reports to Guarantee Trustee . . . 5
SECTION 2.5 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . 6
SECTION 2.6 Events of Default; Waiver . . . . . . . . . 6
SECTION 2.7 Event of Default; Notice . . . . . . . . . 6
SECTION 2.8 Conflicting Interests . . . . . . . . . . . 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee
Trustee . . . . . . . . . . . . . . . . . . 7
SECTION 3.2 Certain Rights of Guarantee Trustee . . . . 8
SECTION 3.3 Not Responsible for Recitals or Issuance
of Guarantee Securities . . . . . . . . . 10
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility . . . . . 10
SECTION 4.2 Appointment, Removal and Resignation of
Guarantee Trustee . . . . . . . . . . . . 11
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . 12
SECTION 5.2 Waiver of Notice and Demand . . . . . . . 12
SECTION 5.3 Obligations Not Affected . . . . . . . . 12
SECTION 5.4 Rights of Holders . . . . . . . . . . . . 13
SECTION 5.5 Guarantee of Payment . . . . . . . . . . 13
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . 13
SECTION 5.7 Independent Obligations . . . . . . . . . 14
ARTICLE VI
SUBORDINATION
SECTION 6.1 Ranking . . . . . . . . . . . . . . . . . 14
SECTION 6.2 Effect of Subordination Provisions;
Termination . . . . . . . . . . . . . . . 14
ARTICLE VII
TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . 15
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation . . . . . . . . . . . . . . . 15
SECTION 8.2 Indemnification . . . . . . . . . . . . . 15
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Assignment . . . . . . . . . . . . . . . 16
SECTION 9.2 Successors and Assigns . . . . . . . . . 16
SECTION 9.3 Amendments . . . . . . . . . . . . . . . 16
SECTION 9.4 Notices . . . . . . . . . . . . . . . . . 16
SECTION 9.5 Benefit . . . . . . . . . . . . . . . . . 17
SECTION 9.6 Governing Law . . . . . . . . . . . . . . 17
SECTION 9.7 Counterparts . . . . . . . . . . . . . . 18
SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Securities Guarantee"),
dated as of ______, 199_, is executed and delivered by The
Washington Water Power Company, a Washington corporation (the
"Guarantor"), and Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity, but solely as trustee
(the "Guarantee Trustee"), for the benefit of the Holders (as
defined herein) from time to time of the Securities (as defined
herein) of Washington Water Power Capital II, a Delaware statutory
business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated
Declaration of Trust (the "Declaration"), dated as of ______,
199_, among the trustees of the Issuer named therein, the
Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing on the date hereof __________ securities,
having an aggregate liquidation amount of $___________,
designated the ____% _________ Securities, Series B (the
"Securities");
WHEREAS, as incentive for the Holders to purchase the
Securities, the Guarantor desires irrevocably and unconditionally
to agree, to the extent set forth in this Securities Guarantee,
to pay to the Holders of the Securities the Guarantee Payments
(as defined herein); and
WHEREAS, the Guarantor is also executing and delivering
a guarantee agreement (the "Common Securities Guarantee") in
substantially identical terms to this Securities Guarantee for
the benefit of the holders of the Common Securities (as defined
herein), except that if an Event of Default (as defined in the
Indenture), has occurred and is continuing, the rights of holders
of the Common Securities to receive Guarantee Payments (as
defined in the Common Securities Guarantee) under the Common
Securities Guarantee are subordinated to the rights of Holders of
Securities to receive Guarantee Payments under this Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by
each Holder of Securities, which purchase the Guarantor hereby
agrees shall benefit the Guarantor, the Guarantor executes and
delivers this Securities Guarantee for the benefit of the
Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
------------------------------
In this Securities Guarantee, unless the context
otherwise requires:
(a) Capitalized terms used in this Securities
Guarantee but not defined in the preamble above
have the respective meanings assigned to them in
this Section 1.1;
(b) terms defined in the Declaration as at the date of
execution of this Securities Guarantee have the
same meaning when used in this Securities
Guarantee unless otherwise defined in this
Securities Guarantee;
(c) a term defined anywhere in this Securities
Guarantee has the same meaning throughout;
(d) all references to "the Securities Guarantee" or
"this Securities Guarantee" are to this Securities
Guarantee as modified, supplemented or amended
from time to time;
(e) all references in this Securities Guarantee to
Articles and Sections are to Articles and Sections
of this Securities Guarantee, unless otherwise
specified;
(f) a term defined in the Trust Indenture Act has the
same meaning when used in this Securities
Guarantee, unless otherwise defined in this
Securities Guarantee or unless the context
otherwise requires; and
(g) a reference to the singular includes the plural
and vice versa.
"Affiliate" has the same meaning as given to that term in
---------
Rule 405 of the Securities Act of 1933, as amended, or any
successor rule thereunder.
"Business Day" means any day other than a day on which
------------
banking institutions in the City of New York, New York are
authorized or required by any applicable law to close.
"Common Securities" means the securities representing
-----------------
common undivided beneficial interests in the assets of the
Issuer.
"Corporate Trust Office" means the office of the
----------------------
Guarantee Trustee at which the corporate trust business of the
Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this
Agreement is located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
"Covered Person" means any Holder or beneficial owner of
--------------
Securities.
"Debentures" means the series of junior subordinated
----------
debt securities of the Guarantor designated the ____%
Junior Subordinated Deferrable Interest Debentures, Series B, due
20__ held by the Institutional Trustee of the Issuer.
"Event of Default" means a default by the Guarantor on
----------------
any of its payment or other obligations under this Securities
Guarantee.
"Guarantee Payments" means the following payments or
------------------
distributions, without duplication, with respect to the
Securities, to the extent not paid or made by the Issuer: (i) any
accrued and unpaid Distributions that are required to be paid on
such Securities to the extent the Issuer shall have funds
available therefor, (ii) the redemption price, including all
accrued and unpaid Distributions to the date of redemption (the
"Redemption Price") to the extent the Issuer shall have funds
available therefor, with respect to any Securities called for
redemption by the Issuer, and (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Issuer
(other than in connection with the distribution of Debentures to
the Holders in exchange for Securities as provided in the
Declaration), the lesser of (a) the aggregate of the liquidation
amount and all accrued and unpaid Distributions on the Securities
to the date of payment and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of
the Issuer (in either case, the "Liquidation Distribution").
"Holder" means any holder, as registered on the books
------
and records of the Issuer of any Securities; provided, however, that
in determining whether the holders of the requisite percentage of
Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any
Affiliate of the Guarantor.
"Indemnified Person" means the Guarantee Trustee, any
------------------
Affiliate of the Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Guarantee Trustee.
"Indenture" means the Indenture dated as of ______ 1,
---------
199_, between the Guarantor (the "Debenture Issuer") and
Wilmington Trust Company, as trustee, as supplemented, pursuant
to which certain subordinated debt securities of the Debenture
Issuer are to be issued to the Property Trustee of the Issuer.
"Majority in liquidation amount of the Securities"
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means, except as provided by the Trust Indenture Act, a vote
by Holder(s) of Securities, voting separately as a class, of more
than 50% of the liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all Securities.
"Officer's Certificate" means, with respect to any
---------------------
Person, a certificate signed by an Authorized Officer of such
Person. Any Officer's Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Securities Guarantee shall include:
(a) a statement that the officer signing the Officer's
Certificate has read the covenant or condition and the
definition relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by the officer in
rendering the Officer's Certificate;
(c) a statement that such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any
------
individual, corporation, estate, partnership, joint venture,
association, joint stock company, limited liability company,
trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"Guarantee Trustee" means Wilmington Trust Company, a
-----------------
Delaware banking corporation, until a Successor Guarantee Trustee
has been appointed and has accepted such appointment pursuant to
the terms of this Securities Guarantee and thereafter means each
such Successor Guarantee Trustee.
"Responsible Officer" means, with respect to the
-------------------
Guarantee Trustee, any officer within the Corporate Trust Office
of the Guarantee Trustee, including any vice president, any
assistant vice president, any assistant secretary, the treasurer,
any assistant treasurer or other officer of the Corporate Trust
Office of the Guarantee Trustee customarily performing functions
similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the
particular subject.
"Successor Guarantee Trustee" means a successor
---------------------------
Guarantee Trustee possessing the qualifications to act as Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of
-------------------
1939, as amended.
"Trust Securities" means the Common Securities and the
----------------
Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
--------------------------------
(a) This Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be
part of this Securities Guarantee and shall, to the extent
applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this
Securities Guarantee limits, qualifies or conflicts with the
duties imposed by Section 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
SECTION 2.2 Lists of Holders of Securities
------------------------------
(a) The Guarantor shall provide the Guarantee Trustee
with a list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders of the
Securities ("List of Holders") as of such date, (i) within 1
Business Day after January 1 and June 30 of each year, and (ii)
at any other time, within 30 days of receipt by the Guarantor of
a written request for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Guarantee
Trustee; provided, however, that the Guarantor shall not be
obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders
given to the Guarantee Trustee by the Guarantor. The Guarantee
Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of
the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee
--------------------------------
Within 60 days after May 15 of each year, the Guarantee
Trustee shall provide to the Holders of the Securities such
reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to Guarantee Trustee
-------------------------------------
The Guarantor shall provide to the Guarantee Trustee
such documents, reports and information as required by Section
314 (if any) and the compliance certificate required by Section
314 of the Trust Indenture Act in the form, in the manner and at
the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
------------------------------------------------
The Guarantor shall provide to the Guarantee Trustee
such evidence of compliance with any conditions precedent, if
any, provided for in this Securities Guarantee that relate to any
of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of
an Officer's Certificate.
SECTION 2.6 Events of Default; Waiver
-------------------------
The Holders of a Majority in liquidation amount of
Securities may, by vote, on behalf of the Holders of all of the
Securities, waive any past Event of Default and its consequences.
Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Securities Guarantee,
but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
------------------------
(a) The Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first
class postage prepaid, to the Holders of the Securities, notices
of all Events of Default actually known to a Responsible Officer
of the Guarantee Trustee, unless such defaults have been cured
before the giving of such notice; provided, however, that the
Guarantee Trustee shall be protected in withholding such notice
if and so long as a Responsible Officer of the Guarantee Trustee
in good faith determines that the withholding of such notice is
in the interests of the Holders of the Securities.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee
shall have received written notice, or a Responsible Officer of
the Guarantee Trustee charged with the administration of the
Declaration shall have obtained actual knowledge.
SECTION 2.8 Conflicting Interests
---------------------
The Declaration shall be deemed to be specifically
described in this Securities Guarantee for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee
------------------------------------------
(a) This Securities Guarantee shall be held by the
Guarantee Trustee for the benefit of the Holders of the
Securities, and the Guarantee Trustee shall not transfer this
Securities Guarantee to any Person except a Holder of Securities
exercising his or her rights pursuant to Section 5.4(b) or to a
Successor Guarantee Trustee on acceptance by such Successor
Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee
Trustee, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
(b) If an Event of Default actually known to a
Responsible Officer of the Guarantee Trustee has occurred and is
continuing, the Guarantee Trustee shall enforce this Securities
Guarantee for the benefit of the Holders of the Securities.
(c) Except during the continuance of an Event of
Default,
(i) the Guarantee Trustee undertakes to perform
only such duties as are specifically set forth in this
Securities Guarantee, and no implied covenants shall be read
into this Securities Guarantee against the Guarantee
Trustee; and
(ii) in the absence of bad faith on its part, the
Guarantee Trustee may, with respect to Securities of such
series, conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this
Securities Guarantee; but in the case of any such
certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Securities Guarantee.
(d) In case an Event of Default shall have occurred
and be continuing, the Guarantee Trustee shall exercise such of
the rights and powers vested in it by this Securities Guarantee,
and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(e) No provision of this Securities Guarantee shall be
construed to relieve the Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) this subsection shall not be construed to limit
the effect of subsection (c) of this Section;
(ii) the Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer of the Guarantee Trustee, unless it shall be proved
that the Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the
Holders of not less than a Majority in liquidation amount of
the Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Securities
Guarantee; and
(iv) no provision of this Securities Guarantee
shall require the Guarantee Trustee to expend or risk its
own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of
any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it
under the terms of this Securities Guarantee or indemnity,
reasonably satisfactory to the Guarantee Trustee, against
such risk or liability is not reasonably assured to it.
(f) The Guarantee Trustee shall be authorized to
undertake all actions set forth in Section 317(a) of the
Trust Indenture Act.
SECTION 3.2 Certain Rights of Guarantee Trustee
-----------------------------------
(a) Subject to the provisions of Section 3.1 and to
the applicable provisions of the Trust Indenture Act:
(i) The Guarantee Trustee may conclusively rely, and
shall be fully protected in acting or refraining from acting
upon, any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or
parties.
(ii) Any request, direction or act of the
Guarantor contemplated by this Securities Guarantee shall be
sufficiently evidenced by an Officer's Certificate, or as
otherwise expressly provided herein.
(iii) Whenever, in the administration of this
Securities Guarantee the Guarantee Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the
Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on
its part, request and conclusively rely upon an Officer's
Certificate.
(iv) The Guarantee Trustee may consult with
counsel of its selection, and the written advice or opinion
of such counsel with respect to legal matters shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon such advice or opinion; and
any such counsel may be counsel to the Guarantor or any of
its Affiliates and may include any of its employees.
(v) The Guarantee Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this
Securities Guarantee at the request or direction of any
Holder pursuant to this Securities Guarantee, unless such
Holder shall have offered to the Guarantee Trustee
reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in complying
with such request or direction.
(vi) The Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the
Guarantee Trustee shall determine to make any such further
inquiry or investigation, it shall (subject to applicable
legal requirements) be permitted to examine, during usual
business hours, the books, records and premises of the
Issuer or the Guarantor, personally or by agent or attorney.
(vii) The Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys and the
Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(viii) The Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any
rerecording, refiling or registration thereof.
(ix) Any action taken by the Guarantee Trustee or
its agents hereunder shall bind the Holders of the
Securities, and the signature of the Guarantee Trustee or
its agents alone shall be sufficient and effective to
perform any such action. No third party shall be required to
inquire as to the authority of the Guarantee Trustee to so
act or as to its compliance with any of the terms and
provisions of this Securities Guarantee, both of which shall
be conclusively evidenced by the Guarantee Trustee's or its
agent's taking such action.
(b) No provision of this Securities Guarantee shall be
deemed to impose any duty or obligation on the Guarantee Trustee
to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in
which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive or discretionary
power or authority available to the Guarantee Trustee shall be
construed to be a duty or obligation.
SECTION 3.3 Not Responsible for Recitals or Issuance of
-------------------------------------------
Guarantee Securities
--------------------
The recitals contained in this Securities Guarantee
shall be taken as the statements of the Guarantor, and the
Guarantee Trustee does not assume any responsibility for their
correctness. The Guarantee Trustee makes no representation as to
the validity or sufficiency of this Securities Guarantee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility
------------------------------
(a) There shall at all times be a Guarantee Trustee
which shall be:
(i) a corporation organized and doing business under
the laws of the United States, any State or Territory
thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined
capital and surplus of at least Fifty Million Dollars
($50,000,000) and subject to supervision or examination by
Federal, State, Territorial or District of Columbia
authority, or
(ii) if and to the extent permitted by the
Commission by rule, regulation or order upon application, a
corporation or other Person organized and doing business
under the laws of a foreign government, authorized under
such laws to exercise corporate trust powers, having a
combined capital and surplus of at least Fifty Million
Dollars ($50,000,000) or the Dollar equivalent of the
applicable foreign currency and subject to supervision or
examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to
supervision or examination applicable to United States
institutional trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Guarantee
Trustee shall immediately resign in the manner and with the
effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Guarantee Trustee and Guarantor (as
if it were the obligor referred to in Section 310(b) of the Trust
Indenture Act) shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
(d) The Guarantee Trustee shall be deemed to be
specifically described in this Securities Guarantee for purposes
of clause (i) of the first provision contained in Section 310(b)
of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Guarantee
-------------------------------------------------
Trustee
-------
(a) Subject to Section 4.2(b), the Guarantee Trustee
may be appointed or removed without cause at any time by the
Guarantor except during an Event of Default under the Indenture.
(b) The Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee
and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall
hold office until a Successor Guarantee Trustee shall have been
appointed or until his death, removal or resignation. The
Guarantee Trustee may resign from office (without need for prior
or subsequent accounting) by an instrument in writing signed by
the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section
4.2 within 60 days after delivery of an instrument of removal or
resignation, the Guarantee Trustee resigning or being removed, as
applicable, may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem
proper and prescribe, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts
or omissions to act of any Successor Guarantee Trustee.
(f) Upon termination of this Securities Guarantee or
removal or resignation of the Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Guarantee Trustee all
amounts accrued to the date of such termination, removal or
resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
---------
The Guarantor irrevocably and unconditionally agrees to
pay in full to the Holders the Guarantee Payments (without
duplication of amounts theretofore paid by the Issuer), as and
when due, regardless of any defense, right of set-off or
counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders
or by causing the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
---------------------------
The Guarantor hereby waives notice of acceptance of
this Securities Guarantee and of any liability to which it
applies or may apply, presentment, demand for payment, any right
to require a proceeding first against the Issuer or any other
Person before proceeding against the Guarantor, protest, notice
of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 Obligations Not Affected
------------------------
The obligations, covenants, agreements and duties of
the Guarantor under this Securities Guarantee shall in no way be
affected or impaired by reason of the happening from time to time
of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any
express or implied agreement, covenant, term or condition
relating to the Securities to be performed or observed by the
Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the Distributions, Redemption
Price, Liquidation Distribution or any other sums payable under
the terms of the Securities or the extension of time for the
performance of any other obligation under, arising out of, or in
connection with, the Securities (other than an extension of time
for payment of Distributions, Redemption Price, Liquidation
Distribution or other sum payable that results from the extension
of any interest payment period on the Debentures);
(c) any failure, omission, delay or lack of diligence
on the part of the Holders to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Holders
pursuant to the terms of the Securities, or any action on the
part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of
the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of
a guarantor, it being the intent of this Section 5.3 that the
obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give
notice to, or obtain consent of, the Guarantor with respect to
the happening of any of the foregoing.
SECTION 5.4 Rights of Holders
-----------------
(a) The Holders of a Majority in liquidation amount of
the Securities have the right to direct the time, method and
place of conducting of any proceeding for any remedy available to
the Guarantee Trustee in respect of this Securities Guarantee or
exercising any trust or power conferred upon the Guarantee
Trustee under this Securities Guarantee.
(b) If the Guarantee Trustee fails to enforce such
Securities Guarantee, any Holder of Securities may institute a
legal proceeding directly against the Guarantor to enforce the
Guarantee Trustee's rights under this Securities Guarantee,
without first instituting a legal proceeding against the Issuer,
the Guarantee Trustee or any other person or entity. The
Guarantor waives any right or remedy to require that any action
be brought first against the Issuer or any other person or entity
before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
--------------------
This Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 Subrogation
-----------
The Guarantor shall be subrogated to all (if any)
rights of the Holders of Securities against the Issuer in respect
of any amounts paid to such Holders by the Guarantor under this
Securities Guarantee; provided, however, that the Guarantor shall
not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may
acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this
Securities Guarantee, if, at the time of any such payment, any
amounts are due and unpaid under this Securities Guarantee. If
any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
-----------------------
The Guarantor acknowledges that its obligations
hereunder are independent of the obligations of the Issuer with
respect to the Securities, and that the Guarantor shall be liable
as principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Securities Guarantee
notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.1 Ranking
-------
This Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and
junior in right of payment to all other liabilities of the
Guarantor and (ii) pari passu with the Common Securities
Guarantee and any other guarantee now or hereafter entered into
by the Guarantor with respect to any preferred or capital securities
issued by any trust, partnership or other entity which is a
financing vehicle of the Guarantor, except that, where an Event of
Default (as defined in the Indenture) occurs and is continuing,
the rights of holders of the Common Securities to payment in respect
of Distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights to payment of Holders of
Securities.
SECTION 6.2 Effect of Subordination Provisions; Termination
-----------------------------------------------
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately succeeding
sentence, all the provisions of this Securities Guarantee shall
be subject to the provisions of this Article Six, so far as the
same may be applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of Section 6.1(i) shall be of no further
effect with respect to all or a portion of all other liabilities
of the Guarantor, and this Securities Guarantee shall no longer
be subordinated in right of payment to such other liabilities of
the Guarantor, to the extent that the Guarantor shall have
delivered to the Guarantee Trustee a notice to such effect
specifying therein such other liabilities to which this
Securities Guarantee shall no longer be subordinated and shall
have taken correlative action with respect to the Common
Securities Guarantee.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
-----------
This Securities Guarantee shall terminate upon (i) full
payment of the Redemption Price of all Securities, (ii) upon the
distribution of the Debentures to the Holders of all of the
Securities or (iii) upon full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer.
Notwithstanding the foregoing, this Securities Guarantee will
continue to be effective or will be reinstated, as the case may
be, if at any time any Holder of Securities must restore payment
of any sums paid under the Securities or under this Securities
Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
-----------
(a) No Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the Guarantor or any
Covered Person for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified
Person in good faith in accordance with this Securities Guarantee
and in a manner that such Indemnified Person reasonably believed
to be within the scope of the authority conferred on such
Indemnified Person by this Securities Guarantee or by law, except
that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Guarantor and upon
such information, opinions, reports or statements presented to
the Guarantor by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional
or expert competence and who has been selected with reasonable
care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
Distributions to Holders of Securities might properly be paid.
SECTION 8.2 Indemnification
---------------
The Guarantor agrees to indemnify each Indemnified
Person for, and to hold each Indemnified Person harmless against,
any and all loss, liability, damage, claim or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against,
or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligation to indemnify as set forth in this Section 8.2
shall survive the termination of this Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Assignment
----------
The Guarantor may assign its obligations under this
Securities Guarantee and thereupon be released and discharged
from all obligations hereunder upon compliance with the
conditions set forth in Section 1005(a)(i)-(iv) of the Indenture.
SECTION 9.2 Successors and Assigns
----------------------
All guarantees and agreements contained in this
Securities Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and
shall inure to the benefit of the Holders of the Securities then
outstanding.
SECTION 9.3 Amendments
----------
Except with respect to any changes that do not
adversely affect the rights of Holders (in which case no consent
of Holders will be required), this Securities Guarantee may only
be amended with the prior approval of the Holders of at least a
Majority in liquidation amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all the outstanding
Securities. The provisions of Section 12.2 of the Declaration
with respect to meetings of Holders of the Securities apply to
the giving of such approval.
SECTION 9.4 Notices
-------
All notices provided for in this Securities Guarantee
shall be in writing, duly signed by the party giving such notice,
and shall be delivered, telecopied or mailed by first class mail,
as follows:
(a) If given to the Guarantee Trustee, at the
Guarantee Trustee's mailing address set forth below (or such
other address as the Guarantee Trustee may give notice of to the
Holders of the Securities):
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
(b) If given to the Guarantor, at the Guarantor's
mailing address set forth below (or such other address as the
Guarantor may give notice of to the Holders of the Securities):
The Washington Water Power Company
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
(c) If given to any Holder of Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 9.5 Benefit
-------
This Securities Guarantee is solely for the benefit of
the Holders of the Securities and, subject to Section 3.1(a), is
not separately transferable from the Securities.
SECTION 9.6 Governing Law
-------------
THIS SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
SECTION 9.7 Counterparts
------------
This Securities Guarantee may contain more than one
counterpart of the signature page and this Securities Guarantee
may be executed by the affixing of the signature of each of the
parties hereto to one of such counterpart signature pages. All
of such counterpart signature pages shall be read as though one,
and they shall have the same force and effect as though all of
the signers had signed a single signature page.
THIS SECURITIES GUARANTEE is executed as of the day and
year first above written.
THE WASHINGTON WATER POWER
COMPANY, as Guarantor
By: ________________________________________
Name: _____________
Title: _____________
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Guarantee Trustee
By: ________________________________________
Name: _____________
Title: _____________
