Registration No. 33-__________
=======================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
PACIFICORP
(Exact name of Registrant as specified in its charter)
Oregon
(State or other jurisdiction of incorporation or organization)
4911 93-0246090
(Primary Standard Industrial (I.R.S. Employer Identification No.)
Classification Code Number)
700 NE Multnomah
Suite 1600
Portland, Oregon 97232-4116
(503) 731-2000
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
RICHARD T. O'BRIEN
Vice President
700 NE Multnomah
Suite 1600
Portland, Oregon 97232-4116
(503) 731-2000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
It is respectfully requested that the Commission send
copies of all notices, orders and communications to:
STOEL RIVES BOLEY WINTHROP, STIMSON, PUTNAM
JONES & GREY & ROBERTS
700 NE Multnomah, Suite 950 One Battery Park Plaza
Portland, Oregon 97232-4109 New York, New York 10004-1490
Attention of John M. Schweitzer Attention of C. Payson Coleman, Jr.
(503) 872-4821 (212) 858-1426
Approximate date of commencement of proposed sale of the
securities to the public: As soon as practicable after this
Registration Statement becomes effective.
<PAGE>
If the securities being registered on this Form are being offered
in connection with the formation of a holding company and there is
compliance with General Instruction G, check the following box. [ ]
__________________
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
- ----------------------------------------------------------------------------------
Proposed Proposed
Title of Principal maximum maximum
each class Amount offering aggregate Amount of
of securities to be price per offering registration
to be registered registered(1) $25 debenture(2) price(2) fee
- ----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Junior Subordinated $125,000,000 $25.1875 $125,937,500 $43,426.73
Deferrable Interest
Debentures
- ----------------------------------------------------------------------------------
<FN>
(1) To the extent holders of PacifiCorp's $1.98 No Par Serial
Preferred Stock elect not to participate in the Exchange Offer (as
defined herein), the number of Junior Subordinated Deferrable
Interest Debentures issued will be reduced.
(2) Estimated solely for purpose of calculating the registration fee
pursuant to Rule 457(f)(1) under the Securities Act of 1933 based
on the average of the high and low prices for PacifiCorp's $1.98
No Par Serial Preferred Stock on the New York Stock Exchange on
April 10, 1995.
</TABLE>
__________________
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states
that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until
this Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
=======================================================================
<PAGE>
PACIFICORP
Cross Reference Sheet
Pursuant to Item 501(b) of Regulation S-K
Location in
Form S-4 Item No. and Caption Prospectus
----------------------------- ----------
A. Information About the Transaction
1. Forepart of Registration Statement
and Outside Front Cover Page of
Prospectus ....................... Facing Page of
Registration Statement;
Cross Reference Sheet;
Cover Page of
Prospectus
2. Inside Front and Outside Back
Cover Pages of Prospectus ......... Available Information;
Incorporation of
Certain Documents by
Reference; Table of
Contents
3. Risk Factors, Ratio of Earnings
to Fixed Charges and Other
Information ....................... The Company; Prospectus
Summary; Special
Considerations Relating
to the Exchange Offer
and the Debentures;
Selected Financial
Information
4. Terms of the Transaction ......... Prospectus Summary; The
Exchange Offer; Certain
Federal Income Tax
Considerations; Certain
Federal Tax
Considerations for Non-
United States Persons;
Description of
Debentures; Description
of Capital Stock
5. Pro Forma Financial Information ..... Not Applicable
<PAGE>
6. Material Contacts with the
Company Being Acquired ............ Not Applicable
7. Additional Information Required
for Reoffering by Persons and
Parties Deemed to be
Underwriters ...................... Not Applicable
8. Interests of Named Experts and
Counsel ............................ Legal Opinions
9. Disclosure of Commission
Position on Indemnification
for Securities Act Liabilities .... Not Applicable
B. Information About the Registrant
10. Information with Respect to S-3
Registrants ....................... Incorporation of
Certain Documents by
Reference; The Company
11. Incorporation of Certain
Information by Reference .......... Incorporation of
Certain Documents by
Reference
12. Information with Respect to S-2
or S-3 Registrants ................ Not Applicable
13. Incorporation of Certain
Information by Reference .......... Not Applicable
14. Information with Respect to
Registrants Other Than S-3
or S-2 Registrants ................ Not Applicable
C. Information About the
Company Being Acquired
15. Information with Respect to
S-3 Companies ..................... Not Applicable
16. Information with Respect to S-2
or S-3 Companies .................. Not Applicable
17. Information with Respect to
Companies Other Than S-2 or
S-3 Companies .................... Not Applicable
<PAGE>
D. Voting and Management Information
18. Information if Proxies, Consents
or Authorizations are to be
Solicited ......................... Not Applicable
19. Information if Proxies, Consents
or Authorizations are not to
be Solicited or in an Exchange
Offer ............................. Incorporation of
Certain Documents by
Reference; The Exchange
Offer
<PAGE>
FORM OF LEGEND
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with
the Securities and Exchange Commission. These securities may not be
sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy nor
shall there be any sale of these securities in any jurisdiction in
which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such
jurisdiction.
<PAGE>
Subject to Completion, Dated April 12, 1995
PACIFICORP
Offer to Exchange
_____% Quarterly Income Debt Securities (QUIDSSM)
(Junior Subordinated Deferrable Interest
Debentures, Series A, due 2025)
for
$1.98 No Par Serial Preferred Stock, Series 1992
________________________________________
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON MAY __, 1995, UNLESS EXTENDED.
________________________________________
PacifiCorp, an Oregon corporation (the "Company"),
hereby offers, upon the terms and subject to the conditions set
forth in this Prospectus and the accompanying Letter of
Transmittal (the "Letter of Transmittal," which, together with
this Prospectus, constitute the "Exchange Offer"), to exchange up
to $125,000,000 aggregate principal amount of debentures
designated as its _____% Junior Subordinated Deferrable Interest
Debentures, Series A, due 2025 (the "Debentures") for up to all
of the outstanding shares of the $1.98 No Par Serial Preferred
Stock, Series 1992, of the Company (the "Series 1992 Preferred
Stock"). The Debentures are offered in minimum denominations of
$25 and integral multiples thereof, and the Series 1992 Preferred
Stock has a liquidation preference of $25 per share.
Consequently, the Exchange Offer will be effected on the basis of
$25 principal amount of Debentures for each share of Series 1992
Preferred Stock validly tendered and accepted for exchange in the
Exchange Offer. The dividend on the Series 1992 Preferred Stock
payable on May 15, 1995 for the period February 6, 1995 through
May 5, 1995 will be payable to shareholders of record on
April 21, 1995 regardless of when shares of the Series 1992
Preferred Stock are tendered pursuant to the Exchange Offer.
Dividends accumulated after May 5, 1995 will not be paid on the
Series 1992 Preferred Stock accepted for exchange in the Exchange
Offer. In lieu thereof, holders of Debentures will be entitled
to interest from and including May 6, 1995, as described below.
Holders of Series 1992 Preferred Stock may participate
in the Exchange Offer by properly completing and signing the
Letter of Transmittal and tendering their shares of Series 1992
Preferred Stock as described in "The Exchange Offer--Procedures
for Tendering" in accordance with the instructions contained
herein and in the Letter of Transmittal prior to the Expiration
Date (as defined herein).
<PAGE>
The Company will accept for exchange Series 1992
Preferred Stock validly tendered and not withdrawn prior to
5:00 p.m., New York City time, on May __, 1995, or if extended by
the Company, in its sole discretion, the latest date and time to
which extended (the "Expiration Date"). The Exchange Offer will
expire on the Expiration Date. Tenders of Series 1992 Preferred
Stock may be withdrawn at any time prior to the Expiration Date
and, unless accepted for exchange by the Company, may be
withdrawn at any time after 40 business days after the date of
this Prospectus. The Company expressly reserves the right to
(i) extend, amend or modify the terms of the Exchange Offer in
any manner and (ii) withdraw or terminate the Exchange Offer and
not accept for exchange any Series 1992 Preferred Stock, at any
time for any reason, including (without limitation) if fewer than
1,000,000 shares of Series 1992 Preferred Stock are tendered
(which condition may be waived by the Company). For a
description of the other terms of the Exchange Offer, see "The
Exchange Offer--Withdrawal of Tenders" and "--Expiration Date;
Extensions; Amendments; Termination."
(Continued on next page)
See "Special Considerations Relating to the Exchange
Offer and the Debentures" for a discussion of certain factors
that should be considered in connection with the Exchange Offer
and an investment in the Debentures, including in the case of the
Debentures the period and circumstances during and under which
payment of interest may be deferred and certain related federal
income tax consequences.
_____________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR BY ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
____________________________________
SMQUIDS is a service mark of Goldman, Sachs & Co.
____________________________________
____________________________________
The Dealer Managers for the Exchange Offer are:
Goldman, Sachs & Co. Salomon Brothers Inc
____________________________________
The date of this Prospectus is April __, 1995.<PAGE>
The Debentures will mature on May __, 2025 and will
bear interest at an annual rate of _____% from and including the
first day following the Expiration Date (the "Issue Date").
Interest will be payable quarterly in arrears on February 15,
May 15, August 15, and November 15 of each year (which are the
same dates on which dividends on the Series 1992 Preferred Stock
are payable, when, as and if declared), commencing August 15,
1995, provided that, so long as the Company shall not be in
default in the payment of interest on the Debentures, the Company
shall have the right, upon prior notice by public announcement
given in accordance with New York Stock Exchange (the "NYSE")
rules at any time during the term of the Debentures, to extend
the interest payment period at any time and from time to time for
a period not exceeding 20 consecutive calendar quarters (each
such extended period, an "Extension Period"). No interest shall
be due and payable during an Extension Period, but at the end of
each Extension Period the Company shall pay to the holders all
interest then accrued and unpaid on the Debentures, together,
with interest thereon, compounded quarterly at the rate of
interest on the Debentures. Upon the termination of any
Extension Period and the payment of all interest then due, the
Company may commence a new Extension Period. After prior notice
by public announcement given in accordance with the NYSE rules,
the Company also may prepay at any time all or any portion of the
interest accrued during an Extension Period. Consequently, there
could be multiple Extension Periods of varying lengths throughout
the term of the Debentures. In the event that the Company
exercises such right to extend, the Company may not declare or
pay dividends on, or redeem, purchase or acquire, any shares of
its capital stock, including the Series 1992 Preferred Stock,
until deferred interest on the Debentures is paid in full,
subject to certain exceptions described herein. Therefore, the
Company believes that the extension of an interest payment period
on the Debentures is unlikely. However, should the Company
determine to exercise such right in the future, the market price
of the Debentures is likely to be adversely affected. See
"Special Considerations Relating to the Exchange Offer and the
Debentures" and Description of Debentures--Interest" and
"--Option to Extend Interest Payment Period."
In addition, registered holders of the Debentures on
August 1, 1995 will be entitled to interest at a rate of 7.92%
per annum from and including May 6, 1995 to and including the
Expiration Date in lieu of dividends accumulating after May 5,
1995 on their Series 1992 Preferred Stock accepted for exchange,
payable on August 15, 1995, which is the date of the first
interest payment on the Debentures ("Pre-Issuance Accrued
Interest"). No extension of an interest payment period will be
permitted with respect to Pre-Issuance Accrued Interest.
<PAGE>
The Debentures are redeemable at the option of the
Company at any time after May 31, 1997 (which is the same date
after which the Series 1992 Preferred Stock is redeemable at the
option of the Company), in whole or in part, at a redemption
price of 100% of the principal amount of the Debentures redeemed,
plus accrued and unpaid interest to the date fixed for
redemption. The Debentures will not be subject to mandatory
redemption, and no sinking fund will be established for the
payment of the Debentures. See "Description of Debentures--
Optional Redemption." The Debentures are unsecured obligations
of the Company and will be subordinate to all existing and future
Senior Indebtedness (as defined herein) of the Company, but
senior to preferred stock of the Company, including the Series
1992 Preferred Stock, and to the Common Stock of the Company. On
December 31, 1994, approximately $3.7 billion of such Senior
Indebtedness was outstanding. As the Debentures will be issued
by the Company, the Debentures effectively will be subordinate to
all obligations of the Company's subsidiaries. See "Description
of Debentures--Subordination."
For United States federal income tax purposes, the
exchange of Series 1992 Preferred Stock for Debentures will,
depending upon each exchanging holder's particular facts and
circumstances, be treated as either an exchange in which gain or
loss is recognized or as a distribution taxable as a dividend,
and the Debentures will be treated as having been issued with
original issue discount. For a discussion of these and other
United States federal income tax considerations relevant to the
Exchange Offer, see "Certain Federal Income Tax Considerations"
and "Certain Federal Tax Considerations for Non-United States
Persons."
The Series 1992 Preferred Stock is listed and
principally traded on the NYSE. On April __, 1995, the last full
day of trading prior to the first public announcement of the
Exchange Offer, the closing sales price of the Series 1992
Preferred Stock on the NYSE as reported on the Composite Tape was
$_______ per share. Holders of Series 1992 Preferred Stock are
urged to obtain current market quotations therefor.
Application has been made to list the Debentures on the
NYSE. To the extent that Series 1992 Preferred Stock is tendered
and accepted in the Exchange Offer, a holder's ability to sell
Series 1992 Preferred Stock not tendered for exchange could be
adversely affected. The Company does not believe that the
Exchange Offer has a reasonable likelihood of causing the Series
1992 Preferred Stock to be delisted from the NYSE.
No person has been authorized to give any information
or to make any representations in connection with the Exchange <PAGE>
Offer other than those contained in this Prospectus. If given or
made, such information or representations should not be relied
upon as having been authorized by the Company. Neither the
delivery of this Prospectus nor any exchange made hereunder
shall, under any circumstances, create any implication that there
has been no change in the affairs of the Company since the
respective dates as of which information is given herein. The
Exchange Offer is not being made to (nor will tenders be accepted
from or on behalf of) Holders (as defined below) of Series 1992
Preferred Stock in any jurisdiction in which the making of the
Exchange Offer or the acceptance thereof would not be in
compliance with the laws of such jurisdiction. However, the
Company may, at its discretion, take such action as it may deem
necessary to make the Exchange Offer in any such jurisdiction and
extend the Exchange Offer to Holders of Series 1992 Preferred
Stock in such jurisdiction. In any jurisdiction the securities
laws or blue sky laws of which require the Exchange Offer to be
made by a licensed broker or dealer, the Exchange Offer is being
made on behalf of the Company by the Dealer Managers (as defined
below) or one or more registered brokers or dealers which are
licensed under the laws of such jurisdiction.
AVAILABLE INFORMATION
The Company is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and in accordance therewith files reports
and other information with the Securities and Exchange Commission
(the "Commission"). Such reports and other information
(including proxy and information statements) filed by the Company
can be inspected and copied at public reference facilities
maintained by the Commission at 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549, and at the following Regional
Offices of the Commission: New York Regional Office, 7 World
Trade Center, 13th Floor, New York, New York 10048, and Chicago
Regional Office, 500 W. Madison Street, 14th Floor, Chicago,
Illinois 60661. Copies of such material can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549, upon payment of the prescribed
rates. The Common Stock of the Company is listed on the NYSE and
the Pacific Stock Exchange. Reports, proxy statements and other
information concerning the Company can be inspected at their
respective offices: New York Stock Exchange, 20 Broad Street,
New York, New York 10005, and Pacific Stock Exchange, 301 Pine
Street, San Francisco, California 94104.
This Prospectus constitutes a part of a registration
statement on Form S-4 (together with all amendments and exhibits
thereto, the "Registration Statement") filed by the Company with
the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all of the <PAGE>
information included in the Registration Statement, certain parts
of which are omitted in accordance with the rules and regulations
of the Commission. Statements contained herein concerning the
provisions of any document do not purport to be complete and, in
each instance, are qualified in all respects by reference to the
copy of such document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission. Each such
statement is subject to and qualified in its entirety by such
reference. Reference is made to the Registration Statement,
including the exhibits thereto, for further information with
respect to the Company and the securities offered hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Commission pursuant to the Exchange Act are incorporated in this
Prospectus by reference:
(1) Annual Report on Form 10-K for the year ended
December 31, 1994; and
(2) Current Reports on Form 8-K dated March 9 and April 11,
1995.
All documents filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date of this Prospectus and prior to the date on which the
Exchange Offer is consummated shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the
date of filing of such documents (such documents, and the
documents enumerated above, being hereinafter referred to as
"Incorporated Documents."
Any statement contained in an Incorporated Document
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in
any other subsequently filed Incorporated Document modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Incorporated Documents are not presented in this
Prospectus or delivered herewith. The Company hereby undertakes
to provide without charge to each person, including any
beneficial owner of Series 1992 Preferred Stock, to whom a copy
of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the
Incorporated Documents, other than exhibits to such documents,
unless such exhibits are specifically incorporated by reference
therein. Requests should be directed to Richard T. O'Brien, Vice
President, PacifiCorp, 700 NE Multnomah, Suite 1600, Portland, <PAGE>
Oregon 97232, telephone number (503) 731-2000. In order to
ensure timely delivery of the Incorporated Documents, any request
should be made not later than five business days prior to the
Expiration Date. The information relating to the Company
contained in this Prospectus does not purport to be comprehensive
and should be read together with the information contained in the
Incorporated Documents.
TABLE OF CONTENTS
Page
Available Information. . . . . . . . . . . . . . . . . . . 3
Incorporation of Certain Documents by Reference. . . . . . 4
Prospectus Summary . . . . . . . . . . . . . . . . . . . . 6
Special Considerations Relating to the Exchange
Offer and the Debentures. . . . . . . . . . . . . . . . 17
The Company. . . . . . . . . . . . . . . . . . . . . . . . 22
Selected Financial Information . . . . . . . . . . . . . . 23
The Exchange Offer . . . . . . . . . . . . . . . . . . . . 25
Price Range of Series 1992 Preferred Stock . . . . . . . . 38
Description of Debentures. . . . . . . . . . . . . . . . . 38
Description of Capital Stock . . . . . . . . . . . . . . . 49
Certain Federal Income Tax Considerations. . . . . . . . . 53
Certain Federal Tax Considerations for
Non-United States Persons . . . . . . . . . . . . . . . 59
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . 63
Legal Opinions . . . . . . . . . . . . . . . . . . . . . . 63
<PAGE>
PROSPECTUS SUMMARY
The following summary does not purport to be complete
and is qualified in its entirety by the detailed information
contained elsewhere in this Prospectus or by documents
incorporated by reference into this Prospectus.
The Company
PacifiCorp (the "Company") is an electric utility that
conducts a retail electric utility business through Pacific
Power & Light Company and Utah Power & Light Company, and engages
in power production and sales on a wholesale basis under the name
PacifiCorp. The Company is the indirect owner, through
PacifiCorp Holdings, Inc. (a wholly-owned subsidiary), of 86.6%
of Pacific Telecom, Inc. and 100% of each of Pacific Generation
Company and PacifiCorp Financial Services, Inc. The principal
executive offices of the Company are located at 700 NE Multnomah,
Suite 1600, Portland, Oregon 97232; the telephone number is (503)
731-2000. See "The Company."
Certain Investor Considerations
Prospective investors should carefully review the
information contained elsewhere in this Prospectus prior to
making a decision regarding the Exchange Offer and should
particularly consider the following matters:
Potential Benefits to Exchanging Holders
- -- The annual interest rate on the Debentures (as defined
below) will be .___% (___ basis points) higher than the
indicated annual dividend rate on the Series 1992 Preferred
Stock (as defined below). See "--Comparison of Debentures
and Series 1992 Preferred Stock"below.
- -- The Debentures will rank senior to the Series 1992 Preferred
Stock as to payment in respect thereof and as to the
distribution of assets upon liquidation. See "Special
Considerations Relating to the Exchange Offer and the
Debentures--Subordination of Debentures."
- -- In order to benefit from the higher annual interest rate on
the Debentures (as compared to the indicated annual dividend
rate on the Series 1992 Preferred Stock), holders of Series
1992 Preferred Stock need not pay any additional cash.
Holders of Series 1992 Preferred Stock may participate in
the Exchange Offer (as defined below) by properly completing
and signing the Letter of Transmittal (as defined below) and
<PAGE>
tendering their shares of Series 1992 Preferred Stock as
described in "The Exchange Offer--Procedures for Tendering"
in accordance with the instructions contained herein and in
the Letter of Transmittal prior to the Expiration Date (as
defined below).
Potential Risks to Exchanging Holders
- -- Participation in the Exchange Offer will be a taxable event.
See "Special Considerations Relating to the Exchange Offer
and the Debentures--Exchange as Taxable Event."
- -- The interest payment period on the Debentures may be
extended under certain circumstances by the Company in its
sole discretion for up to 20 consecutive quarters during
which no interest would be payable thereon. In the event an
extension occurs, holders of the Debentures would continue
to accrue income on the Debentures for United States federal
income tax purposes. See "Special Considerations Relating
to the Exchange Offer and the Debentures--Right of Company
to Defer Payment of Interest," "--Potential Market
Volatility During Extension Period" and "--No Cash Payments
During Extension Period to Pay Accrued Tax Liability."
- -- The Debentures constitute a new series of securities with no
established trading market. While application has been made
to list the Debentures on the New York Stock Exchange (the
"NYSE"), no assurance can be given as to the liquidity of,
or trading markets for, the Debentures or whether the sales
price of the Debentures on the NYSE at the time of issuance
thereof (or at any time thereafter) will be greater than or
less than either the stated principal amount thereof or the
closing sales price of the Series 1992 Preferred Stock on
the NYSE on the Expiration Date. See "Special
Considerations Relating to the Exchange Offer and the
Debentures--Listing and Trading of Debentures and Series
1992 Preferred Stock."
- -- While dividends on the Series 1992 Preferred Stock are
eligible for the dividends received deduction for corporate
holders, interest on the Debentures will not be eligible for
the dividends received deduction for corporate holders. See
"--Comparison of Debentures and Series 1992 Preferred Stock"
below.
<PAGE>
The Exchange Offer
Purpose of the Exchange Offer
The principal purpose of the Exchange Offer is to
improve the Company's after-tax cash flow by replacing the Series
1992 Preferred Stock with the Debentures. The potential cash
flow benefit to the Company arises because interest payable on
the Debentures will be deductible by the Company (as it accrues)
for United States federal income tax purposes, while dividends
payable on the Series 1992 Preferred Stock are not deductible.
See "The Exchange Offer--Purpose of the Exchange Offer."
Terms of the Exchange Offer
Upon the terms and subject to the conditions set forth
herein and in the accompanying Letter of Transmittal (the "Letter
of Transmittal," which together with this Prospectus, constitute
the "Exchange Offer"), the Company hereby offers to exchange up
to $125,000,000 aggregate principal amount of debentures
designated as its _____% Junior Subordinated Deferrable Interest
Debentures, Series A, due 2025 (the "Debentures") for up to all
of the outstanding shares of the $1.98 No Par Serial Preferred
Stock, Series 1992, of the Company (the "Series 1992 Preferred
Stock"). Exchanges will be effected on the basis of $25
principal amount of Debentures (the minimum permitted
denomination) for each share of Series 1992 Preferred Stock
(which has a liquidation preference of $25 per share) validly
tendered and accepted for exchange in the Exchange Offer. See
"The Exchange Offer--Terms of the Exchange Offer." Shares of
Series 1992 Preferred Stock exchanged pursuant to the Exchange
Offer will revert to the status of authorized but unissued shares
of the Company's No Par Serial Preferred Stock.
Securities Offered
The Debentures will mature on May __, 2025 and will
bear interest at an annual rate of _____% from and including the
first day following the Expiration Date (the "Issue Date").
Interest will be payable quarterly in arrears on February 15,
May 15, August 15 and November 15 of each year (which are the
same dates on which dividends on the Series 1992 Preferred Stock
are payable, as, when and if declared), commencing August 15,
1995, provided that, so long as the Company shall not be in
default in the payment of interest on the Debentures, the Company
shall have the right, upon prior notice by public announcement
given in accordance with NYSE rules at any time during the term
of the Debentures, to extend the interest payment period at any <PAGE>
time and from time to time for a period not exceeding 20
consecutive calendar quarters (each such extended period, an
"Extension Period"). In the event that the Company exercises
such right to extend, the Company may not declare or pay
dividends on, or redeem, purchase or acquire, any shares of its
capital stock (including the Series 1992 Preferred Stock) until
deferred interest on the Debentures is paid in full, subject to
certain exceptions as described herein. Therefore, the Company
believes that the extension of an interest payment period on the
Debentures is unlikely. However, should the Company determine to
extend such right in the future, the market price of the
Debentures is likely to be adversely affected. See "Special
Considerations Relating to the Exchange Offer and the Debentures"
and "Description of Debentures--Interest" and "--Option to Extend
Interest Payment Period."
The Debentures are redeemable at the option of the
Company at any time after May 31, 1997 (which is the same date
after which the Series 1992 Preferred Stock is redeemable at the
option of the Company), in whole or in part, at a redemption
price of 100% of the principal amount of the Debentures redeemed,
plus accrued and unpaid interest to the date fixed for
redemption. The Debentures will not be subject to mandatory
redemption, and no sinking fund will be established for the
payment of the Debentures. See "Description of Debentures--
Optional Redemption."
The dividend on the Series 1992 Preferred Stock payable
on May 15, 1995 for the period February 6, 1995 through May 5,
1995 will be payable to shareholders of record on April 21, 1995,
regardless of when shares of the Series 1992 Preferred Stock are
tendered pursuant to the Exchange Offer. Dividends accumulated
after May 5, 1995 will not be paid on Series 1992 Preferred Stock
accepted for exchange in the Exchange Offer. In lieu thereof,
registered holders of the Debentures on August 1, 1995 will be
entitled to interest at a rate of 7.92% per annum from and
including May 6, 1995 to and including the Expiration Date,
payable on August 15, 1995, which is the date of the first
interest payment on the Debentures ("Pre-Issuance Accrued
Interest"). No extension of an interest payment period will be
permitted with respect to Pre-Issuance Accrued Interest. The
Debentures will be issued pursuant to an indenture to be dated as
of May 1, 1995 between the Company and The Bank of New York, as
trustee (the "Indenture"). See "Description of Debentures."
Expiration Date; Withdrawals
The Company will accept for exchange Series 1992
Preferred Stock, validly tendered and not withdrawn prior to <PAGE>
5:00 p.m., New York City time, on May __, 1995, or if extended by
the Company, in its sole discretion, the latest date and time to
which extended (the "Expiration Date"). The Exchange Offer will
expire on the Expiration Date. Tenders of Series 1992 Preferred
Stock pursuant to the Exchange Offer may be withdrawn at any time
prior to the Expiration Date and, unless accepted for exchange by
the Company, may be withdrawn at any time after 40 business days
after the date of this Prospectus. See "The Exchange Offer--
Withdrawal of Tenders" and "--Expiration Date; Extensions;
Amendments; Termination."
Extensions, Amendments and Termination
The Company expressly reserves the right to (i) extend,
amend or modify the terms of the Exchange Offer in any manner and
(ii) withdraw or terminate the Exchange Offer and not accept for
exchange any Series 1992 Preferred Stock, at any time for any
reason, including (without limitation) if fewer than 1,000,000
shares of Series 1992 Preferred Stock are tendered (which
condition may be waived by the Company). See "The Exchange
Offer--Expiration Date; Extensions; Amendments; Termination."
Procedures for Tendering
Each Holder (as defined below) of the Series 1992
Preferred Stock wishing to accept the Exchange Offer must
(i) unless an Agent's Message (as defined herein) is utilized in
connection with a book-entry transfer, properly complete and sign
the Letter of Transmittal or a facsimile thereof (all references
in this Prospectus to the Letter of Transmittal shall be deemed
to include a facsimile thereof) in accordance with the
instructions contained herein and therein, together with any
required signature guarantees, and deliver the same to The Bank
of New York, as Exchange Agent (the "Exchange Agent"), at either
of its addresses set forth in "The Exchange Offer--Exchange Agent
and Information Agent" and either (a) certificates for the Series
1992 Preferred Stock must be received by the Exchange Agent at
such address or (b) such Series 1992 Preferred Stock must be
transferred pursuant to the procedures for book-entry transfer
described herein and a confirmation of such book-entry transfer
must be received by the Exchange Agent, in each case prior to the
Expiration Date, or (ii) comply with the guaranteed delivery
procedures described herein. See "The Exchange Offer--General"
and "--Procedures for Tendering."
In order to participate in the Exchange Offer, Holders
of Series 1992 Preferred Stock must submit a Letter of
Transmittal and comply with the other procedures for tendering <PAGE>
in accordance with the instructions contained herein and in the
Letter of Transmittal prior to the Expiration Date.
LETTERS OF TRANSMITTAL, SERIES 1992 PREFERRED STOCK AND
ANY OTHER REQUIRED DOCUMENTS SHOULD BE SENT ONLY TO THE EXCHANGE
AGENT, AND NOT TO THE COMPANY, THE DEALER MANAGERS OR THE
INFORMATION AGENT REFERRED TO HEREIN.
Special Procedure for Beneficial Owners
Any beneficial owner whose Series 1992 Preferred Stock
is registered in the name of a broker, dealer, commercial bank,
trust company or other nominee and who wishes to tender should
contact such registered holder promptly and instruct such
registered holder to tender on such beneficial owner's behalf.
If such beneficial owner wishes to tender on its own behalf, such
owner must, prior to completing and executing a Letter of
Transmittal and delivering its Series 1992 Preferred Stock,
either make appropriate arrangements to register ownership of the
Series 1992 Preferred Stock in such owner's name or obtain a
properly completed stock power from the registered holder. The
transfer of registered ownership may take considerable time and
may not be able to be completed prior to the Expiration Date.
See "The Exchange Offer--Procedures for Tendering--Signature
Guarantees."
Guaranteed Delivery Procedures
If a Holder desires to accept the Exchange Offer and
time will not permit a Letter of Transmittal or Series 1992
Preferred Stock to reach the Exchange Agent before the Expiration
Date or the procedure for book-entry transfer cannot be completed
on a timely basis, a tender may be effected in accordance with
the guaranteed delivery procedures set forth in "The Exchange
Offer--Procedures for Tendering--Guaranteed Delivery."
Acceptance of Shares and Delivery of Debentures
Upon the terms and subject to the conditions of the
Exchange Offer, including the reservation by the Company of the
right to withdraw, amend or terminate the Exchange Offer and
certain other rights, the Company will accept for exchange all
shares of Series 1992 Preferred Stock that are properly tendered
in the Exchange Offer and not withdrawn prior to the Expiration
Date. Subject to such terms and conditions, the Debentures
issued pursuant to the Exchange Offer will be issued as of the
Issue Date and will be delivered as promptly as practicable
thereafter. See "The Exchange Offer--Terms of the Exchange <PAGE>
Offer" and "--Expiration Date; Extensions; Amendments;
Termination."
Certain Federal Income Tax Considerations
The exchange of Series 1992 Preferred Stock for
Debentures pursuant to the Exchange Offer will be a taxable event
for exchanging shareholders. Depending on each exchanging
shareholder's particular facts and circumstances, the exchange
will be treated as (i) a transaction in which gain or loss will
be recognized in an amount equal to the difference between the
fair market value of the Debentures received in the exchange and
the exchanging shareholder's tax basis in the shares of Series
1992 Preferred Stock surrendered or (ii) a distribution taxable
as a dividend in an amount equal to the fair market value of the
Debentures received by such exchanging shareholder. In the case
of a shareholder who directly or constructively owns solely
Series 1992 Preferred Stock, or not more than one percent of the
Series 1992 Preferred Stock outstanding and not more than one
percent of all other classes of outstanding stock of the Company,
an exchange of all or a part of such shareholder's Series 1992
Preferred Stock for Debentures pursuant to the Exchange Offer
should ordinarily be treated as a exchange described in clause
(i) of the previous sentence. See "Certain Federal Income Tax
Considerations" and "Certain Federal Tax Considerations for Non-
United States Persons."
The Debentures will be treated as issued with "original
issue discount" for United States federal income tax purposes.
Holders of Debentures will be required to include such original
issue discount in gross income as it accrues on the Debentures in
advance of the receipt of cash. In the event an Extension Period
occurs, this may cause holders of Debentures to recognize
ordinary income from the Debentures without a corresponding
receipt of cash in the same tax year. See "Special
Considerations Relating to the Exchange Offer and the
Debentures--Differences In Timing and Amount Between Interest
Payments and Taxable Income" and "Certain Federal Income Tax
Considerations--Interest and Original Issue Discount on
Debentures."
No portion of the amounts received with respect to the
Debentures will be eligible for the dividends received deduction.
Untendered Shares
Holders of Series 1992 Preferred Stock who do not
tender all their Series 1992 Preferred Stock in the Exchange
Offer or whose Series 1992 Preferred Stock is not accepted for <PAGE>
exchange will continue to hold such Preferred Stock and will be
entitled to all the rights and preferences, and will be subject
to all of the limitations, applicable thereto. To the extent
Series 1992 Preferred Stock is tendered and accepted in the
Exchange Offer, the terms on which untendered Series 1992
Preferred Stock could subsequently be sold could be adversely
affected. See "Special Considerations Relating to the Exchange
Offer and the Debentures--Listing and Trading of Debentures and
Series 1992 Preferred Stock." The Company does not believe that
the Exchange Offer has a reasonable likelihood of causing the
Series 1992 Preferred Stock to be delisted from the NYSE. See
"The Exchange Offer--Listing and Trading of Debentures and Series
1992 Preferred Stock; Transfer Restrictions."
Exchange Agent and Information Agent
The Bank of New York has been appointed as Exchange
Agent in connection with the Exchange Offer. Questions and
requests for assistance, requests for additional copies of this
Prospectus or of the Letter of Transmittal and requests for
Notices of Guaranteed Delivery should be directed to Georgeson &
Company Inc., which has been retained by the Company to act as
Information Agent for the Exchange Offer (the "Information
Agent"). The addresses and telephone numbers of the Exchange
Agent and the Information Agent are set forth in "The Exchange
Offer--Exchange Agent and Information Agent."
Dealer Managers
Goldman, Sachs & Co. and Salomon Brothers Inc have been
retained as Dealer Manager to solicit exchanges of Series 1992
Preferred Stock for Debentures (collectively, the "Dealer
Managers"). Questions with respect to the Exchange Offer may be
directed to Goldman, Sachs & Co. at (800) 828-3182.
Fees and Expenses; Transfer Taxes
The expenses of soliciting tenders of the Series 1992
Preferred Stock will be borne by the Company. The Company will
pay a solicitation fee of $.50 per share for any Series 1992
Preferred Stock tendered and accepted for exchange pursuant to
the Exchange Offer to any Soliciting Dealer (as defined herein),
provided that the applicable Letter of Transmittal designates
such Soliciting Dealer as having solicited and obtained such
tender. The Company will pay all transfer taxes, if any,
applicable to the exchange of Series 1992 Preferred Stock
pursuant to the Exchange Offer. See "The Exchange Offer--Fees
and Expenses; Transfer Taxes."
<PAGE>
Comparison of Debentures and Series 1992 Preferred Stock
The following is a brief summary comparison of certain
of the principal terms of the Debentures and the Series 1992
Preferred Stock.
<TABLE>
<CAPTION>
Debentures Series 1992 Preferred
---------- Stock
---------------------
<S> <C> <C>
Interest/Dividend _____% annual interest 7.92% indicated annual
Rate from and including the dividend rate, cumulative
Issue Date (7.92% per and payable quarterly out
annum for the period from of funds legally available
and including May 6, 1995 therefor on February 15,
to and including the May 15, August 15 and
Expiration Date) payable November 15 of each year
quarterly in arrears on for the dividend periods
February 15, May 15, ending on the fifth day of
August 15 and November 15 each such month, when, as
of each year, commencing and if declared by the
August 15, 1995, subject Company's Board of
to the Company's right to Directors. All dividends
extend the interest on the Series 1992
payment period at any time Preferred Stock have been
and from time to time for paid to date and the
a period not exceeding Company has declared the
20 consecutive calendar dividend payable on
quarters, as described May 15, 1995 to holders of
herein. Upon the exercise record on April 21, 1995.
of such right to extend, In the event dividends are
and until payment in full not paid on a dividend
of all accrued interest, payment date in the
compounded quarterly, the future, holders would not
Company may not declare or be entitled to receive
pay dividends on, or interest on any dividend
redeem, purchase or arrearages.
acquire, any shares of its
capital stock (subject to
certain exceptions).
<PAGE>
Therefore, the Company
believes that any such
extension is unlikely.
Maturity March 15, 2025. There is None. There is no
no mandatory redemption or mandatory redemption or
sinking fund. sinking fund.
Optional Redeemable at the option Redeemable at the option
Redemption of the Company at any time of the Company at any time
after May 31, 1997, in after May 31, 1997, in
whole or in part, at a whole or in part, at a
redemption price of 100% redemption price of $25
of the principal amount of per share, in each case
the Debentures redeemed, plus accrued and unpaid
in each case plus accrued dividends to the date
and unpaid interest to the fixed for redemption.
date fixed for redemption.
Subordination Although senior to Subordinate to claims of
preferred stock of the creditors, including
Company, including the holders of the Company's
Series 1992 Preferred outstanding debt
Stock, and to the Common securities and the
Stock of the Company, the Debentures, but senior to
Debentures are unsecured the Common Stock of the
obligations of the Company Company. Effectively
and subordinated to all subordinated to all
existing and future Senior obligations of the
Indebtedness. Effectively Company's subsidiaries.
subordinated to all
obligations of the
Company's subsidiaries.
Voting Rights/ Subject to the Company's One-quarter vote per share
Enforcement right to extend payment as on matters presented to
described herein, holders shareholders of the
have the right to receive Company generally, with
interest and principal additional voting rights
payments as and when due, on certain matters. If
<PAGE>
but do not have any voting dividends shall be in
rights. Holders may arrears in an aggregate
institute suit for the amount equivalent to four
enforcement of any such full quarterly payments,
payment after the due the Holders have the right
date. (together with other
classes of preferred stock
ranking on a parity with
the Series 1992 Preferred
Stock either as to
dividends or on the
distribution of assets
upon liquidation) to elect
a majority of the full
Board of Directors.
Transfer The Debentures will be The Series 1992 Preferred
Restrictions; New registered under the Stock has been registered
York Stock Securities Act and will be under the Securities Act
Exchange Listing transferable to the extent and is transferable to the
permitted thereunder. The extent permitted
Company has applied to thereunder. The Series
list the Debentures on the 1992 Preferred Stock is
NYSE. listed on the NYSE.
Dividends Interest will not be Dividends are eligible for
Received eligible for the dividends the dividends received
Deduction received deduction. deduction (which is not
applicable to individual
shareholders).
Dividend Interest may not be Dividends on the Series
Reinvestment and reinvested under the DRIP. 1992 Preferred Stock may
Stock Purchase However, dividends on be reinvested in Common
Plan ("DRIP") other shares of the Stock of the Company in
Company's capital stock accordance with the DRIP.
held by a tendering
shareholder will remain
eligible for reinvestment
under the DRIP.
/TABLE
<PAGE>
SPECIAL CONSIDERATIONS RELATING TO
THE EXCHANGE OFFER AND THE DEBENTURES
Prospective exchanging shareholders should carefully
consider, in addition to the other information set forth
elsewhere in this Prospectus, the following:
Exchange as Taxable Event
The exchange of Series 1992 Preferred Stock for
Debentures pursuant to the Exchange Offer will be a taxable
event. Depending on each exchanging shareholder's particular
facts and circumstances, the exchange will be treated as (i) a
transaction in which gain or loss will be recognized in an amount
equal to the difference between the fair market value of the
Debentures received in the exchange and the exchanging
shareholder's tax basis in the shares of Series 1992 Preferred
Stock surrendered or (ii) a distribution taxable as a dividend in
an amount equal to the fair market value of the Debentures
received by such exchanging shareholder. See "Certain Federal
Income Tax Considerations" and "Certain Federal Tax
Considerations for Non-United States Persons." All holders of
Series 1992 Preferred Stock are advised to consult their own tax
advisors regarding the federal, state, local and foreign tax
consequences of the exchange of Series 1992 Preferred Stock.
Right of Company to Defer Payment of Interest
So long as the Company shall not be in default in the
payment of interest on the Debentures, the Company shall have the
right under the Indenture, upon prior notice by public
announcement given in accordance with NYSE rules at any time
during the term of the Debentures, to extend the interest payment
period at any time and from time to time for a period not
exceeding 20 consecutive calendar quarters. No interest shall be
due and payable during an Extension Period, but on the interest
payment date occurring at the end of each Extension Period the
Company shall pay to the holders of record on the record date for
such interest payment date (regardless of who the holders of
record may have been on other dates during the Extension Period)
all accrued and unpaid interest on the Debentures, together with
interest thereon, compounded quarterly at the rate of interest on
the Debentures. In the event that the Company exercises such
right to extend, the Company may not declare or pay dividends on,
or redeem, purchase or acquire, any shares of its capital stock
until deferred interest on the Debentures is paid in full,
subject to certain exceptions described herein. Therefore, the
Company believes that the extension of an interest payment period
on the Debentures is unlikely.
<PAGE>
Upon the termination of any Extension Period and the
payment of all interest then due, the Company may commence a new
Extension Period. After prior notice given by public
announcement in accordance with NYSE rules, the Company may also
prepay at any time all or a portion of the interest accrued
during an Extension Period. Consequently, there could be
multiple Extension Periods of varying lengths throughout the term
of the Debentures. See "Description of Debentures--Option to
Extend Interest Payment Period."
Potential Market Volatility During Extension Period
As described above, the Company has the right to extend
an interest payment period from time to time for a period not
exceeding 20 consecutive calendar quarters. In the event the
Company determines to extend an interest payment period, or in
the event the Company thereafter extends an Extension Period or
prepays interest accrued during an Extension Period as described
above, the market price of the Debentures is likely to be
adversely affected. In addition, as a result of such rights, the
market price of the Debentures may be more volatile than other
debt instruments with original issue discount that do not have
such rights. A holder that disposes of its Debentures during an
Extension Period, therefore, may not receive the same return on
its investment as a holder that continues to hold its Debentures.
See "Description of Debentures--Option to Extend Interest Payment
Period."
No Cash Payments During Extension Period to Pay Accrued Tax
Liability
In the event an Extension Period occurs, holders of the
Debentures would continue, under the original issue discount
rules, to accrue income on the Debentures for United States
federal income tax purposes. As a result, a holder that is
subject to United States federal income tax ordinarily would
include such amounts in gross income in advance of the receipt of
cash. A holder that disposes of its Debentures prior to the
record date for payment of interest at the end of an Extension
Period will not receive cash from the Company related to such
interest because such interest will be paid to the holder of
record on such record date, regardless of who the holders of
record may have been on other dates during the Extension Period.
The extent to which such a holder will receive a return on the
Debentures for the period it held such Debentures will depend on
the market for the Debentures at the time of such disposition.
See "--Differences In Timing and Amount Between Interest Payments
and Taxable Income" below and "Certain Federal Income Tax <PAGE>
Considerations--Interest and Original Issue Discount on
Debentures."
Differences In Timing and Amount Between Interest Payments and
Taxable Income
Because the original issue discount rules apply to the
Debentures, even if an Extension Period does not occur there may
be differences in timing and amount between the gross income
recognized with respect to a Debenture and the interest payable
on such Debenture. An owner of a Debenture (including one who
uses a calendar year for tax accounting) may be required to
include in income in each tax year original issue discount
corresponding to a portion of the interest payable during such
owner's next succeeding tax year. Furthermore, the amount of
original issue discount that an owner of Debentures will be
required to accrue over the term of such Debentures may be
greater than or less than the total amount of interest payable
with respect to such Debentures. If the fair market value of the
Debentures at the time of their issuance is less than their
stated principal amount, the difference will be included in
income over the term of such Debentures. If the fair market
value of the Debentures at the time of their issuance is greater
than their stated principal amount, the amount of original issue
discount included in income over the term of the Debentures will
be reduced by the difference. See "Certain Federal Income Tax
Considerations--Interest and Original Issue Discount on
Debentures."
Subordination of Debentures
The Debentures are senior to preferred stock of the
Company, including the 1992 Series Preferred Stock, and to the
Common Stock of the Company, but will be unsecured obligations of
the Company and subordinate to all existing and future Senior
Indebtedness of the Company. On December 31, 1994, approximately
$3.7 billion of such Senior Indebtedness was outstanding. There
are no terms of the Debentures that limit the Company's ability
to incur additional indebtedness, including indebtedness that
would rank senior to the Debentures. The Indenture does not
contain any cross-defaults to any other indebtedness of the
Company and, therefore, a default with respect to, or the
acceleration of, any such indebtedness will not constitute an
"Event of Default" with respect to the Debentures. As the
Debentures will be issued by the Company, the Debentures
effectively will be subordinate to all obligations of the
Company's subsidiaries. See "Description of Debentures--
Subordination."
<PAGE>
Listing and Trading of Debentures and Series 1992 Preferred Stock
The Debentures constitute a new issue of securities
with no established trading market. While application has been
made to list the Debentures on the NYSE and the Company
anticipates that a trading market will develop, there can be no
assurance that an active market for the Debentures will develop
or be sustained in the future on the NYSE. Although the Dealer
Managers have indicated to the Company that they intend to make a
market in the Debentures as permitted by applicable laws and
regulations prior to the commencement of trading on the NYSE,
they are not obligated to do so and may discontinue any such
market-making at any time without notice. In addition, because
interest on the Debentures will not be eligible for the dividends
received deduction, it is likely that fewer institutions will
hold the Debentures than currently hold the Series 1992 Preferred
Stock. Accordingly, no assurance can be given as to the
liquidity of, or trading markets for, the Debentures or whether
the sales price of the Debentures on the NYSE at the time of
issuance thereof (or at any time thereafter) will be greater than
or less than either the stated principal amount thereof or the
closing sales price of the Series 1992 Preferred Stock on the
NYSE on the Expiration Date.
Although the Exchange Offer is for all of the Series
1992 Preferred Stock (as of the date of this Prospectus,
5,000,000 shares of the Series 1992 Preferred Stock are
outstanding), the Company does not expect that all the Series
1992 Preferred Stock will be tendered for exchange in the
Exchange Offer. Under the rules of the NYSE, preferred stock
such as the Series 1992 Preferred Stock is subject to delisting
if (i) the aggregate market value of publicly-held shares is less
than $2 million or (ii) the number of publicly-held shares is
less than 100,000. Accordingly, based upon the market price of
the Series 1992 Preferred Stock on the NYSE (the closing sales
price of the Series 1992 Preferred Stock on the NYSE was $___ on
April ___, 1995, which was the last full trading day immediately
prior to the Company's first pubic announcement of the Exchange
Offer), if the number of shares of Series 1992 Preferred Stock
validly tendered and not withdrawn prior to the Expiration Date
exceeds 4,900,000 shares, the Series 1992 Preferred Stock would
be subject to delisting under such criteria. The Company has
determined, based in part upon such criteria, that the Exchange
Offer does not have either a reasonable likelihood or a purpose
of resulting, directly or indirectly, in the delisting of the
Series 1992 Preferred Stock.
In the event that the number of shares of Series 1992
Preferred Stock tendered for exchange in the Exchange Offer
(i.e., more than 4,900,000 shares) would, if accepted by the <PAGE>
Company, result in the risk that the Series 1992 Preferred Stock
to be outstanding following such acceptance would be delisted,
the Company will amend the Exchange Offer to decrease the number
of shares of Series 1992 Preferred Stock sought to such number as
would not result in delisting or to comply with Rule 13e-3 under
the Exchange Act.
To the extent that less than all of the Series 1992
Preferred Stock is exchanged for Debentures in the Exchange
Offer, the liquidity and trading market for the Series 1992
Preferred Stock to be outstanding following the Exchange Offer,
and the terms upon which such Series 1992 Preferred Stock could
be sold, could be adversely affected.
<PAGE>
THE COMPANY
The Company is an electric utility that conducts a
retail electric utility business through Pacific Power & Light
Company ("Pacific Power") and Utah Power & Light Company ("Utah
Power"), and engages in power production and sales on a wholesale
basis under the name PacifiCorp. The Company is the indirect
owner, through PacifiCorp Holdings, Inc. (a wholly-owned
subsidiary), of 86.6% of Pacific Telecom, Inc. ("Pacific
Telecom") and 100% of each of Pacific Generation Company ("PGC")
and PacifiCorp Financial Services, Inc. ("PFS"). Reference is
made to the Incorporated Documents for information concerning a
proposed merger transaction that would increase the Company's
ownership interest in Pacific Telecom to 100%.
The Company furnishes electric service in portions of
seven western states: California, Idaho, Montana, Oregon, Utah,
Washington and Wyoming. Pacific Telecom, through its
subsidiaries, provides local telephone service and access to the
long distance network in Alaska, seven other western states and
three midwestern states, provides intrastate and interstate long
distance communication services in Alaska, provides cellular
mobile telephone services, and is engaged in sales of capacity in
and operation of a submarine fiber optic cable between the United
States and Japan. PGC is engaged in the independent power
production and cogeneration business. PFS plans to continue to
sell portions of its loan, leasing and real estate investments.
The principal executive offices of the Company are
located at 700 NE Multnomah, Suite 1600, Portland, Oregon 97232;
the telephone number is (503) 731-2000.
<PAGE>
SELECTED FINANCIAL INFORMATION
(Dollar amounts in millions, except per share amounts)
The following selected financial information for each
of the three years in the period ended December 31, 1994 has been
derived from the consolidated financial statements of the Company
for the respective periods. The consolidated financial
statements for the three-year period ended December 31, 1994 have
been audited by Deloitte & Touche LLP, independent auditors, and
the reports of Deloitte & Touche LLP are incorporated herein by
reference. This selected financial information should be read in
conjunction with the financial statements and related notes
thereto included in the Incorporated Documents.
<TABLE>
<CAPTION>
Twelve Months Ended
December 31,
---------------------------
1992 1993 1994
---- ---- ----
<S> <C> <C> <C>
Income Statement Data:
Revenues . . . . . . . . . . . . . . . $3,236 $3,405 $3,507
Income from Operations (1) . . . . . . 633 916 987
Income from Continuing
Operations . . . . . . . . . . . . . . 150 423 468
Discontinued Operations (2). . . . . . (491) 52 --
Cumulative Effect on Prior Years
of a Change in Accounting for
Income Taxes . . . . . . . . . . . . -- 4 --
Net Income (Loss). . . . . . . . . . . (341) 479 468
Preferred Stock Dividend
Requirements . . . . . . . . . . . . 37 39 40
Earnings (Loss) on
Common Stock . . . . . . . . . . . . (378) 440 428
Earnings (Loss) per Common
Share:
Continuing Operations . . . . . . .42 1.40 1.51
Discontinued Operations . . . . . (1.84) .19 --
Cumulative Effect on Prior Years
of a Change in Accounting
for Income Taxes. . . . . . . . -- .01 --
/TABLE
<PAGE>
<TABLE>
<CAPTION>
Twelve Months Ended
December 31,
-------------------------
1992 1993 1994
---- ---- ----
<S> <C> <C> <C>
Other Data:
Ratio of Earnings to
Fixed Charges(4) . . . . . . . . . . . 1.6x 2.5x 3.0x
Ratio of Earnings to Combined
Fixed Charges and Preferred
Stock Dividends(5) . . . . . . . . . . 1.4x 2.2x 2.6x
</TABLE>
<TABLE>
December 31, 1994
----------------------------------------------------
As Adjusted(3)
--------------------------------
Assuming Assuming
Actual 50% Exchange 75% Exchange
------------- -------------- ---------------
Amount % Amount % Amount %
------------- -------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Capital Structure:
Debt and Capital
Lease Obligations. . . . . . . $ 4,319 52% $ 4,319 52% $ 4,319 52%
Subordinated Debt. . . . . . . -- 0 63 0 94 1
------- --- ------- --- ------- ---
Total Debt and
Capital Lease Obligations. 4,319 52 4,382 52 4,413 53
Preferred Stock. . . . . . . . 367 4 304 4 273 3
Preferred Stock Subject to
Mandatory Redemption . . . . 219 3 219 3 219 3
Common Equity. . . . . . . . . 3,460 41 3,460 41 3,460 41
------- ---- ------- ---- ------- ----
Total. . . . . . . . . . . . . $ 8,365 100% $ 8,365 100% $ 8,365 100%
======= ==== ======= ==== ======= ====
_______________
<FN>
(1) Income before income taxes, interest, other nonoperating items,
discontinued operations and cumulative effect of a change in an
accounting principle.
(2) Discontinued operations represents the Company's interests in
NERCO, Inc., the disposition of which was completed pursuant to a merger
in June 1993, and an international communications subsidiary of Pacific
Telecom, the disposition of which was completed in September 1993.
(3) Adjusted to give effect to the issuance of the Debentures in
exchange for the 1992 Series Preferred Stock at the indicated assumed
acceptance rates.
(4) Ratios for 1990 and 1991 were 2.3 x and 2.4 x, respectively.
(5) Ratios for 1990 and 1991 were 2.2 x and 2.2 x, respectively.
/TABLE
<PAGE>
THE EXCHANGE OFFER
General
Participation in the Exchange Offer is voluntary and
Holders (as defined below) should carefully consider whether or
not to accept. Neither the Board of Directors, the Company nor
the Dealer Managers make any recommendation to Holders as to
whether or not to tender in the Exchange Offer. Holders of the
Series 1992 Preferred Stock are urged to consult their financial
and tax advisors in making their own decisions on what action to
take in light of their own particular circumstances.
Unless the context requires otherwise, the term
"Holder" with respect to the Exchange Offer means (i) any person
in whose name any Series 1992 Preferred Stock is registered on
the books of the Company, (ii) any other person who has obtained
a properly completed stock power from the registered holder or
(iii) any person whose Series 1992 Preferred Stock is held of
record by The Depository Trust Company ("DTC"), the Midwest
Securities Trust Company ("MSTC") or the Philadelphia Depository
Trust Company ("PDTC") (each, a "Book-Entry Transfer Facility")
who desires to deliver such Series 1992 Preferred Stock by book-
entry transfer at such Book-Entry Transfer Facility.
Purpose of the Exchange Offer
The principal purpose of the Exchange Offer is to
improve the Company's after-tax cash flow by replacing the
Series 1992 Preferred Stock with the Debentures. The potential
cash flow benefit to the Company arises because interest payable
on the Debentures (whether paid currently or deferred under the
terms of the Debentures) generally will be deductible by the
Company as it accrues for federal income tax purposes, while
dividends payable on the Series 1992 Preferred Stock are not
deductible. The extent of this cash flow benefit, however,
cannot be predicted because it depends upon the number of shares
of Series 1992 Preferred Stock exchanged pursuant to the Exchange
Offer, upon the Company's United States federal income tax
position in any year and the period of time the Debentures remain
outstanding. Neither the Company's ability to defer interest
payments on the Debentures nor the lack of voting rights on the
part of holders of the Debentures is a purpose of the Company in
making the Exchange Offer.
Except in connection with the Exchange Offer, the
Company has no present plans or intention to make any
acquisitions of or offers for the Series 1992 Preferred Stock.
However, following the expiration of the Exchange Offer and
depending on the number of shares of Series 1992 Preferred Stock
tendered in the Exchange Offer, the Company will continue to <PAGE>
monitor the market for the Series 1992 Preferred Stock and
reserves the right, in its sole discretion, to acquire and to
make offers for Series 1992 Preferred Stock subsequent to the
Expiration Date for cash or in exchange for other securities, by
optional redemption or otherwise. The terms of any such
acquisitions or offers may differ from the terms of the Exchange
Offer. Such acquisitions or offers, if any, would depend upon,
among other things, the price and availability of such shares and
the Company's tax position.
Terms of the Exchange Offer
Upon the terms and subject to the conditions set forth
herein and in the Letter of Transmittal, the Company will
exchange up to $125,000,000 aggregate principal amount of
Debentures for up to all of the outstanding shares of Series 1992
Preferred Stock. The Debentures are offered in minimum
denominations of $25 and integral multiples thereof, and the
Series 1992 Preferred Stock has a liquidation preference of $25
per share. Consequently, the Exchange Offer will be effected on
the basis of $25 principal amount of Debentures for each share
of Series 1992 Preferred Stock validly tendered and accepted for
exchange in the Exchange Offer. Upon the terms and subject to
the conditions set forth herein and in the Letter of Transmittal,
the Company will accept Series 1992 Preferred Stock validly
tendered and not withdrawn as promptly as practicable after the
Expiration Date unless the Exchange Offer has been withdrawn or
terminated. The Company will not accept Series 1992 Preferred
Stock for exchange prior to the Expiration Date. The Company
expressly reserves the right, in its sole discretion, to delay
acceptance for exchange of Series 1992 Preferred Stock tendered
under the Exchange Offer or the exchange of the Debentures for
the Series 1992 Preferred Stock accepted for exchange (subject
to Rules 13e-4 and 14e-1 under the Exchange Act, which require
that the Company consummate the Exchange Offer or return the
Series 1992 Preferred Stock deposited by or on behalf of the
Holders thereof promptly after the termination or withdrawal of
the Exchange Offer), or to withdraw or terminate the Exchange
Offer and not accept any Series 1992 Preferred Stock at any time
for any reason. In all cases, except to the extent waived by the
Company, delivery of Debentures in exchange for the Series 1992
Preferred Stock accepted for exchange pursuant to the Exchange
Offer will be made only after timely receipt by the Exchange
Agent of Series 1992 Preferred Stock (or confirmation of book-
entry transfer thereof), a properly completed and duly executed
Letter of Transmittal and any other documents required thereby.
Partial tenders are permitted upon the terms and subject to the
conditions set forth herein and in the Letter of Transmittal.
As of April __, 1995, there were 5,000,000 shares of
Series 1992 Preferred Stock outstanding. This Prospectus, <PAGE>
together with the Letter of Transmittal, is being sent to all
registered Holders as of April __, 1995. Shares of Series 1992
Preferred Stock exchanged pursuant to the Exchange Offer will
revert to the status of authorized but unissued shares of the
Company's No Par Serial Preferred Stock.
The Company shall be deemed to have accepted validly
tendered Series 1992 Preferred Stock (or defectively tendered
Series 1992 Preferred Stock with respect to which the Company has
waived such defect) when, as and if the Company has given oral
or written notice thereof to the Exchange Agent. The Exchange
Agent will act as agent for the tendering Holders for the purpose
of receiving the Debentures from the Company and remitting such
Debentures to tendering Holders. Upon the terms and subject to
the conditions of the Exchange Offer, delivery of Debentures in
exchange for Series 1992 Preferred Stock will be made as promptly
as practicable after the Expiration Date.
If any tendered Series 1992 Preferred Stock is not
accepted for exchange because of an invalid tender, the
occurrence of certain other events set forth herein or otherwise,
unless otherwise requested by the Holder under "Special Delivery
Instructions" in the Letter of Transmittal, such Series 1992
Preferred Stock will be returned, without expense to the
tendering Holder thereof (or in the case of Series 1992 Preferred
Stock tendered by book-entry transfer into the Exchange Agent's
account at a Book-Entry Transfer Facility, such Series 1992
Preferred Stock will be credited to an account maintained at such
Book-Entry Transfer Facility designated by the participant
therein who so delivered such Series 1992 Preferred Stock), as
promptly as practicable after the Expiration Date or the
withdrawal or termination of the Exchange Offer.
Holders of Series 1992 Preferred Stock will not have
any appraisal or dissenters' rights under the Oregon Business
Corporation Act (the "OBCA") in connection with the Exchange
Offer. The Company intends to conduct the Exchange Offer in
accordance with the applicable requirements of the Exchange Act
and the rules and regulations of the Commission thereunder.
Holders who tender Series 1992 Preferred Stock in the
Exchange Offer will not be required to pay brokerage commissions
or fees or, subject to the instructions in the Letter of
Transmittal, transfer taxes with respect to the exchange of
Series 1992 Preferred Stock for Debentures pursuant to the
Exchange Offer. See "--Fees and Expenses; Transfer Taxes."
Expiration Date; Extensions; Amendments; Termination
The Exchange Offer will expire on the Expiration Date.
The term "Expiration Date" shall mean 5:00 p.m., New York City
<PAGE>
time, on May __, 1995, unless the Company, in its sole
discretion, extends the Exchange Offer, in which case the term
"Expiration Date" shall mean the latest date and time to which
the Exchange Offer is extended.
The Company reserves the right to extend the Exchange
Offer in its sole discretion at any time and from time to time
by giving oral or written notice to the Exchange Agent and by
timely public announcement communicated, unless otherwise
required by applicable law or regulation, by making a release to
the Dow Jones News Service. During any extension of the Exchange
Offer, all Series 1992 Preferred Stock previously tendered
pursuant to the Exchange Offer and not withdrawn will remain
subject to the Exchange Offer.
The Company expressly reserves the right to (i) amend
or modify the terms of the Exchange Offer in any manner and (ii)
withdraw or terminate the Exchange Offer and not accept for
exchange any Series 1992 Preferred Stock, at any time for any
reason, including (without limitation) if fewer than 1,000,000
shares of Series 1992 Preferred Stock are tendered (which
condition may be waived by the Company).
If the Company makes a material change in the terms of
the Exchange Offer or if it waives a material condition of the
Exchange Offer, the Company will extend the Exchange Offer. The
minimum period for which the Exchange Offer will be extended
following a material change or waiver, other than a change in the
amount of Series 1992 Preferred Stock sought for exchange, will
depend upon the facts and circumstances, including the relative
materiality of the change or waiver. With respect to a change
in the amount of Series 1992 Preferred Stock sought, the offer
will be extended for a minimum of 10 business days following
public announcement of such change. Any withdrawal or
termination of the Exchange Offer will be followed as promptly
as practicable by public announcement thereof. In the event the
Company withdraws or terminates the Exchange Offer, it will give
immediate notice to the Exchange Agent, and all Series 1992
Preferred Stock theretofore tendered pursuant to the Exchange
Offer will be returned promptly to the tendering Holders thereof.
See "--Withdrawal of Tenders."
Accumulated Dividends and Interest on Debentures
The Debentures will bear interest at an annual rate of
_____% from and including the Issue Date. The dividend on the
Series 1992 Preferred Stock payable on May 15, 1995 for the
period February 6, 1995 through May 5, 1995 will be payable to
shareholders of record on April 21, 1995, regardless of when
shares of the Series 1992 Preferred Stock are tendered pursuant
to the Exchange Offer. Dividends accumulated after May 5, 1995
<PAGE>
will not be paid on Series 1992 Preferred Stock accepted for
exchange in the Exchange Offer. In lieu thereof, registered
holders of Debentures on August 1, 1995 will be entitled to
interest at a rate of 7.92% per annum (equal to the indicated
annual dividend rate on the Series 1992 Preferred Stock) from and
including May 6, 1995 to and including the Expiration Date,
payable on August 15, 1995, which is the date of the first
interest payment on the Debentures. See "Description of
Debentures--Interest."
Procedures for Tendering
The tender of Series 1992 Preferred Stock by a Holder
thereof pursuant to one of the procedures set forth below will
constitute an agreement between such Holder and the Company in
accordance with the terms and subject to the conditions set forth
herein and in the Letter of Transmittal.
Each Holder of the Series 1992 Preferred Stock wishing
to accept the Exchange Offer must (i) unless an Agent's Message
(as defined below) is utilized in connection with a book-entry
transfer, properly complete and sign the Letter of Transmittal
or a facsimile thereof (all references in this Prospectus to the
Letter of Transmittal shall be deemed to include a facsimile
thereof) in accordance with the instructions contained herein and
therein, together with any required signature guarantees, and
deliver the same to the Exchange Agent, at either of its
addresses set forth under "--Exchange Agent and Information
Agent" below and either (a) certificates for the Series 1992
Preferred Stock must be received by the Exchange Agent at such
address or (b) such Series 1992 Preferred Stock must be
transferred pursuant to the procedures for book-entry transfer
described under "--Book Entry Transfer" below and a confirmation
of such book-entry transfer must be received by the Exchange
Agent, in each case prior to the Expiration Date, or (ii) comply
with the guaranteed delivery procedures described under
"--Guaranteed Delivery" below.
Letters of Transmittal, Series 1992 Preferred Stock and
any other required documents should be sent only to the Exchange
Agent, and not to the Company, the Dealer Managers or the
Information Agent.
Signature Guarantees. If tendered Series 1992
Preferred Stock is registered in the name of the signer of the
Letter of Transmittal and the Debentures to be issued in exchange
therefor are to be issued (and any untendered Series 1992
Preferred Stock is to be reissued) in the name of the registered
Holder (which term, for the purposes described herein, shall
include any participant in a Book-Entry Transfer Facility whose
name appears on a security listing as the owner of Series 1992
<PAGE>
Preferred Stock), the signature of such signer need not be
guaranteed. If the tendered Series 1992 Preferred Stock is
registered in the name of someone other than the signer of the
Letter of Transmittal, such tendered Series 1992 Preferred Stock
must be endorsed or accompanied by written instruments of
transfer in form satisfactory to the Company and duly executed
by the registered Holder, and the signature on the endorsement
or instrument of transfer must be guaranteed by a financial
institution (including most banks, savings and loans associations
and brokerage houses) that is a participant in the Security
Transfer Agents Medallion Program or The New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange
Medallion Program (any of the foregoing hereinafter referred to
as an "Eligible Institution"). If the Debentures and/or
Series 1992 Preferred Stock not accepted for exchange are to be
delivered to an address other than that of the registered Holder
appearing on the register for the Series 1992 Preferred Stock,
the signature in the Letter of Transmittal must be guaranteed by
an Eligible Institution. Any beneficial owner whose Series 1992
Preferred Stock is registered in the name of a broker, dealer,
commercial bank, trust company or other nominee and who wishes
to tender should contact such registered holder promptly and
instruct such registered holder to tender on such beneficial
owner's behalf. If such beneficial owner wishes to tender on its
own behalf, such owner must, prior to completing and executing
a Letter of Transmittal and delivering its Series 1992 Preferred
Stock, either make appropriate arrangements to register ownership
of the Series 1992 Preferred Stock in such owner's name or obtain
a properly completed stock power from the registered holder. The
transfer of registered ownership may take considerable time and
may not be able to be completed prior to the Expiration Date.
The method of delivery of the Letter of Transmittal,
Series 1992 Preferred Stock and all other documents is at the
election and risk of the Holder and, except as otherwise provided
herein, the delivery will be deemed made only when actually
received by the Exchange Agent. If sent by mail, it is
recommended that registered mail, return receipt requested, be
used, prior insurance be obtained, and the mailing be made
sufficiently in advance of the Expiration Date to permit delivery
to the Exchange Agent on or before the Expiration Date.
Book-Entry Transfer. The Company understands that the
Exchange Agent will make a request promptly after the date of
this Prospectus to establish accounts with respect to the
Series 1992 Preferred Stock at each of the Book-Entry Transfer
Facilities for the purpose of facilitating the Exchange Offer,
and subject to the establishment thereof, any financial
institution that is a participant in any Book-Entry Transfer
Facility system may make book-entry delivery of Series 1992
Preferred Stock by causing such Book-Entry Transfer Facility to
<PAGE>
transfer such Series 1992 Preferred Stock into the Exchange
Agent's account with respect to the Series 1992 Preferred Stock
in accordance with procedures established by such Book-Entry
Transfer Facility for such book-entry transfers. However, the
exchange for the Series 1992 Preferred Stock so tendered will
only be made after timely confirmation (a "Book-Entry
Confirmation") of such book-entry transfer of Series 1992
Preferred Stock into the Exchange Agent's account at the
applicable Book-Entry Facility, and, if applicable, timely
receipt by the Exchange Agent of an Agent's Message, and any
other documents required by the Letter of Transmittal. The term
"Agent's Message" means a message, transmitted by a Book-Entry
Transfer Facility and received by the Exchange Agent and forming
a part of a Book-Entry Confirmation, which states that the Book-
Entry Transfer Facility has received an express acknowledgment
from a participant tendering Series 1992 Preferred Stock that is
the subject of such Book-Entry Confirmation that such participant
has received and agrees to be bound by the terms of the Letter
of Transmittal, and that the Company may enforce such agreement
against such participant.
Guaranteed Delivery. If a Holder desires to accept the
Exchange Offer and time will not permit a Letter of Transmittal
or certificates for Series 1992 Preferred Stock to reach the
Exchange Agent before the Expiration Date or the procedure for
book-entry transfer cannot be completed on a timely basis, a
tender may be effected if the Exchange Agent has received at its
office prior to the Expiration Date, a letter, telegram or
facsimile transmission from an Eligible Institution setting forth
the name and address of the tendering Holder, the name(s) in
which the Series 1992 Preferred Stock is registered and, if the
Series 1992 Preferred Stock is held in certificated form, the
certificate number(s) of the Series 1992 Preferred Stock to be
tendered, and stating that the tender is being made thereby and
guaranteeing that within five NYSE trading days after the date
of execution of such letter, telegram or facsimile transmission
by such Eligible Institution, the Series 1992 Preferred Stock in
proper form for transfer together with a properly completed and
duly executed Letter of Transmittal (and any other required
documents), or a confirmation of book-entry transfer of such
Series 1992 Preferred Stock into the Exchange Agent's account at
a Book-Entry Transfer Facility, will be delivered by such
Eligible Institution. Unless the Series 1992 Preferred Stock
being tendered by the above-described method is deposited with
the Exchange Agent (accompanied or preceded by a properly
completed Letter of Transmittal and any other required
documents), or a Book-Entry Confirmation (together with an
Agent's Message) is received by the Exchange Agent, in each case
within the time period set forth above, the Company may, at its
option, reject the tender. Copies of a Notice of Guaranteed
Delivery which may be used by Eligible Institutions for the <PAGE>
purposes described in this paragraph are available from the
Exchange Agent and the Information Agent.
Miscellaneous. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for
exchange of any tender of Series 1992 Preferred Stock will be
determined by the Company, whose determination will be final and
binding. The Company reserves the absolute right to reject any
or all tenders not in proper form or the acceptance for exchange
of which may, in the opinion of the Company's counsel, be
unlawful. The Company also reserves the absolute right to waive
any defect or irregularity in the tender of any Series 1992
Preferred Stock, and the Company's interpretation of the terms
and conditions of the Exchange Offer (including the instructions
in the Letter of Transmittal) will be final and binding. None
of the Company, the Exchange Agent, the Dealer Managers, the
Information Agent or any other person will be under any duty to
give notification of any defects or irregularities in tenders or
incur any liability for failure to give any such notification.
Tenders of Series 1992 Preferred Stock involving any
irregularities will not be deemed to have been made until such
irregularities have been cured or waived. Series 1992 Preferred
Stock received by the Exchange Agent that is not validly tendered
and as to which the irregularities have not been cured or waived
will be returned by the Exchange Agent to the tendering Holder
(or, in the case of Series 1992 Preferred Stock tendered by book-
entry transfer into the Exchange Agent's account at a Book-
Entry Transfer Facility, such Series 1992 Preferred Stock will
be credited to an account maintained at such Book-Entry Transfer
Facility designated by the participant therein who so delivered
such Series 1992 Preferred Stock), unless otherwise requested by
the Holder in the Letter of Transmittal, as promptly as
practicable after the Expiration Date or the withdrawal or
termination of the Exchange Offer.
Letter of Transmittal
The Letter of Transmittal contains, among other things,
the following terms and conditions, which are part of the
Exchange Offer.
The party tendering Series 1992 Preferred Stock for
exchange (the "Transferor") exchanges, assigns and transfers the
Series 1992 Preferred Stock to the Company and irrevocably
constitutes and appoints the Exchange Agent as the Transferor's
agent and attorney-in-fact to cause the Series 1992 Preferred
Stock to be assigned, transferred and exchanged. The Transferor
represents and warrants that it has full power and authority to
tender, exchange, assign and transfer the Series 1992 Preferred
Stock and to acquire Debentures issuable upon the exchange of <PAGE>
such tendered Series 1992 Preferred Stock, and that, when the
same are accepted for exchange, the Company will acquire good and
unencumbered title to the tendered Series 1992 Preferred Stock,
free and clear of all liens, restrictions, charges and
encumbrances and not subject to any adverse claim. The
Transferor also warrants that it will, upon request, execute and
deliver any additional documents deemed by the Company to be
necessary or desirable to complete the exchange, assignment and
transfer of tendered Series 1992 Preferred Stock or transfer
ownership of such Series 1992 Preferred Stock on the account
books maintained by the Book-Entry Transfer Facilities. All
authority conferred by the Transferor will survive the death,
bankruptcy or incapacity of the Transferor and every obligation
of the Transferor shall be binding upon the heirs, personal
representatives, successors and assigns of such Transferor.
Withdrawal of Tenders
Tenders of Series 1992 Preferred Stock pursuant to the
Exchange Offer may be withdrawn at any time prior to the
Expiration Date and, unless accepted for exchange by the Company,
may be withdrawn at any time after 40 business days after the
date of this Prospectus.
To be effective, a written notice of withdrawal
delivered by mail, hand delivery or facsimile transmission must
be timely received by the Exchange Agent at the address set forth
in the Letter of Transmittal. The method of notification is at
the risk and election of the Holder. Any such notice of
withdrawal must specify (i) the Holder named in the Letter of
Transmittal as having tendered Series 1992 Preferred Stock to be
withdrawn, (ii) if the Series 1992 Preferred Stock is held in
certificated form, the certificate number(s) of the Series 1992
Preferred Stock to be withdrawn, (iii) that such Holder is
withdrawing its election to have such Series 1992 Preferred Stock
exchanged and (iv) the name of the registered Holder of such
Series 1992 Preferred Stock and must be signed by the Holder in
the same manner as the original signature on the Letter of
Transmittal (including any required signature guarantees) or be
accompanied by evidence satisfactory to the Company that the
person withdrawing the tender has succeeded to the beneficial
ownership of the Series 1992 Preferred Stock being withdrawn.
The Exchange Agent will return the properly withdrawn Series 1992
Preferred Stock promptly following receipt of notice of
withdrawal. If Series 1992 Preferred Stock has been tendered
pursuant to the procedure for book-entry transfer, any notice of
withdrawal must specify the name and number of the account at the
Book-Entry Transfer Facility to be credited with the withdrawn
Series 1992 Preferred Stock and otherwise comply with such Book-
Entry Transfer Facility's procedures. All questions as to the
validity of notice of withdrawal, including time of receipt, will
<PAGE>
be determined by the Company, and such determination will be
final and binding on all parties. Withdrawals of tenders of
Series 1992 Preferred Stock may not be rescinded and any
Series 1992 Preferred Stock withdrawn will thereafter be deemed
not validly tendered for purposes of the Exchange Offer.
Properly withdrawn Series 1992 Preferred Stock, however, may be
retendered by following the procedures therefor described
elsewhere herein at any time prior to the Expiration Date. See
"--Procedures for Tendering."
Acceptance of Shares and Delivery of Debentures
Upon the terms and subject to the conditions of the
Exchange Offer, including the reservation by the Company of the
right to withdraw, amend or terminate the Exchange Offer and
certain other rights, the Company will accept for exchange all
shares of Series 1992 Preferred Stock that are properly tendered
in the Exchange Offer and not withdrawn prior to the Expiration
Date. Subject to such terms and conditions, the Debentures
issued pursuant to the Exchange Offer will be issued as of the
Issue Date and will be delivered as promptly as practicable
thereafter. See "--Terms of the Exchange Offer" and
"--Expiration Date; Extensions; Amendments; Termination."
Exchange Agent and Information Agent
The Bank of New York has been appointed as Exchange
Agent for the Exchange Offer.
The Exchange Agent:
The Bank of New York
By Hand or Overnight Courier: By Mail:
The Bank of New York The Bank of New York
101 Barclay Street PO Box 11248
New York, NY 10286 Church Street Station
Attention: Tender and Exchange New York, NY 10286
Receive and Deliver Window, Attention: Tender and
Street Level Exchange
By Facsimile:
(For Eligible Institutions Only)
(212) 815-6213
Confirm Receipt of Notice of Guaranteed Delivery by Telephone:
(800) 507-9357
Georgeson & Company Inc. has been retained by the
Company as the Information Agent to assist in connection with the
Exchange Offer. Questions and requests for assistance regarding
<PAGE>
the Exchange Offer, requests for additional copies of this
Prospectus or of the Letter of Transmittal and requests for
Notice of Guaranteed Delivery may be directed to the Information
Agent at Wall Street Plaza, New York, New York 10005, telephone
(800) 223-2064.
The Company will pay the Exchange Agent and the
Information Agent reasonable and customary fees for their
services and will reimburse them for all their reasonable out-
of-pocket expenses in connection therewith.
Dealer Managers
Goldman, Sachs & Co. and Salomon Brothers Inc, as
Dealer Managers, have agreed to solicit exchanges of Series 1992
Preferred Stock for Debentures. The Company will pay each Dealer
Manager a fee that is dependent on the number of shares of
Series 1992 Preferred Stock accepted pursuant to the Exchange
Offer. The maximum fee payable is approximately $1,225,000. The
Company will also reimburse the Dealer Managers for certain
reasonable out-of-pocket expenses in connection with the Exchange
Offer and will indemnify the Dealer Managers against certain
liabilities, including liabilities under the Securities Act.
Additional solicitation may be made by telecopier, telephone or
in person by officers and regular employees of the Company and
its affiliates. No additional compensation will be paid to any
such officers and employees who engage in soliciting tenders.
Listing and Trading of Debentures and Series 1992 Preferred
Stock; Transfer Restrictions
There has not previously been any public market for the
Debentures. While application has been made to list the
Debentures on the NYSE and the Company anticipates that a market
will develop, there can be no assurance that an active market for
the Debentures will develop or be sustained in the future on the
NYSE. Although the Dealer Managers have indicated to the Company
that they intend to make a market in the Debentures as permitted
by applicable laws and regulations, they are not obligated to do
so and may discontinue any such market-making at any time without
notice. Accordingly, no assurance can be given as to the
liquidity of, or trading markets for, the Debentures.
The Series 1992 Preferred Stock has been registered
under the Securities Act and is transferable to the extent
permitted thereunder. The Series 1992 Preferred Stock is listed
on the NYSE. The Company does not believe that the Exchange
Offer has a reasonable likelihood of causing the Series 1992
Preferred Stock to be delisted. Holders of Series 1992 Preferred
Stock who do not tender their Series 1992 Preferred Stock in the
Exchange Offer or whose Series 1992 Preferred Stock is not <PAGE>
accepted for exchange will continue to hold such Series 1992
Preferred Stock and will be entitled to all the rights and
preferences, and will be subject to all of the limitations
applicable thereto. See "Description of Capital Stock."
Moreover, to the extent that Series 1992 Preferred Stock is
tendered and accepted in the Exchange Offer, a holder's ability
to sell Series 1992 Preferred Stock not tendered for exchange
could be adversely affected.
Transactions and Arrangements Concerning the Series 1992
Preferred Stock
Except as described herein, there are no contracts,
arrangements, understandings or relationships in connection with
the Exchange Offer between the Company or any of its directors
or executive officers and any person with respect to any
securities of the Company, including the Debentures and the
Series 1992 Preferred Stock.
Fees and Expenses; Transfer Taxes
The expenses of soliciting tenders of the Series 1992
Preferred Stock will be borne by the Company. For compensation
to be paid to the Dealer Managers see "--Dealer Managers." The
total cash expenditures to be incurred by the Company in
connection with the Exchange Offer, other than fees payable to
the Dealer Managers, but including the expenses of the Dealer
Managers, printing, accounting and legal fees, and the fees and
expenses of the Exchange Agent, the Information Agent and the
Trustee under the Indenture, are estimated to be approximately
$2,500,000.
The Company will pay a solicitation fee of $0.50 per
share of Series 1992 Preferred Stock for any Series 1992
Preferred Stock tendered and accepted for exchange pursuant to
the Exchange Offer covered by a Letter of Transmittal that
designates, as having solicited and obtained such tender, the
name of any of the following persons: (i) any broker or dealer
in securities, including either of the Dealer Managers in its
capacity as a broker or dealer, which is a member of any national
securities exchange or of the National Association of Securities
Dealers, Inc. (the "NASD"), (ii) any foreign broker or dealer not
eligible for membership in the NASD which agrees to conform to
the NASD's Rules of Fair Practice in soliciting tenders outside
the United States to the same extent as though it were an NASD
member or (iii) any bank or trust company (each of which is
referred to herein as a "Soliciting Dealer").
No such fee shall be payable to a Soliciting Dealer if
such Soliciting Dealer is required for any reason to transfer the
amount of such fee to a tendering holder (other than itself).
<PAGE>
Soliciting Dealers are not entitled to receive such fees for any
Series 1992 Preferred Stock tendered for their own account. No
broker, dealer, bank, trust company or fiduciary shall be deemed
to be the agent of the Company, the Exchange Agent, the Dealer
Managers or the Information Agent for purposes of the Exchange
Offer.
The Company will also, upon request, reimburse
Soliciting Dealers for reasonable and customary handling and
mailing expenses incurred by them in forwarding materials
relating to the Exchange Offer to their customers.
The Company will pay all transfer taxes, if any,
applicable to the exchange of Series 1992 Preferred Stock
pursuant to the Exchange Offer. If, however, certificates
representing Debentures, or shares of Series 1992 Preferred Stock
not tendered or not accepted for exchange, are to be delivered
to, or are to be issued in the name of, any person other than the
registered Holder of the Series 1992 Preferred Stock tendered or
if a transfer tax is imposed for any reason other than the
exchange of Series 1992 Preferred Stock pursuant to the Exchange
Offer, then the amount of any such transfer taxes (whether
imposed on the registered Holder or any other persons) will be
payable by the tendering Holder. If satisfactory evidence of
payment of such taxes or exemption therefrom is not submitted
with the Letter of Transmittal, the amount of such transfer taxes
will be billed directly to such tendering Holder.
<PAGE>
PRICE RANGE OF SERIES 1992 PREFERRED STOCK
The Series 1992 Preferred Stock is listed and
principally traded on the NYSE. The following table sets forth,
for each period shown, the high and low sales prices of the
Series 1992 Preferred Stock as reported on the NYSE Composite
Tape.
Price Range
-----------
High Low
---- ---
1993:
First Quarter 26 1/2 24 1/4
Second Quarter 26 3/4 25 1/8
Third Quarter 26 7/8 25 1/2
Fourth Quarter 27 25 1/8
1994:
First Quarter 27 1/8 24 5/8
Second Quarter 25 5/8 23 5/8
Third Quarter 24 7/8 23 7/8
Fourth Quarter 24 1/4 22 1/8
1995:
First Quarter 25 1/2 23 1/4
Second Quarter (through
April 10, 1995) 25 1/2 25 1/8
On April __, 1995, the last full day of trading prior
to the first public announcement of the Exchange Offer, the
closing sales price of the Series 1992 Preferred Stock on the
NYSE as reported on the Composite Tape was $___ per share.
Holders are urged to obtain a current market quotation for the
Series 1992 Preferred Stock.
DESCRIPTION OF DEBENTURES
General
The Debentures will be issued as a series of unsecured
Junior Subordinated Debentures (the "Junior Subordinated
Debentures") under an Indenture to be dated as of May 1, 1995
between the Company and The Bank of New York, as trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture
thereto (as so supplemented, the "Indenture"). The following
summary does not purport to be complete and is subject in all
respects to the provisions of and is qualified in its entirety
by reference to the Indenture, which is filed as an exhibit to
the Registration Statement. Whenever particular provisions or
defined terms in the Indenture are referred to herein, such
provisions or defined terms are incorporated by reference herein.
<PAGE>
Section and Article references used herein are references to
provisions of the Indenture unless otherwise noted.
The Debentures will be unsecured, subordinated
obligations of the Company, will be limited in aggregate
principal amount to the aggregate principal amount of Debentures
issued in the Exchange Offer and will become due and payable,
together with any accrued and unpaid interest thereon, on May __,
2025. The Debentures will be issued only in fully registered
form, without coupons, in minimum denominations of $25 and
integral multiples thereof and may be transferred or exchanged
at the offices described below.
The Indenture provides that Junior Subordinated
Debentures may be issued from time to time in one or more series
pursuant to an indenture supplemental to the Indenture or a
resolution of the Company's Board of Directors (each, a
"Supplemental Indenture") (Section 2.01). The Indenture does not
limit the aggregate principal amount of Junior Subordinated
Debentures which may be issued thereunder. The Company's Second
Restated Articles of Incorporation, as amended (the "Articles"),
limit the amount of unsecured debt that the Company may issue to
the equivalent of 30% of the total of all secured indebtedness
and total equity. At December 31, 1994, approximately $871
million of unsecured debt was outstanding and, approximately $1.2
billion of additional unsecured debt could have been issued under
this provision. The Indenture does not contain any provisions
that would limit the ability of the Company to incur indebtedness
or that afford holders of Debentures protection in the event of
a highly leveraged or similar transaction involving the Company
or in the event of a change of control.
The Junior Subordinated Debentures will be transferable
or exchangeable at the agency of the Company in The City of New
York (which, unless changed, shall be a corporate trust office
or agency of the Trustee). The Junior Subordinated Debentures
may be transferred or exchanged without service charge, other
than any tax or governmental charge imposed in connection
therewith. (Section 2.05)
Optional Redemption
The Debentures will not be subject to any mandatory
redemption, sinking fund or other obligation of the Company to
amortize, redeem or retire the Debentures, and will not be
redeemable prior to May 31, 1997. After such date, the Company
shall have the right to redeem the Debentures, in whole or in
part, at any time and from time to time, upon not less than 30
nor more than 60 days' notice, at a redemption price of 100% of
the principal amount of the Debentures redeemed, together in each
case with accrued and unpaid interest to the redemption date.
<PAGE>
Any Debentures to be redeemed in part will be redeemed by lot or
by any other method utilized by the Trustee. (Section 2.01 of
the First Supplemental Indenture)
In the event of any redemption in part, the Company
shall not be required to (i) issue, register the transfer of or
exchange any Junior Subordinated Debenture during a period
beginning at the opening of business 15 days before any selection
for redemption of such Debentures and ending at the close of
business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all holders of Junior
Subordinated Debentures to be redeemed and (ii) register the
transfer of or exchange any Debentures so selected for
redemption, in whole or in part, except the unredeemed portion
of any Junior Subordinated Debenture being redeemed in part.
(Section 2.05)
Interest
The Debentures will mature on May ___, 2025 and will
bear interest at an annual rate of _____% from and including the
first day following the Expiration Date Interest will be payable
quarterly in arrears on February 15, May 15, August 15 and
November 15 of each year, (each, an "Interest Payment Date")
commencing August 15, 1995, provided that, so long as the Company
shall not be in default in the payment of interest on the
Debentures, the Company shall have the right, upon prior notice
by public announcement given in accordance with NYSE rules at any
time during the term of the Debentures, to extend the interest
payment period from time to time for a period not exceeding 20
consecutive calendar quarters, (each such extended period, an
"Extension Period"). Interest will continue to accrue on the
Debentures during an Extension Period and will compound
quarterly, at the rate specified for the Debentures. See "--
Option to Extend Interest Payment Period." Interest payable on
any Debenture that is punctually paid or duly provided for on
any Interest Payment Date shall be paid to the person in whose
name such Debenture is registered at the close of business on
February 1, May 1, August 1 or November 1, respectively,
preceding such Interest Payment Date (each, a "Record Date").
In addition, registered holders of the Debentures on
August 1, 1995 will be entitled to interest at a rate of 7.92%
per annum from and including May 6, 1995 to and including the
Expiration Date, in lieu of dividends accumulating after May 5,
1995 on their Series 1992 Preferred Stock accepted for exchange,
payable on August 15, 1995, which is the date of the first
interest payment on the Debentures. No extension of an interest
payment period described under "--Option to Extend Interest
Payment Period" below will be permitted with respect to such Pre-
Issuance Accrued Interest.
<PAGE>
The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months
and, for any period shorter than a full calendar month, on the
basis of the actual number of days elapsed in such period. In
the event that any date on which interest is payable on the
Debentures is not a Business Day (as defined below), then payment
of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if
such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such
date. A "Business Day" shall mean any day other than a day on
which banking institutions in The City of New York are authorized
to close. (Section 1.04 of the First Supplemental Indenture)
Payments in respect of the Junior Subordinated
Debentures will be made at the office or agency of the Company
maintained for that purpose in The City of New York (which,
unless changed, shall be a corporate trust office or agency of
the Trustee). However, at the option of the Company, payments
on the Junior Subordinated Debentures may be made (i) by checks
mailed by the Trustee to the holders entitled thereto at their
registered addresses as specified in the Register for the Junior
Subordinated Debentures or (ii) to a holder of $1,000,000 or more
in aggregate principal amount of the Junior Subordinated
Debentures who has delivered a written request to the Trustee at
least 14 days prior to the relevant Interest Payment Date
electing to have payments made by wire transfer to a designated
account in the United States, by wire transfer of immediately
available funds to such designated account; provided that, in
either case, the payment of principal with respect to any Junior
Subordinated Debenture will be made only upon surrender of such
Debenture to the Trustee. Interest payable on any Junior
Subordinated Debenture that is not punctually paid or duly
provided for on any Interest Payment Date will forthwith cease
to be payable to the person in whose name such Debenture is
registered on the relevant Record Date, and such defaulted
interest will instead be payable to the person in whose name such
Debenture is registered on the special record date determined in
accordance with the Indenture; provided, however, that interest
shall not be considered payable by the Company on any Interest
Payment Date falling within an Extension Period unless the
Company has elected to make a full or partial payment of interest
accrued on the Junior Subordinated Debentures on such Interest
Payment Date. (Section 2.03; Section 3.01 of First Supplemental
Indenture)<PAGE>
Option to Extend Interest Payment Period
So long as the Company shall not be in default in the
payment of interest on the Debentures, the Company shall have the
right, upon prior notice by public announcement given in
accordance with NYSE rules at any time during the term of the
Debentures, prior to an Interest Payment Date as provided below,
to extend the interest payment period from time to time to
another Interest Payment Date by one or more quarterly periods,
not to exceed 20 consecutive calendar quarters from the last
Interest Payment Date to which interest was paid in full. No
interest shall be due and payable during an Extension Period, but
on the Interest Payment Date occurring at the end of each
Extension Period the Company shall pay to the holders of record
on the Record Date for such Interest Payment Date (regardless of
who the holders of record may have been on other dates during the
Extension Period) all accrued and unpaid interest on the
Debentures, together with interest thereon. Interest will
continue to accrue on the Debentures during an Extension Period
and will compound quarterly, at the rate of interest specified
for the Debentures. Prior to the termination of any Extension
Period, the Company may pay all or any portion of the interest
accrued on the Debentures on any Interest Payment Date to holders
of record on the Record Date for such Interest Payment Date or
from time to time further extend the interest payment period,
provided that any such Extension Period, together with all such
previous and further extensions thereof, may not exceed 20
calendar quarters. If the Company shall elect to pay all of the
interest accrued on the Debentures on an Interest Payment Date
during an Extension Period, such Extension Period shall
automatically terminate on such Interest Payment Date. Upon the
termination of an Extension Period and the payment of all amounts
of interest then due, the Company may commence a new Extension
Period, subject to the above requirements. Consequently, there
could be multiple Extension Periods of varying lengths throughout
the term of the Debentures.
The Company believes that the extension of an interest
payment period on the Debentures is unlikely. See "--Certain
Covenants of the Company" below for a description of the
restrictions on the Company's right to declare or pay dividends
on, or redeem, purchase or acquire, any shares of the Company's
capital stock if the Company exercises its right to extend any
interest payment period. However, in the event the Company
determines to extend an interest payment period, or in the event
the Company thereafter extends an Extension Period or prepays
interest accrued during an Extension Period as described above,
the market price of the Debentures is likely to be adversely
affected. In addition, as a result of such rights, the market
price of the Debentures may be more volatile than other debt <PAGE>
instruments with original issue discount that do not have such
rights. A holder that disposes of Debentures during an Extension
Period, therefore, may not receive the same return on investment
as a holder that continues to hold Debentures. (Section 3.01 of
the First Supplemental Indenture)
The Company shall give holders of the Debentures prior
notice of (i) the Company's election to initiate an Extension
Period and the duration thereof, (ii) the Company's election to
extend any Extension Period beyond the Interest Payment Date on
which such Extension Period is then scheduled to terminate and
the duration of such extension and (iii) the Company's election
to make a full or partial payment of interest accrued on the
Debentures on any Interest Payment Date during any Extension
Period and the amount of such payment. In no event shall such
notice be given less than five Business Days prior to the
February 1, May 1, August 1 or November 1 next preceding the
applicable Interest Payment Date. (Section 3.02 of First
Supplemental Indenture)
Subordination
The Indenture provides that the Junior Subordinated
Debentures are subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness (as defined
below) of the Company as provided in the Indenture. No payment
of principal of (including redemption and sinking fund payments),
or premium, if any, or interest on, the Junior Subordinated
Debentures may be made if any Senior Indebtedness is not paid
when due, any applicable grace period with respect to such
default has ended and such default has not been cured or waived,
or if the maturity of any Senior Indebtedness has been
accelerated because of a default. Upon payment by the Company
or any distribution of assets of the Company to creditors upon
any dissolution, winding-up, liquidation or reorganization,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become
due on all Senior Indebtedness must be paid in full before the
holders of the Junior Subordinated Debentures are entitled to
receive or retain any payment. The rights of the holders of the
Junior Subordinated Debentures will be subrogated to the rights
of the holders of Senior Indebtedness to receive payments or
distributions applicable to Senior Indebtedness until all amounts
owing on the Junior Subordinated Debentures are paid in full.
(Sections 14.01 to 14.04)
The term "Senior Indebtedness" shall mean the principal
of and premium, if any, and interest on and any other payment due
pursuant to any of the following, whether outstanding at the date
of execution of the Indenture or thereafter incurred, created or
assumed:
<PAGE>
(a) all indebtedness of the Company evidenced by
notes, debentures, bonds or other securities sold by the Company
for money;
(b) all indebtedness of others of the kinds described
in the preceding clause (a) assumed by or guaranteed in any
manner by the Company or in effect guaranteed by the Company
through an agreement to purchase, contingent or otherwise; and
(c) all renewals, extensions or refundings of
indebtedness of the kinds described in either of the preceding
clauses (a) and (b);
unless, in the case of any particular indebtedness, renewal,
extension or refunding, the instrument creating or evidencing the
same or the assumption or guarantee of the same expressly
provides that such indebtedness, renewal, extension or refunding
is not superior in right of payment to or is pari passu with the
Debentures. Such Senior Indebtedness shall continue to be Senior
Indebtedness and entitled to the benefits of the subordination
provisions contained in the Indenture irrespective of any
amendment, modification or waiver of any term of such Senior
Indebtedness. (Section 1.01)
The Indenture does not limit the aggregate amount of
Senior Indebtedness which may be issued. As of December 31,
1994, Senior Indebtedness of the Company aggregated approximately
$3.7 billion.
As the Junior Subordinated Debentures will be issued
by the Company, the Junior Subordinated Debentures effectively
will be subordinate to all obligations of the Company's
subsidiaries, and the rights of the Company's creditors,
including holders of Junior Subordinated Debentures, to
participate in the assets of such subsidiaries upon liquidation
or reorganization will be junior to the rights of the holders of
all preferred stock, indebtedness and other liabilities of such
subsidiaries, which may include trade payables, obligations to
banks under credit facilities, guarantees, pledges, support
arrangements, bonds, capital leases, notes and other obligations.
With respect to Pacific Telecom, the rights of the Company's
creditors, including holders of Junior Subordinated Debentures,
will also be limited to the Company's ownership interest in
Pacific Telecom, which is currently 86.6%. Reference is made to
the Incorporated Documents for information concerning a proposed
merger transaction that would increase the Company's ownership
interest in Pacific Telecom to 100%.
<PAGE>
Certain Covenants of the Company
If there shall have occurred any event that would, with
the giving of notice or the passage of time, or both, constitute
an Event of Default under the Indenture, as described under
"--Events of Default" below, or the Company exercises its option
to extend the interest payment period for an Extension Period as
described under "--Option to Extend Interest Payment Period"
above, the Company will not, until all defaulted interest on the
Junior Subordinated Debentures and all interest accrued on the
Junior Subordinated Debentures during an Extension Period and all
principal and premium, if any, then due and payable on the Junior
Subordinated Debentures shall have been paid in full,
(i) declare, set aside or pay any dividend or distribution on any
capital stock of the Company, including the Series 1992 Preferred
Stock and the Common Stock of the Company, except for dividends
or distributions in shares of its capital stock or in rights to
acquire shares of its capital stock, or (ii) repurchase, redeem
or otherwise acquire, or make any sinking fund payment for the
purchase or redemption of, any shares of its capital stock
(except by conversion into or exchange for shares of its capital
stock and except for a redemption, purchase or other acquisition
of shares of its capital stock made for the purpose of an
employee incentive plan or benefit plan of the Company or any of
its subsidiaries and except for mandatory redemption or sinking
fund payments with respect to any series of preferred stock of
the Company that are subject to mandatory redemption or sinking
fund requirements, provided that the aggregate stated value of
all such series outstanding at the time of any such payment does
not exceed five percent of the aggregate of (1) the total
principal amount of all bonds or other securities representing
secured indebtedness issued or assumed by the Company and then
outstanding and (2) the capital and surplus of the Company to be
stated on the books of account of the Company after giving effect
to such payment); provided, however, that any moneys deposited
in any sinking fund and not in violation of this provision may
thereafter be applied to the purchase or redemption of such
preferred stock in accordance with the terms of such sinking fund
without regard to the restrictions contained in this provision.
(Section 4.06) As of December 31, 1994, the aggregate stated
value of such series of the Company's preferred stock outstanding
was approximately $219 million, which represented approximately
3.2 percent of the aggregate of clauses (1) and (2) above at such
date.
Payment and Paying Agents
The Company will act as Paying Agent with respect to
the Junior Subordinated Debentures. The Company may at any time
designate additional Paying Agents or rescind the designation of
any Paying Agents or approve a change in the office through which
<PAGE>
any Paying Agent acts, except that the Company will be required
to maintain a Paying Agent in each Place of Payment for each
series of the respective Junior Subordinated Debentures.
(Sections 4.02 and 4.03)
All moneys paid by the Company to a Paying Agent for
the payment of the principal of or premium, if any, or interest
on any Junior Subordinated Debenture of any series that remain
unclaimed at the end of two years after such principal, premium,
if any, or interest shall have become due and payable will be
repaid to the Company and the holder of such Junior Subordinated
Debenture will thereafter look only to the Company for payment
thereof. (Section 11.06)
Agreed Tax Treatment
The Indenture provides that each holder of a Junior
Subordinated Debenture, each person that acquires a beneficial
ownership interest in a Junior Subordinated Debenture and the
Company agree that for United States federal, state and local tax
purposes it is intended that such Debenture constitute
indebtedness. (Section 13.12)
Modification of the Indenture
The Indenture contains provisions permitting the
Company and the Trustee, with the consent of the holders of not
less than a majority in principal amount of the Junior
Subordinated Debentures of each series which are affected by the
modification, to modify the Indenture or any supplemental
indenture affecting that series or the rights of the holders of
that series of Junior Subordinated Debentures; provided, that no
such modification may, without the consent of the holder of each
outstanding Junior Subordinated Debenture affected thereby,
(i) extend the fixed maturity of any Junior Subordinated
Debentures of any series, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption
thereof or (ii) reduce the percentage of Junior Subordinated
Debentures, the holders of which are required to consent to any
such supplemental indenture. (Section 9.02)
In addition, the Company and the Trustee may execute,
without the consent of any holder of Debentures, any supplemental
indenture for certain other usual purposes, including the
creation of any new series of Junior Subordinated Debentures.
(Sections 2.01, 9.01 and 10.01)
<PAGE>
Events of Default
The Indenture provides that any one or more of the
following described events, which has occurred and is continuing,
constitutes an "Event of Default" with respect to each series of
Junior Subordinated Debentures:
(a) failure for 10 days to pay interest on the Junior
Subordinated Debentures of that series when due; or
(b) failure to pay principal of or premium, if any,
on the Junior Subordinated Debentures of that series when due
whether at maturity, upon redemption, by declaration or
otherwise, or to make any sinking or analogous fund payment
established with respect to that series; or
(c) failure to observe or perform any other covenant
(other than those specifically relating to one or more other
series) contained in the Indenture for 90 days after notice; or
(d) certain events of bankruptcy, insolvency or
reorganization of the Company. (Section 6.01)
The holders of a majority in aggregate outstanding
principal amount of any series of the Junior Subordinated
Debentures have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the
Trustee for that series. (Section 6.06) The Trustee or the
holders of not less than 25% in aggregate outstanding principal
amount of any particular series of the Junior Subordinated
Debentures may declare the principal due and payable immediately
upon an Event of Default with respect to such series, but the
holders of a majority in aggregate outstanding principal amount
of such series may annul such declaration and waive such Event
of Default if it has been cured and a sum sufficient to pay all
matured installments of interest and principal and any premium
has been deposited with the Trustee. (Sections 6.01 and 6.06)
The holders of a majority in aggregate outstanding
principal amount of all series of the Junior Subordinated
Debentures affected thereby may, on behalf of the holders of all
the Junior Subordinated Debentures of such series, waive any past
default, except a default in the payment of principal, premium,
if any, or interest. (Section 6.06.) The Company is required
to file annually with the Trustee a certificate as to whether or
not the Company is in compliance with all the conditions and
covenants under the Indenture. (Section 5.03(d))
<PAGE>
Consolidation, Merger and Sale
The Indenture does not contain any covenant which
restricts the Company's ability to merge or consolidate with or
into any other corporation, sell or convey all or substantially
all of its assets to any person, firm or corporation or otherwise
engage in restructuring transactions. (Section 10.01)
Defeasance and Discharge
Under the terms of the Indenture, the Company will be
discharged from any and all obligations under the Indenture in
respect of the Junior Subordinated Debentures of any series
(except in each case for certain obligations to register the
transfer or exchange of Junior Subordinated Debentures, replace
stolen, lost or mutilated Junior Subordinated Debentures,
maintain paying agencies and hold moneys for payment in trust)
if the Company deposits with the Trustee, in trust, moneys or
Government Obligations, in an amount sufficient to pay all the
principal of, and interest on, the Junior Subordinated Debentures
of such series on the dates such payments are due in accordance
with the terms of such Junior Subordinated Debentures and, if,
among other things, such Junior Subordinated Debentures are not
due and payable, or are to be called for redemption, within one
year, the Company delivers to the Trustee an Opinion of Counsel
to the effect that the holders of Junior Subordinated Debentures
of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and
discharge and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have
been the case if such deposit and discharge had not occurred.
In addition to discharging certain obligations under the
Indenture as stated above, if the Company delivers to the Trustee
an Opinion of Counsel (in lieu of the Opinion of Counsel referred
to above) to the effect that (a) the Company has received from,
or there has been published by, the Internal Revenue Service a
ruling or (b) since the date of the Indenture there has been a
change in applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall
confirm that, the holders of Junior Subordinated Debentures of
such series will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same
amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had
not occurred, and (c) the trust resulting from the defeasance is
a valid trust and will not constitute a regulated investment
company under the Investment Company Act of 1940, as amended,
then, in such event, the Company will be deemed to have paid and
discharged the entire indebtedness on the Junior Subordinated
Debentures. In the event of any such defeasance and discharge
<PAGE>
of Junior Subordinated Debentures of such series, holders of
Junior Subordinated Debentures of such series would be able to
look only to such trust fund for payment of principal of (and
premium, if any) and interest, if any, on the Junior Subordinated
Debentures of such series. (Sections 11.01, 11.02 and 11.03)
Governing Law
The Indenture and the Junior Subordinated Debentures
will be governed by, and construed in accordance with, the laws
of the State of New York. (Section 13.04)
Information Concerning the Trustee
The Trustee, prior to default, undertakes to perform
only such duties as are specifically set forth in the Indenture
and, after default, shall exercise the same degree of care as a
prudent individual would exercise in the conduct of his or her
own affairs. (Section 7.01) Subject to such provision, the
Trustee is under no obligation to exercise any of the powers
vested in it by the Indenture at the request of any holder of
Junior Subordinated Debentures, unless offered reasonable
indemnity by such holder against the costs, expenses and
liabilities which might be incurred thereby. (Section 7.02) The
Trustee is not required to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of its duties if the Trustee reasonably believes that repayment
or adequate indemnity is not reasonably assured to it.
(Section 7.01)
The Bank of New York serves as trustee and agent under
agreements involving the Company and its affiliates.
Miscellaneous
The Company will have the right at all times to assign
any of its rights or obligations under the Indenture to a direct
or indirect wholly-owned subsidiary of the Company; provided
that, in the event of any such assignment, the Company will
remain liable for all such obligations. Subject to the
foregoing, the Indenture will be binding upon and inure to the
benefit of the parties thereto and their respective successors
and assigns. The Indenture provides that it may not otherwise
be assigned by the parties thereto. (Section 13.11)
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists
of three classes of preferred stock ("Preferred Stock"): 126,533
shares of 5% Preferred Stock of the stated value of $100 per
share ("5% Preferred Stock"), 3,500,000 shares of Serial <PAGE>
Preferred Stock of the stated value of $100 per share ("Serial
Preferred Stock"), 16,000,000 shares of No Par Serial Preferred
Stock; and 750,000,000 shares of Common Stock ("Common Stock").
Following is a brief summary of the relative rights and
preferences of the various classes of the Company's capital
stock, which does not purport to be complete. For a complete
description of the relative rights and preferences of the various
classes of the Company's capital stock, reference is made to
Article III of the Articles, a copy of which is an exhibit to the
Registration Statement.
General. The Company's Articles provide that the
Serial Preferred Stock and the No Par Serial Preferred Stock each
may be issued in one or more series and that all such series of
each such class, respectively, shall constitute one and the same
class of stock, shall be of equal rank and shall be identical in
all respects except as to the designation thereof and except that
each series may vary, as fixed and determined by the Company's
Board of Directors at the time of its creation and expressed in
a resolution, as to (a) the dividend rate or rates, which may be
subject to adjustment, (b) the date or dates from which dividends
shall be cumulative, (c) the dividend payment dates, (d) the
amount to be paid upon redemption, if redeemable, or in the event
of voluntary liquidation, dissolution, or winding up of the
Company, (e) the rights of conversion, if any, into shares of
Common Stock and the terms and conditions of any such conversion,
(f) provisions, if any, for the redemption or purchase of shares,
which may be at the option of the Company or upon the happening
of a specified event or events, including the times, prices or
rates, which may be subject to adjustment, and (g) with respect
to the No Par Serial Preferred Stock, voting rights.
Dividends. The No Par Serial Preferred Stock, the 5%
Preferred Stock and the Serial Preferred Stock are entitled, pari
passu with each other and in preference to the Common Stock, to
accumulate dividends at the rate or rates, which may be subject
to adjustment, determined in accordance with the Articles at the
time of creation of each series. Subject to the prior rights of
the several Preferred Stocks (and to the rights of any other
classes of stock hereafter authorized), the Common Stock alone
is entitled to all dividends other than those payable in respect
of the several Preferred Stocks.
For certain restrictions on the payment of dividends,
reference is made to the notes to the audited consolidated
financial statements included in the Company's Annual Report on
Form 10-K incorporated by reference herein.
Liquidation Rights. Upon involuntary liquidation of
the Company, each class of Preferred Stock is entitled, pari <PAGE>
passu with each other class and in preference to the Common
Stock, to the stated value thereof or, in the case of the No Par
Serial Preferred Stock, the amount fixed as the consideration
therefor in the resolution creating the series of No Par Serial
Preferred Stock, in each case plus accrued dividends to the date
of distribution.
Upon voluntary liquidation, each outstanding series of
No Par Serial Preferred Stock (other than the $7.70 Series and
the $7.48 Series which are entitled to $100 per share and the
Series 1992 Preferred Stock which is entitled to $25 per share)
and Serial Preferred Stock (other than the 7.00%, 6.00%, 5.00%
and 5.40% Series which are entitled to $100 per share) is
entitled to an amount equal to the then current redemption price
for such series and the 5% Preferred Stock is entitled to $110
per share, in each case plus accrued dividends to the date of
distribution, pari passu with each other and in preference to the
Common Stock.
Subject to the rights of the several Preferred Stocks
(and to the rights of any other class of stock hereafter
authorized), the Common Stock alone is entitled to all amounts
available for distribution upon liquidation of the Company other
than those to be paid on the Preferred Stocks.
Voting Rights. The holders of the 5% Preferred Stock,
Serial Preferred Stock and Common Stock are entitled to one vote
for each share held on matters presented to shareholders
generally. The holders of the No Par Serial Preferred Stock are
entitled to such voting rights as are set forth in the Articles
upon creation of each series. Certain series of No Par Serial
Preferred Stock may not be entitled to vote on matters presented
to shareholders generally, including the election of directors.
During any periods when dividends on the 5% Preferred Stock or
any series of Serial Preferred Stock or No Par Serial Preferred
Stock are in default in an amount equal to four full quarterly
payments or more per share, the holders of the Preferred Stock,
voting as one class separately from the holders of the Common
Stock, have the right to elect a majority of the full Board of
Directors. No Preferred Stock dividends are in arrears at the
date of this Prospectus.
Holders of the outstanding shares of any class of
Preferred Stock are entitled to vote as a class on certain
matters, such as changes in the aggregate number of authorized
shares of the class and certain changes in the designations,
preferences, limitations or relative rights of the class. The
vote of holders of at least two-thirds of each class of Preferred
Stock is required prior to creating any new stock ranking prior
thereto or altering its express terms to its prejudice. The vote
of holders of a majority of all classes of Preferred Stock, <PAGE>
voting as one class separately from the holders of the Common
Stock, is required prior to merger or consolidation and prior to
making certain unsecured borrowings and certain issuances of 5%
Preferred Stock, Serial Preferred Stock and No Par Serial
Preferred Stock.
The shares of the Company do not have cumulative voting
rights, which means that the holders of more than 50% of all
outstanding shares entitled to vote for the election of directors
can elect 100% of the directors if they choose to do so, and, in
such event, the holders of the remaining less than 50% of the
shares will not be able to elect any person or persons to the
Board of Directors.
The holders of the Company's shares have no preemptive
rights.
Voting on Certain Transactions. Under the Articles,
certain business transactions with a Related Person (as defined
below), including a merger, consolidation or plan of exchange of
the Company or its subsidiaries, or certain recapitalizations,
or the sale or exchange of a substantial part of the assets of
the Company or its subsidiaries, or any issuance of voting
securities of the Company will require in addition to existing
voting requirements, approval by at least 80% of the outstanding
Voting Stock (for purposes of this provision, Voting Stock is
defined as all of the outstanding shares of capital stock of the
Company entitled to vote generally in the election of directors,
considered as one class). A Related Person includes any
shareholder that is, directly or indirectly, the beneficial owner
of 20% or more of the Voting Stock. The 80% voting requirement
will not apply in the following instances:
(a) The Related Person has no direct or indirect
interest in the proposed transaction except as a shareholder;
(b) The shareholders, other than the Related Person,
will receive consideration for their Voting Stock having a fair
market value per share at least equal to, or in the opinion of
a majority of the Continuing Directors (as defined in the
Articles) at least equivalent to, the highest per-share price
paid by the Related Person for an Voting Stock acquired by it;
(c) Two-thirds of the Continuing Directors expressly
approved in advance the acquisition of the Voting Stock that
caused such Related Person to become a Related Person; or
(d) The transaction is approved by two-thirds of the
Continuing Directors.
<PAGE>
This provision of the Articles may be amended or
replaced only upon the approval of the holders of at least 80%
of the Voting Stock.
Classification of Board; Removal. The Board of
Directors of the Company is divided into three classes,
designated Class I, Class II and Class III, each class as nearly
equal in number as possible. The directors in each class serve
staggered three-year terms, such that one-third (or as close
thereto as possible) of the Board of Directors is elected each
year. A vote of at least 80% of the votes entitled to be cast
at an election of the directors is required to remove a director
without cause, and at least two-thirds of the votes entitled to
be cast at an election of directors are required to remove a
director for cause. Any amendment of this provision requires the
approval of at least 80% of the votes entitled to be cast at an
election of directors.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a general summary of the material
United States federal income tax considerations relevant to an
exchange of Series 1992 Preferred Stock for Debentures and the
ownership and disposition of Debentures by persons acquiring
Debentures pursuant to the Exchange Offer. To the extent it
relates to matters of law or legal conclusion, this summary
constitutes the opinion of Stoel Rives Boley Jones & Grey,
counsel to the Company. This summary is based on the Internal
Revenue Code of 1986, as amended (the "Code"), Treasury
Regulations (including Proposed Regulations and Temporary
Regulations) promulgated thereunder, Internal Revenue Service
("IRS") rulings, official pronouncements and judicial decisions,
all as in effect on the date hereof and all of which are subject
to change, possibly with retroactive effect, or different
interpretations. This summary is applicable only to holders of
Series 1992 Preferred Stock who are United States persons for
United States federal income tax purposes, who hold their Series
1992 Preferred Stock as a capital asset and who will hold
Debentures as capital assets ("Investors"). For a discussion of
certain material United States federal income and estate tax
considerations that may be relevant to non-United States persons,
see "Certain Federal Tax Considerations for Non-United States
Persons."
This summary does not discuss all the tax consequences
that may be relevant to a particular Investor in light of the
Investor's particular circumstances and it is not intended to be
applicable in all respects to all categories of holders, some of
whom--such as insurance companies, tax-exempt persons, financial
institutions, regulated investment companies, dealers in
securities or currencies, persons that hold Series 1992 Preferred
<PAGE>
Stock or the Debentures received in the exchange as a position
in a "straddle," as part of a "synthetic security," "hedge,"
"conversion transaction" or other integrated investment or
persons whose functional currency is other than United States
dollars--may be subject to different rules not discussed below.
In addition, this summary does not address any state, local or
foreign tax considerations that may be relevant to an Investor's
decision to exchange Series 1992 Preferred Stock for Debentures
pursuant to the Exchange Offer.
ALL SERIES 1992 PREFERRED STOCK HOLDERS ARE ADVISED TO
CONSULT THEIR OWN TAX ADVISORS REGARDING THE FEDERAL, STATE,
LOCAL AND FOREIGN TAX CONSEQUENCES OF THE EXCHANGE OF SERIES 1992
PREFERRED STOCK FOR DEBENTURES AND OF THE OWNERSHIP AND
DISPOSITION OF DEBENTURES RECEIVED IN THE EXCHANGE IN LIGHT OF
THEIR OWN PARTICULAR CIRCUMSTANCES.
Exchange of Series 1992 Preferred Stock for Debentures
The exchange of Series 1992 Preferred Stock for
Debentures pursuant to the Exchange Offer will be a taxable event
for the exchanging Investors. Whether the exchange will be
treated as a transaction in which capital gain or loss is
recognized or as a distribution taxable as a dividend with
respect to a particular Investor will depend on such Investor's
particular facts and circumstances. If, with respect to a
particular Investor, the exchange of Series 1992 Preferred Stock
for Debentures satisfies one of the tests set forth in Section
302(b) of the Code described below, it will be treated as a
transaction in which capital gain or loss is recognized. In that
case, the difference between the fair market value of the
Debentures received in the exchange and such Investor's adjusted
tax basis in the Series 1992 Preferred Stock surrendered therefor
generally will be capital gain or loss. Such capital gain or
loss will be long-term capital gain or loss if, at the time of
the exchange, the Investor has held the Series 1992 Preferred
Stock surrendered in the exchange for more than one year. The
Investor's tax basis in the Debentures received in the exchange
will equal the fair market value of the Debentures at the time
of the exchange, and the holding period for such Debentures will
begin on the day after the day on which the Investor acquires the
Debentures.
Pursuant to Section 302(b) of the Code, a particular
Investor's exchange of Series 1992 Preferred Stock for Debentures
will be treated as a transaction in which capital gain or loss
is recognized if, after giving effect to the constructive
ownership rules of Section 318 of the Code, the exchange (i)
represents a "complete redemption" of such Investor's stock
interest in the Company, (ii) is "substantially disproportionate"
with respect to such Investor or (iii) is "not essentially <PAGE>
equivalent to a dividend" with respect to such Investor. A
"complete redemption" of the Investor's stock interest will occur
if, pursuant to the Exchange Offer, the Company acquires all of
such Investor's Series 1992 Preferred Stock and such Investor
does not own directly or constructively any other stock of the
Company (or, if such Investor does constructively own other stock
of the Company, such Investor waives constructive ownership under
procedures established in Section 302(c) of the Code). An
exchange will be "not essentially equivalent to a dividend" as
to a particular Investor if it results in a "meaningful
reduction" in such Investor's interest in the Company (after
application of the constructive ownership rules of Section 318
of the Code). In the case of an Investor who directly or
constructively owns not more than one percent of the Series 1992
Preferred Stock outstanding and not more than one percent of all
other classes of outstanding stock of the Company, an exchange
of all of such Investor's Series 1992 Preferred Stock, actually
and constructively owned, for Debentures pursuant to the Exchange
Offer should ordinarily constitute a "meaningful reduction" of
such Investor's interest in the Company and, therefore, should
be "not essentially equivalent to a dividend." The rules for
this test, however, as well as those governing "substantially
disproportionate" exchanges, are complex. Investors who,
directly or constructively, own stock in the Company that will
not be exchanged for Debentures should consult their tax advisors
for an explanation of such rules as they relate to their own
circumstances. Section 318 of the Code sets forth rules under
which a person is considered to constructively own stock owned
by certain other persons and entities with which such person has
a family or close business relationship. Investors should
consult their tax advisors to determine whether they
constructively own stock in the Company. No assurance can be
given that an Investor's exchange of Series 1992 Preferred Stock
for Debentures will satisfy any of the tests set forth in Section
302(b) of the Code. INVESTORS SHOULD CONSULT THEIR OWN TAX
ADVISORS, BEFORE THE EXCHANGE, AS TO THEIR ABILITY TO SATISFY ANY
OF THE FOREGOING TESTS IN LIGHT OF THEIR OWN PARTICULAR
CIRCUMSTANCES.
If a particular Investor's exchange of Series 1992
Preferred Stock does not satisfy one of the tests of Section
302(b), discussed above, it will be treated as a distribution to
which Section 301 of the Code applies. Such Investor (i) will
not recognize any loss on the exchange and (ii) generally will
recognize ordinary income in an amount equal to the fair market
value of the Debentures received (without regard to such
Investor's basis in the Series 1992 Preferred Stock surrendered
in the exchange), to the extent of such Investor's proportionate
share of the Company's current or accumulated earnings and
profits. The Company believes that it has current or accumulated
earnings and profits in an amount that should be sufficient to
characterize as a dividend the fair market value of all of the
<PAGE>
Debentures received from all Investors for whom the exchange did
not result in a capital gain or loss. The amount treated as a
dividend will qualify for the 70% dividends received deduction
for corporate shareholders, subject to the minimum holding period
requirement under Section 246(c) of the Code and other applicable
requirements. Section 1059 of the Code, however, may require a
corporate shareholder to reduce its tax basis (and possibly to
recognize gain) in any stock of the Company held by it by the
nontaxed portion of any such dividend.
An Investor whose receipt of Debentures is treated as
a distribution taxable as a dividend will generally have a tax
basis in the Debentures equal to the fair market value of such
Debentures at the time of the exchange (without regard to such
Investor's basis in the Series 1992 Preferred Stock surrendered
in the exchange). The Investor's adjusted tax basis in its
Series 1992 Preferred Stock surrendered in the exchange will be
transferred to any remaining Series 1992 Preferred Stock held by
such Investor or, if such Investor does not retain any Series
1992 Preferred Stock, to other stock in the Company owned by such
Investor. If the Investor does not own any stock in the Company
following the exchange, it is possible that the Investor's basis
in the stock surrendered in the exchange would be transferred to
stock attributed to such Investor under Section 318 of the Code.
The holding period for the Debentures will begin on the day after
the day on which the Debentures are acquired by the exchanging
Investor.
Interest and Original Issue Discount on Debentures
The following discussion addresses only the tax
treatment of holders of Debentures that acquired the Debentures
pursuant to the Exchange Offer and, thus, does not address the
tax treatment of holders of Debentures who purchase the
Debentures in the secondary market. In accordance with Sections
1271 through 1275 of the Code and the final Treasury Regulations
promulgated thereunder (the "OID Regulations"), a debt instrument
bears original issue discount ("OID") if its "stated redemption
price at maturity" exceeds its "issue price" by more than a de
minimis amount. Assuming that the Debentures are listed on the
NYSE , the issue price of the Debentures will be their fair
market value on the Issue Date. The Company will not elect to
exclude Pre-Issuance Accrued Interest from the issue price. The
stated redemption price at maturity of a debt instrument
generally includes all amounts payable other than "qualified
stated interest" (i.e., payments that are unconditionally
required to be paid at least annually at a single fixed rate over
the term of the instrument). Because of the Company's option to
extend the interest payment period, none of the amounts payable
on the Debentures will be qualified stated interest. Thus, the
Debentures will have OID in an amount equal to the excess of all <PAGE>
payments required to be made under the Debentures over their
issue price. That amount of OID should approximately equal the
aggregate amounts of stated interest paid or accrued on the
Debentures. However, if the issue price of the Debentures is
less than their stated principal amount, the difference will be
treated as additional OID to be accrued over the term of the
Debentures (notwithstanding that such difference might otherwise
be considered "de minimis") and a holder of Debentures will
include in income an amount exceeding the stated interest
received or accrued on the Debentures. If the issue price of the
Debentures is greater than their stated principal amount, the
amount of OID to be included in income will be less than the
stated interest received or accrued on the Debentures.
A holder of a Debenture will be required to include OID
in income, based on a constant yield method, regardless of such
holder's regular method of accounting. As a result, during any
period in which the Company has elected to extend the interest
payment period, a holder generally would be required to include
OID in income but would not receive cash from the Company
sufficient to pay tax thereon. As explained above, it is also
possible that the OID included in income during other periods
will not match the interest payments received from the Company.
A holder of Debentures will not recognize any income upon the
receipt of a payment of stated interest on the Debentures;
instead, the holder will recognize income as OID accrues. A
holder's basis in the Debentures will be increased by the amount
of OID includible in income and decreased by all payments made
on the Debentures, however denominated.
The amount of OID includible in income is the sum of
the daily portions of OID with respect to a Debenture for each
day during the taxable year during which the holder held such
Debenture. The daily portion of OID on a Debenture is determined
by allocating to each day in any "accrual period" a ratable
portion of the OID allocable to such accrual period. The term
"accrual period" means a period of any length selected by the
holder, provided that each accrual period must be no longer than
one year and each scheduled payment date of principal or interest
on a Debenture must occur either on the final day of an accrual
period or the first day of an accrual period. The amount of OID
allocable to an accrual period is the product of the "adjusted
issue price" at the beginning of the accrual period and the
"yield to maturity" of the Debenture, adjusted to reflect the
length of the accrual period. For the first accrual period, the
adjusted issue price of the Debentures will be their issue price.
Thereafter, the adjusted issue price of a Debenture generally
will be its issue price increased by any OID previously
includible in the gross income of the holder and decreased by
any payment previously made on the Debenture.
<PAGE>
Under the OID Regulations, in computing the yield to
maturity of an instrument, the issuer is deemed to elect to
exercise any option available to it under the instrument if doing
so would minimize the yield on the instrument. If the issuer
does not exercise such option, then, solely for purposes of the
accrual of OID, the yield and maturity of the instrument are
redetermined by treating the instrument as reissued for an amount
equal to its adjusted issue price. Because the issue price of
the Debentures may be different from their stated principal
amount, it is possible that the yield to maturity would be lower
if the Company exercised its option to extend the interest
payment period than if it did not. If that were the case, then
it would be assumed, for purposes of calculating OID, that the
Company would exercise the option. If, on the other hand, the
exercise of the option would not decrease the yield to maturity,
it would be assumed that the Company would not exercise the
option. If there were a change in circumstances (i.e., the
Company acted contrary to the applicable assumption), the OID
Regulations would require that OID accrual be computed as if the
Debentures were reissued on the date of the change in
circumstances for an amount equal to their adjusted issue price
on that date.
The Company will provide each non-corporate holder of
Debentures with reports of the amount of OID includable in income
on Form 1099-OID.
Sale or Redemption of Debentures
Generally, a sale or redemption of Debentures will
result in taxable gain or loss equal to the difference between
the amount realized and the holder's tax basis in the Debentures.
Such gain or loss would be long-term capital gain or loss if the
Debentures were held for more than one year.
Backup Withholding
A holder of Series 1992 Preferred Stock or a Debenture
may be subject to backup withholding at a rate of 31% with
respect to dividends or interest (including OID) on, or the
proceeds of a sale, exchange, or redemption of, such Series 1992
Preferred Stock or Debenture, as the case may be, unless such
holder (i) is a corporation or comes within certain other exempt
categories and, when required, demonstrates this fact or (ii)
provides a taxpayer identification number, certifies as to no
loss of exemption from backup withholding, and otherwise complies
with applicable backup withholding rules.
<PAGE>
CERTAIN FEDERAL TAX CONSIDERATIONS
FOR NON-UNITED STATES PERSONS
The following is a general summary of the material
United States federal income and estate tax considerations
relevant to the exchange of Series 1992 Preferred Stock for
Debentures by non-United States persons and the ownership and
disposition of Debentures by non-United States persons acquiring
Debentures pursuant to the Exchange Offer. As used herein,
"non-United States person" means any person who, for United
States federal income tax purposes, is neither (i) a citizen or
resident of the United States, (ii) a corporation, partnership
or other entity created or organized in or under the laws of the
United States or any state or of any of the territories or
possessions of the United States, or (iii) a domestic trust or
estate. To the extent it relates to matters of law or legal
conclusion, this summary constitutes the opinion of Stoel Rives
Boley Jones & Grey, counsel to the Company. This summary is
based on the Code, Treasury Regulations (including Proposed
Regulations and Temporary Regulations) promulgated thereunder,
IRS rulings, official pronouncements and judicial decisions, all
as in effect on the date hereof and all of which are subject to
change, possibly with retroactive effect, or different
interpretations. This summary does not discuss all the tax
consequences that may be relevant to a particular holder that is
a non-United States person in light of the holder's particular
circumstances and it is not intended to be applicable in all
respects to all categories of non-United States persons, some of
whom--such as foreign governments and certain international
organizations--may be subject to special rules not discussed
below. In addition, this summary does not address any state,
local or foreign tax considerations that may be relevant to a
holder's decision to exchange Series 1992 Preferred Stock for
Debentures pursuant to the Exchange Offer. For a discussion of
certain United States federal income tax considerations, some of
which may also be relevant to non-United States persons, see
"Certain Federal Income Tax Considerations."
ALL SERIES 1992 PREFERRED STOCK HOLDERS THAT ARE NON-
UNITED STATES PERSONS ARE ADVISED TO CONSULT THEIR OWN TAX
ADVISORS REGARDING THE FEDERAL, STATE, LOCAL AND FOREIGN TAX
CONSEQUENCES OF THE EXCHANGE OF SERIES 1992 PREFERRED STOCK FOR
DEBENTURES AND THE OWNERSHIP AND DISPOSITION OF DEBENTURES
RECEIVED IN THE EXCHANGE IN LIGHT OF THEIR OWN PARTICULAR
CIRCUMSTANCES.
Exchange of Series 1992 Preferred Stock for Debentures
Subject to the discussion of backup withholding below,
if a holder that is a non-United States person proves, in a
manner and under arrangements satisfactory to the Company or <PAGE>
other withholding agent, that the exchange of Series 1992
Preferred Stock for Debentures by such holder qualifies under
Section 302(b) of the Code as a transaction in which gain or loss
is recognized, rather than as a distribution taxable as a
dividend (see "Certain Federal Income Tax Considerations--
Exchange of Series 1992 Preferred Stock for Debentures," above),
the Company or such withholding agent will not withhold United
States federal withholding tax on the issuance of Debentures to
such holder. The holder of such Series 1992 Preferred Stock
generally will not be subject to United States federal income tax
in respect of gain recognized on such exchange. However, such
a holder will be subject to United States federal income tax in
respect of such gain if no treaty exception is available and (i)
such gain is effectively connected with a trade or business
conducted by such non-United States person within the United
States (in which case the branch profits tax may also apply if
the holder is a foreign corporation), (ii) in the case of a non-
United States person that is an individual, such holder is
present in the United States for a period or periods aggregating
183 days or more in the taxable year of the exchange and certain
other conditions are satisfied or (iii) such holder owns,
directly or constructively, more than five percent of the Series
1992 Preferred Stock and the Company is or has been a "United
States real property holding corporation" for United States
federal income tax purposes within the five-year period ending
on the date of the exchange and certain other conditions are
satisfied.
If a holder that is a non-United States person who
exchanges Series 1992 Preferred Stock for Debentures does not
prove, in a manner satisfactory to the Company or other
withholding agent, that such exchange qualifies as a transaction
in which gain or loss is recognized, United States federal
withholding tax will be withheld from the gross proceeds to such
holder in an amount equal to 30% of such proceeds (including
Debentures that such holder would otherwise have received) unless
such holder is eligible for a reduced tax treaty rate (or an
exemption) with respect to dividend income and establishes that
it is subject to such reduced rate (or is exempt from such tax)
by providing the appropriate form, in which case the tax will be
withheld at the reduced rate (or will not be withheld, if
exempt). Except as may be otherwise provided in an applicable
income tax treaty, a holder that is a non-United States person,
whose receipt of Debentures is treated as a distribution taxable
as a dividend, will be taxed at ordinary federal income tax rates
on a net income basis if such dividend is effectively connected
with the conduct of a trade or business of such holder within
the United States (in which case the branch profits tax may also
apply if the holder is a foreign corporation) and will not be
subject to the withholding tax described in the preceding
sentence. A holder that is a non-United States person may be <PAGE>
eligible to obtain from the IRS a refund of tax withheld if such
holder meets one of the three tests of Section 302(b) described
above under "Certain Federal Income Tax Considerations--Exchange
of Series 1992 Preferred Stock for Debentures" or is otherwise
able to establish that no tax (or a reduced amount of tax) was
due.
Payments on Debentures
Subject to the discussion of backup withholding below,
payments on a Debenture by the Company or its agent (in its
capacity as such) to a beneficial owner that is a non-United
States person will not be subject to United States federal
withholding tax; provided that (a) such person does not actually
or constructively own 10% or more of the total combined voting
power of all classes of stock of the Company entitled to vote,
(b) such person is not a controlled foreign corporation that is
related to the Company actually or constructively through stock
ownership, (c) such person is not a bank that acquired its
Debenture in consideration of an extension of credit made
pursuant to a loan agreement entered into in the ordinary course
of business, and (d) either (i) the beneficial owner certifies
to the Company or its agent, under penalties of perjury, in a
suitable form that it is a not a United States person and
provides its name and address or (ii) a qualifying securities
clearing organization, bank or other financial institution that
holds customers securities in the ordinary course of its trade
or business and that holds the Debenture certifies to the Company
or its agent under penalties of perjury that such statement has
been received from the beneficial owner in a suitable form by it
or by a qualifying intermediary and furnishes the payor with a
copy thereof.
If a beneficial owner of a Debenture who is a non-
United States person is engaged in a trade or business within the
United States and interest (including OID) and premium, if any,
on the Debenture is effectively connected with the conduct of
such trade or business, such beneficial owner may be subject to
United States federal income tax on such interest (including OID)
and premium at ordinary federal income tax rates on a net basis
(in which case the branch profits tax may also apply if the
holder is a foreign corporation).
Sale or Exchange of Debentures
Subject to the discussion of backup withholding below,
any capital gain realized upon a sale or exchange of a Debenture
(including upon retirement of a Debenture) by a beneficial owner
who is a non-United States person ordinarily will not be subject
to United States federal income tax unless (i) such gain is
effectively connected with a trade or business conducted by such <PAGE>
non-United States person within the United States (in which case
the branch profits tax may also apply if the holder is a foreign
corporation) or (ii) in the case of a non-United States person
that is an individual, such holder is present in the United
States for a period or periods aggregating 183 days or more in
the taxable year of the sale or exchange and certain other
conditions are met.
Federal Estate Taxes
Debentures beneficially owned by an individual who at
the time of death is neither a citizen nor a resident of the
United States will not be subject to United States federal estate
tax as a result of such individual's death, provided that at the
time of death the income from the Debentures was not or would not
have been effectively connected with the conduct by such
individual of a trade or business within the United States and
that such individual could have qualified for the exemption from
United States federal withholding tax (without regard to the
certification requirements) on premium and interest that is
described above under "--Payments on Debentures."
Backup Withholding and Information Reporting
Information reporting on IRS Form 1099 and backup
withholding at a rate of 31% will not apply to payments of
principal, premium (if any) and interest (including original
issue discount) made by the Company or a paying agent to a non-
United States person on a Debenture if the certification
described in clause (d) under "--Payments on Debentures" above
is received, provided that the payor does not have actual
knowledge that the holder is a United States person. However,
interest (including original issue discount) on a Debenture owned
by a holder that is a non-United States person may be required
to be reported annually.
Payments of the proceeds from the sale by a holder that
is a non-United States person of a Debenture made to or through
a foreign office of a broker will not be subject to information
reporting or backup withholding, except that if the broker is a
United States person, a controlled foreign corporation for United
States tax purposes or a foreign person 50% or more of whose
gross income is effectively connected with a United States trade
or business for a specified three-year period, information
reporting may apply to such payments. Payments of the proceeds
from the sale of a Debenture to or through the United States
office of a broker is subject to information reporting and backup
withholding unless the holder certifies as to its non-United
States status or otherwise establishes an exemption from
information reporting and backup withholding.
<PAGE>
EXPERTS
The audited consolidated financial statements of the
Company and supplemental schedules incorporated by reference in
this Prospectus have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports included in or
incorporated by reference in the Company's Annual Report on Form
10-K incorporated by reference herein (which reports express an
unqualified opinion and include an explanatory paragraph relating
to changes adopted in accounting for income taxes and other
postretirement benefits), and have been so incorporated herein
in reliance upon such reports given upon the authority of that
firm as experts in accounting and auditing.
With respect to any unaudited interim financial
information that is incorporated herein by reference, Deloitte &
Touche LLP have applied limited procedures in accordance with
professional standards for a review of such information.
However, as stated in their reports included in any Quarterly
Reports on Form 10-Q incorporated by reference herein, they did
not audit and they do not express an opinion on that interim
financial information. Accordingly, the degree of reliance on
their reports on such information should be restricted in light
of the limited nature of the review procedures applied.
Deloitte & Touche LLP are not subject to the liability provisions
of Section 11 of the Securities Act for their reports on the
unaudited interim financial information because those reports are
not "reports" or a "part" of the Registration Statement to which
this Prospectus is a part prepared or certified by an accountant
within the meaning of Sections 7 and 11 of said Securities Act.
LEGAL OPINIONS
Certain legal matters in connection with the
Debentures, including the validity of the Indenture and the
Debentures, will be passed upon for the Company by Stoel Rives
Boley Jones & Grey, Portland, Oregon, and for the Dealer Managers
by Winthrop, Stimson, Putnam & Roberts, New York, New York.
Certain tax matters in connection with the Exchange Offer will
be passed upon for the Company by Stoel Rives Boley Jones & Grey.
John M. Schweitzer and John Detjens III, who are assistant
secretaries of PacifiCorp, are partners in the firm of Stoel
Rives Boley Jones & Grey.<PAGE>
Facsimile copies of the Letter of Transmittal will be
accepted. Letters of Transmittal, certificates representing
shares of Series 1992 Preferred Stock and any other required
documents should be sent by each holder of Series 1992 Preferred
Stock or such holder's broker, dealer, commercial bank, trust
company or other nominee to the Exchange Agent at one of the
addresses as set forth below:
The Exchange Agent is:
The Bank of New York
By Hand or Overnight Courier: By Mail:
The Bank of New York The Bank of New York
101 Barclay Street PO Box 11248
New York, NY 10286 Church Street Station
Attention: Tender and Exchange New York, NY 10286
Receive and Deliver Window, Attention: Tender and
Street Level Exchange
By Facsimile Transmission
(for Eligible Institutions only):
(212) 815-6213
Confirm Receipt of Notice of Guaranteed Delivery by Telephone:
(800) 507-9357
The Information Agent is:
GEORGESON
& COMPANY INC.
Wall Street Plaza
New York, NY 10005
Banks and Brokers call collect (212) 440-9800
Call Toll Free: (800) 223-2064
- -------------------------------------------------------------
Any questions or requests for assistance or additional copies
of this Prospectus and the Letter of Transmittal may be
directed to the Information Agent or the Exchange Agent at
the telephone numbers and locations set forth above. You
may also contact your broker, dealer, commercial bank or
trust company or other nominee for assistance concerning
the Exchange Offer.
- -------------------------------------------------------------
<PAGE>
The Dealer Managers for the Exchange Offer are:
Goldman, Sachs & Co. Salomon Brothers Inc
Liability Management Group Liability Management Group
85 Broad Street, 26th Floor 7 World Trade Center
New York, New York 10004 New York, New York 10048
(800) 828-3182 (Toll-Free) (800) 221-7190 (Toll-Free)
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
PacifiCorp's Second Restated Articles of Incorporation, as
amended ("Restated Articles"), and Bylaws, as amended ("Bylaws"),
require PacifiCorp to indemnify directors and officers to the
fullest extent not prohibited by law. The right to and amount
of indemnification will be ultimately subject to determination
by a court that indemnification in the circumstances presented
is consistent with public policy considerations and other
provisions of law. It is likely, however, that the Restated
Articles would require indemnification at least to the extent
that indemnification is authorized by the Oregon Business
Corporation Act ("OBCA"). The effect of the OBCA is summarized
as follows:
(a) The OBCA permits PacifiCorp to grant a right of
indemnification in respect of any pending, threatened or
completed action, suit or proceeding, other than an action by or
in the right of PacifiCorp, against expenses (including
attorneys' fees), judgments, penalties, fines and amounts paid
in settlement actually and reasonably incurred, provided the
person concerned acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests
of PacifiCorp, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the conduct was
unlawful. Indemnification is not permitted in connection with
a proceeding in which a person is adjudged liable on the basis
that personal benefit was improperly received unless
indemnification is permitted by a court upon a finding that the
person is fairly and reasonably entitled to indemnification in
view of all of the relevant circumstances. The termination of
a proceeding by judgment, order, settlement, conviction or plea
of nolo contendere or its equivalent is not, of itself,
determinative that the person did not meet the prescribed
standard of conduct.
(b) The OBCA permits PacifiCorp to grant a right of
indemnification in respect of any proceeding by or in the right
of PacifiCorp against the reasonable expenses (including
attorneys' fees) incurred, if the person concerned acted in good
faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of PacifiCorp, except that no
indemnification may be granted if such person is adjudged to be
liable to PacifiCorp unless permitted by a court.
(c) Under the OBCA, PacifiCorp may not indemnify a person in
respect of a proceeding described in (a) or (b) above unless it
is determined that indemnification is permissible because the <PAGE>
person has met the prescribed standard of conduct by any one of
the following: (i) the Board of Directors, by a majority vote of
a quorum consisting of directors not at the time parties to the
proceeding, (ii) if a quorum of directors not parties to the
proceeding cannot be obtained, by a majority vote of a committee
of two or more directors not at the time parties to the
proceeding, (iii) by special legal counsel selected by the Board
of Directors or the committee thereof, as described in (i) and
(ii) above, or (iv) by the shareholders. Authorization of the
indemnification and evaluation as to the reasonableness of
expenses are to be determined as specified in any one of (i)
through (iv) above, except that if the determination of such
indemnification's permissibility is made by special counsel then
the determination of the reasonableness of such expenses is to
be made by those entitled to select special counsel.
Indemnification can also be ordered by a court if the court
determines that indemnification is fair in view of all of the
relevant circumstances. Notwithstanding the foregoing, every
person who has been wholly successful, on the merits or
otherwise, in defense of a proceeding described in (a) or (b)
above is entitled to be indemnified as a matter of right against
reasonable expenses incurred in connection with the proceeding.
(d) Under the OBCA, PacifiCorp may pay for or reimburse the
reasonable expenses incurred in defending a proceeding in advance
of the final disposition thereof if the director or officer
receiving the advance furnishes (i) a written affirmation of the
director's or officer's good faith belief that he or she has met
the prescribed standard of conduct, and (ii) a written
undertaking to repay the advance if it is ultimately determined
that such person did not meet the standard of conduct.
The rights of indemnification described above are not
exclusive of any other rights of indemnification to which
officers or directors may be entitled under any statute,
agreement, vote of shareholders, action of directors, or
otherwise. Indemnity agreements entered into by PacifiCorp
require PacifiCorp to indemnify the directors that are parties
thereto to the fullest extent permitted by law and are intended
to create an obligation to indemnify to the fullest extent a
court may find to be consistent with public policy
considerations. Resolutions adopted by PacifiCorp's board of
directors are intended to have a similar result with respect to
officers of PacifiCorp.
PacifiCorp has directors' and officers' liability insurance
coverage which insures officers and directors of PacifiCorp
against certain liabilities.
<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
A list of exhibits included as part of this
Registration Statement is set forth in an Exhibit
Index, which immediately precedes such exhibits.
(b) Financial Statement Schedules
None
ITEM 22. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) For purposes of determining any liability under the
Securities Act of 1933, each filing of PacifiCorp's
annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(2) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers or persons controlling the Registrant pursuant
to the provisions described under Item 20 above, or
otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the
securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
(3) To respond to requests for information that is
incorporated by reference into the Prospectus pursuant
to Item 4, 10(b), 11 or 13 of Form S-4, within one
business day of receipt of such request, and to send the <PAGE>
incorporated documents by first-class mail or other
equally prompt means. This includes information
contained in documents filed subsequent to the effective
date of the Registration Statement through the date of
responding to the request.
(4) To supply by means of a post-effective amendment all
information concerning a transaction, and the company
being acquired involved therein, that was not the subject
of and included in the Registration Statement when it
became effective.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned thereunto duly
authorized, in the City of Portland, State of Oregon on the 12th
day of April, 1995.
PACIFICORP
By: RICHARD T. O'BRIEN
------------------------------
Richard T. O'Brien
(Vice President)
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons on April 12, 1995 in the capacities indicated.
Signature Title
*FREDERICK W. BUCKMAN President, Chief Executive
- ---------------------------- Officer and Director
Frederick W. Buckman
*DANIEL L. SPALDING Senior Vice President
- ---------------------------- (Chief Accounting Officer)
Daniel L. Spalding
*KATHRYN A. BRAUN Director
- ----------------------------
Kathryn A. Braun
*C. TODD CONOVER Director
- ----------------------------
C. Todd Conover
*RICHARD C. EDGLEY Director
- ----------------------------
Richard C. Edgley
*A.M. GLEASON Director
- ----------------------------
A.M. Gleason
(Vice Chairman)
<PAGE>
*JOHN C. HAMPTON Director
- ----------------------------
John C. Hampton
*NOLAN E. KARRAS Director
- ----------------------------
Nolan E. Karras
*KEITH R. MCKENNON Director
- ----------------------------
Keith R. McKennon
(Chairman)
*ROBERT G. MILLER Director
- ----------------------------
Robert G. Miller
*VERL R. TOPHAM Director
- ----------------------------
Verl R. Topham
*DON M. WHEELER Director
- ----------------------------
Don M. Wheeler
*NANCY WILGENBUSCH Director
- ----------------------------
Nancy Wilgenbusch
*By RICHARD T. O'BRIEN
------------------------
Richard T. O'Brien
(Attorney-in-Fact)
<PAGE>
EXHIBIT INDEX
Exhibit No. Document Page No.
- ----------- -------- ------
4)(a) Form of Indenture between PacifiCorp and
The Bank of New York as Trustee.
(4)(b) Form of Supplemental Indenture to Indenture
to be used in connection with the issuance
of Junior Subordinated Debentures.
(4)(c) Form of Junior Subordinated Debenture
(included in Exhibits (4)(a) and (b)
above).
(5) Opinion of Stoel Rives Boley Jones &
Grey with respect to Junior Subordinated
Debentures.
(8) Opinion of Stoel Rives Boley Jones &
Grey with respect to tax matters.
*(12)(a) Statement re Computation of Consolidated
Ratios of Earnings to Fixed Charges.
(Exhibit (12)(a), Form 10-K for the year
ended December 31, 1994, File No. 1-5152).
*(12)(b) Statement re Computation of Consolidated
Ratios of Earnings to Combined Fixed
Charges and Preferred Stock Dividends.
Exhibit (12)(b), Form 10-K for the year
ended December 31, 1994, File No. 1-5152).
(23)(a) Consent of Deloitte & Touche LLP.
(23)(b) Consent of Stoel Rives Boley Jones
& Grey (included in Exhibits (5) and
(8) above).
(24) Powers of Attorney.
(25) Statement of Eligibility under the
Trust Indenture Act of 1939, as amended,
of The Bank of New York, as Trustee
under the Indenture.
(99)(a) Proposed Form of Dealer Managers Agreement
(99)(b) Proposed Form of Exchange Agent Agreement
<PAGE>
(99)(c) Information Agent Agreement dated April 3,
1995 between PacifiCorp and Georgeson &
Company Inc.
(99)(d) Proposed Form of Letter of Transmittal
(99)(e) Proposed Form of Letter to Brokers
(99)(f) Proposed Form of Letter to Clients
(99)(g) Proposed Form of Notice of Guaranteed
Delivery
(99)(h) Proposed Form of Letter to Shareholders
________________
* Incorporated by reference.
_______________________________________________________________
PACIFICORP
AND
THE BANK OF NEW YORK,
AS TRUSTEE
____________________
INDENTURE
Dated as of May 1, 1995
____________________
Junior Subordinated Debentures
_______________________________________________________________<PAGE>
CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
- ------------------- -------------
310(a) . . . . . . . . . . . . . . . . . .7.09
310(b) . . . . . . . . . . . . . . . . . .7.08
7.10
310(c) . . . . . . . . . . . . . . . . . .Inapplicable
311(a) . . . . . . . . . . . . . . . . . .7.13(a)
311(b) . . . . . . . . . . . . . . . . . .7.13(b)
311(c) . . . . . . . . . . . . . . . . . .Inapplicable
312(a) . . . . . . . . . . . . . . . . . .5.01
5.02(a)
312(b) . . . . . . . . . . . . . . . . . .5.02(b)
312(c) . . . . . . . . . . . . . . . . . .5.02(c)
313(a) . . . . . . . . . . . . . . . . . .5.04(a)
313(b) . . . . . . . . . . . . . . . . . .5.04(b)
313(c) . . . . . . . . . . . . . . . . . .5.04(a)
5.04(b)
313(d) . . . . . . . . . . . . . . . . . .5.04(c)
314(a) . . . . . . . . . . . . . . . . . .5.03
314(b) . . . . . . . . . . . . . . . . . .Inapplicable
314(c) . . . . . . . . . . . . . . . . . .13.06
314(d) . . . . . . . . . . . . . . . . . .Inapplicable
314(e) . . . . . . . . . . . . . . . . . .13.06
314(f) . . . . . . . . . . . . . . . . . .Inapplicable
315(a) . . . . . . . . . . . . . . . . . .7.01(a)
7.02
315(b) . . . . . . . . . . . . . . . . . .6.07
315(c) . . . . . . . . . . . . . . . . . .7.01
315(d) . . . . . . . . . . . . . . . . . .7.01(b)
7.01(c)
315(e) . . . . . . . . . . . . . . . . . .6.08
316(a) . . . . . . . . . . . . . . . . . .6.06
8.04
316(b) . . . . . . . . . . . . . . . . . .6.04
316(c) . . . . . . . . . . . . . . . . . .8.01
317(a) . . . . . . . . . . . . . . . . . .6.02
317(b) . . . . . . . . . . . . . . . . . .4.04
318(a) . . . . . . . . . . . . . . . . . .13.08
<PAGE>
TABLE OF CONTENTS*
-----------------
Page
----
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . iv, 1
RECITALS:
Purpose of Indenture . . . . . . . . . . . . . . . . . . . . 1
Compliance with legal requirements . . . . . . . . . . . . . 1
Purpose of and consideration for Indenture . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01 Certain terms defined; other terms
defined in the Trust Indenture Act
of 1939, as amended, or by
reference therein in the Securities
Act of 1933, as amended, to have
the meanings assigned therein. . . . . . . . . 1
Authenticating Agent . . . . . . . . . . . . . 1
Board of Directors . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . 2
Certificate. . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . 2
Company. . . . . . . . . . . . . . . . . . . . 2
Debenture or Debentures. . . . . . . . . . . . 2
Debentureholder. . . . . . . . . . . . . . . . 2
Default. . . . . . . . . . . . . . . . . . . . 2
Depository . . . . . . . . . . . . . . . . . . 2
Event of Default . . . . . . . . . . . . . . . 3
Global Debenture . . . . . . . . . . . . . . . 3
Governmental Obligations . . . . . . . . . . . 3
Indenture. . . . . . . . . . . . . . . . . . . 3
Interest Payment Date. . . . . . . . . . . . . 3
Officers' Certificate. . . . . . . . . . . . . 3
Opinion of Counsel . . . . . . . . . . . . . . 3
Outstanding. . . . . . . . . . . . . . . . . . 4
Predecessor Debenture. . . . . . . . . . . . . 4
Responsible Officer. . . . . . . . . . . . . . 4
Senior Indebtedness. . . . . . . . . . . . . . 4
Trustee. . . . . . . . . . . . . . . . . . . . 4
Trust Indenture Act. . . . . . . . . . . . . . 5
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF DEBENTURES
SECTION 2.01 Designation, terms, amount,
authentication and delivery of
Debentures . . . . . . . . . . . . . . . . . . 5
SECTION 2.02 Form of Debentures and Trustee's
certificate. . . . . . . . . . . . . . . . . . 6
SECTION 2.03 Date and denominations of
Debentures, and provisions for
payment of principal, premium and
interest . . . . . . . . . . . . . . . . . . . 6
SECTION 2.04 Execution of Debentures. . . . . . . . . . . . 7
_______________
* This Table of Contents does not constitute part of the
Indenture and should not have any bearing upon the
interpretation of any of its terms or provisions.<PAGE>
SECTION 2.05 Exchange of Debentures . . . . . . . . . . . . 8
(a) Registration and transfer of
Debentures. . . . . . . . . . . . . . . . 8
(b) Debentures to be accompanied
by proper instruments of
transfer. . . . . . . . . . . . . . . . . 8
(c) Charges upon exchange,
transfer or registration of
Debentures. . . . . . . . . . . . . . . . 9
(d) Restrictions on transfer or
exchange at time of
redemption. . . . . . . . . . . . . . . . 9
SECTION 2.06 Temporary Debentures . . . . . . . . . . . . . 9
SECTION 2.07 Mutilated, destroyed, lost or
stolen Debentures. . . . . . . . . . . . . . . 9
SECTION 2.08 Cancellation of surrendered
Debentures . . . . . . . . . . . . . . . . . .10
SECTION 2.09 Provisions of Indenture and
Debentures for sole benefit of
parties and Debentureholders . . . . . . . . .10
SECTION 2.10 Appointment of Authenticating
Agent. . . . . . . . . . . . . . . . . . . . .10
SECTION 2.11 Global Debenture . . . . . . . . . . . . . . .11
ARTICLE THREE
REDEMPTION OF DEBENTURES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption of Debentures . . . . . . . . . . .12
SECTION 3.02 (a) Notice of redemption. . . . . . . . . . .12
(b) Selection of Debentures in
case less than all Debentures
to be redeemed. . . . . . . . . . . . . .13
SECTION 3.03 (a) When Debentures called for
redemption become due and
payable . . . . . . . . . . . . . . . . .13
(b) Receipt of new Debenture upon
partial payment . . . . . . . . . . . . .13
SECTION 3.04 Sinking Fund for Debentures. . . . . . . . . .14
SECTION 3.05 Satisfaction of Sinking Fund
Payments with Debentures . . . . . . . . . . .14
SECTION 3.06 Redemption of Debentures for
Sinking Fund . . . . . . . . . . . . . . . . .14
<PAGE>
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01 Payment of principal of (and
premium, if any) and interest on
Debentures . . . . . . . . . . . . . . . . . .14
SECTION 4.02 Maintenance of office or agency for
payment of Debentures, designation
of office or agency for payment,
registration, transfer and exchange
of Debentures. . . . . . . . . . . . . . . . .14
SECTION 4.03 (a) Duties of paying agent. . . . . . . . . .15
(b) Company as paying agent . . . . . . . . .15
(c) Holding sums in trust . . . . . . . . . .15
SECTION 4.04 Appointment to fill vacancy in
office of Trustee. . . . . . . . . . . . . . .15
SECTION 4.05 Restriction on consolidation,
merger or sale . . . . . . . . . . . . . . . .15
SECTION 4.06 Restriction on declaration of
dividends, etc.. . . . . . . . . . . . . . . .15
ARTICLE FIVE
DEBENTUREHOLDERS' LISTS, AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01 Company to furnish Trustee
information as to names and
addresses of Debentureholders. . . . . . . . .16
SECTION 5.02 (a) Trustee to preserve
information as to names and
addresses of Debentureholders
received by it in capacity of
paying agent. . . . . . . . . . . . . . .16
(b) Trustee may destroy list of
Debentureholders on certain
conditions. . . . . . . . . . . . . . . .16
(c) Trustee to make information as
to names and addresses of
Debentureholders available to
"applicants" or mail communica-
tions to Debentureholders in
certain circumstances . . . . . . . . . .16
(d) Procedure if Trustee elects
not to make information
available to applicants . . . . . . . . .17
(e) Company and Trustee not
accountable for disclosure of
information . . . . . . . . . . . . . . .17
SECTION 5.03 (a) Annual and other reports to be
filed by Company with Trustee . . . . . .17
(b) Additional information and
reports to be filed with
Trustee and Securities and
Exchange Commission . . . . . . . . . . .17
(c) Summaries of information and
reports to be transmitted by
Company to Debentureholders . . . . . . .17
(d) Annual Certificate to be
furnished to Trustee. . . . . . . . . . .18
(e) Reports concerning original
issue discount. . . . . . . . . . . . . .18
SECTION 5.04 (a) Trustee to transmit annual
report to Debentureholders. . . . . . . .18
<PAGE>
(b) Trustee to transmit certain
further reports to
Debentureholders. . . . . . . . . . . . .18
(c) Copies of reports to be filed
with stock exchanges and
Securities and Exchange
Commission. . . . . . . . . . . . . . . .19
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
UPON EVENT OF DEFAULT
SECTION 6.01 (a) Events of Default defined . . . . . . . .19
(b) Acceleration of maturity upon
Event of Default. . . . . . . . . . . . .20
(c) Waiver of default and
rescission of declaration of
maturity. . . . . . . . . . . . . . . . .20
(d) Restoration of former position
and rights upon curing
default . . . . . . . . . . . . . . . . .20
SECTION 6.02 (a) Covenant of Company to pay to
Trustee whole amount due on
Debentures on default in
payment of interest or
principal (and premium, if
any). . . . . . . . . . . . . . . . . . .20
(b) Trustee may recover judgment
for whole amount due on
Debentures on failure of
Company to pay. . . . . . . . . . . . . .20
(c) Filing of proof of claim by
Trustee in bankruptcy,
reorganization or receivership
proceeding. . . . . . . . . . . . . . . .21
(d) Rights of action and of
asserting claims may be
enforced by Trustee without
possession of Debentures. . . . . . . . .21
SECTION 6.03 Application of moneys collected by
Trustee. . . . . . . . . . . . . . . . . . . .21
SECTION 6.04 Limitation on suits by holders of
Debentures . . . . . . . . . . . . . . . . . .22
SECTION 6.05 (a) Remedies cumulative . . . . . . . . . . .22
(b) Delay or omission in exercise
of rights not waiver of
default . . . . . . . . . . . . . . . . .22
SECTION 6.06 Rights of holders of majority in
principal amount of Debentures to
direct Trustee and to waive defaults . . . . .22
SECTION 6.07 Trustee to give notice of defaults
known to it, but may withhold in
certain circumstances. . . . . . . . . . . . .23
SECTION 6.08 Requirements of an undertaking to
pay costs in certain suits under
Indenture or against Trustee . . . . . . . . .23
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01 (a) Upon Event of Default
occurring and continuing,
Trustee shall exercise powers
vested in it, and use same
degree of care and skill in
their exercise, as prudent
individual would use. . . . . . . . . . .23
(b) Trustee not relieved from
liability for negligence or
willful misconduct except as
provided in this section. . . . . . . . .24
(1) Prior to Event of Default and
after the curing of all Events
of Default which may have
occurred. . . . . . . . . . . . . . . . .24
<PAGE>
(i) Trustee not liable except for
performance of duties
specifically set forth. . . . . . . . . .24
(ii) In absence of bad faith,
Trustee may conclusively rely
on certificates or opinions
furnished it hereunder,
subject to duty to examine the
same if specifically required
to be furnished to it . . . . . . . . . .24
(2) Trustee not liable for error
of judgment made in good faith
by Responsible Officer unless
Trustee negligent . . . . . . . . . . . .24
(3) Trustee not liable for action
or non-action in accordance
with direction of holders of
majority in principal amount
of Debentures . . . . . . . . . . . . . .24
(4) Trustee need not expend own
funds without adequate
indemnity . . . . . . . . . . . . . . . .24
(c) Provisions regarding liability
of Trustee subject to Section
7.01. . . . . . . . . . . . . . . . . . .24
SECTION 7.02 Subject to provisions of Section
7.01:
(a) Trustee may rely on documents
believed genuine and properly
signed or presented . . . . . . . . . . .24
(b) Sufficient evidence by certain
instruments provided for. . . . . . . . .24
(c) Trustee may obtain Officer's
Certificate . . . . . . . . . . . . . . .25
(d) Trustee may consult with
counsel and act on advice or
Opinion of Counsel. . . . . . . . . . . .25
(e) Trustee may require indemnity
from Debentureholders . . . . . . . . . .25
(f) Prior to Event of Default
Trustee not bound to
investigate facts or matters
stated in certificates, etc.,
unless requested in writing by
Debentureholders. . . . . . . . . . . . .25
(g) Trustee not liable for actions
in good faith believed to be
authorized. . . . . . . . . . . . . . . .25
(h) Trustee not bound to make
investigation . . . . . . . . . . . . . .25
(i) Trustee may perform duties
directly or through agents or
attorneys . . . . . . . . . . . . . . . .25
(j) Application for Instructions. . . . . . .25
SECTION 7.03 (a) Trustee not liable for
recitals in Indenture or in
Debentures. . . . . . . . . . . . . . . .25
(b) No representations by Trustee
as to validity of Indenture or
of Debentures . . . . . . . . . . . . . .26
(c) Trustee not accountable for
use of Debentures or proceeds . . . . . .26
SECTION 7.04 Trustee, paying agent or Debenture
Registrar may own Debentures . . . . . . . . .26
SECTION 7.05 Moneys received by Trustee to be
held in trust without interest . . . . . . . .26
SECTION 7.06 (a) Trustee entitled to
compensation, reimbursement
and indemnity . . . . . . . . . . . . . .26
(b) Obligations to Trustee to be
secured by claim prior to
Debentures. . . . . . . . . . . . . . . .26
<PAGE>
(c) Services in connection with
Event of Default. . . . . . . . . . . . .26
SECTION 7.07 Right of Trustee to rely on
certificate of officers of Company
where no other evidence
specifically prescribed. . . . . . . . . . . .26
SECTION 7.08 Trustee acquiring conflicting
interest to eliminate conflict or
resign . . . . . . . . . . . . . . . . . . . .27
SECTION 7.09 Requirements for eligibility of
Trustee. . . . . . . . . . . . . . . . . . . .27
SECTION 7.10 (a) Resignation of Trustee and
appointment of successor. . . . . . . . .27
(b) Removal of Trustee by Company
or by court on Debenture-
holders' application. . . . . . . . . . .27
(c) Removal of Trustee by holders
of majority in principal
amount of Debentures. . . . . . . . . . .28
(d) Time when resignation or
removal of Trustee effective. . . . . . .28
(e) One Trustee for each series . . . . . . .28
SECTION 7.11 (a) Acceptance by successor to
Trustee . . . . . . . . . . . . . . . . .28
(b) Trustee with respect to less
than all series . . . . . . . . . . . . .28
(c) Company to confirm Trustee's
rights. . . . . . . . . . . . . . . . . .28
(d) Successor Trustee to be
qualified . . . . . . . . . . . . . . . .29
(e) Notice of succession. . . . . . . . . . .29
SECTION 7.12 Successor to Trustee by merger,
consolidation or succession to
business . . . . . . . . . . . . . . . . . . .29
SECTION 7.13 Limitations on rights of Trustee as
a creditor to obtain payment of
certain claims within four months
prior to default or during default,
or to realize on property as such
creditor thereafter. . . . . . . . . . . . . .29
ARTICLE EIGHT
CONCERNING THE DEBENTUREHOLDERS
SECTION 8.01 Evidence of action by
Debentureholders . . . . . . . . . . . . . . .29
SECTION 8.02 Proof of execution of instruments
and of holding of Debentures . . . . . . . . .29
SECTION 8.03 Who may be deemed owners of
Debentures . . . . . . . . . . . . . . . . . .30
SECTION 8.04 Debentures owned by Company or
controlled or controlling companies
disregarded for certain purposes . . . . . . .30
SECTION 8.05 Instruments executed by
Debentureholders bind future
holders. . . . . . . . . . . . . . . . . . . .30
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01 Purposes for which supplemental
indenture may be entered into
without consent of
Debentureholders . . . . . . . . . . . . . . .31
SECTION 9.02 Modification of Indenture with
consent of Debentureholders. . . . . . . . . .31
<PAGE>
SECTION 9.03 Effect of supplemental indentures. . . . . . .32
SECTION 9.04 Debentures may bear notation of
changes by supplemental indentures . . . . . .32
SECTION 9.05 Opinion of Counsel . . . . . . . . . . . . . .32
ARTICLE TEN
CONSOLIDATION, MERGER AND SALE
SECTION 10.01 Consolidations or mergers of
Company and sales or conveyances of
property of Company permitted. . . . . . . . .32
SECTION 10.02 (a) Rights and duties of successor
company . . . . . . . . . . . . . . . . .33
(b) Appropriate changes may be
made in phraseology and form
of Debentures . . . . . . . . . . . . . .33
(c) Company may consolidate or
merge into itself or acquire
properties of other
corporations. . . . . . . . . . . . . . .33
SECTION 10.03 Opinion of Counsel . . . . . . . . . . . . . .33
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 11.01 Satisfaction and discharge of
Indenture. . . . . . . . . . . . . . . . . . .33
SECTION 11.02 Discharge of Company's Obligations . . . . . .34
SECTION 11.03 Opinion of Counsel . . . . . . . . . . . . . .34
SECTION 11.04 Application by Trustee of funds
deposited for payment of
Debentures . . . . . . . . . . . . . . . . . .34
SECTION 11.05 Repayment of moneys held by paying
agent. . . . . . . . . . . . . . . . . . . . .35
SECTION 11.06 Repayment of moneys held by
Trustee. . . . . . . . . . . . . . . . . . . .35
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 Incorporators, stockholders,
officers and directors of Company
exempt from individual liability . . . . . . .35
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01 Successors and assigns of Company
bound by Indenture . . . . . . . . . . . . . .35
SECTION 13.02 Acts of board, committee or officer
of successor company valid . . . . . . . . . .35
SECTION 13.03 Required notices or demands may be
served by mail . . . . . . . . . . . . . . . .35
SECTION 13.04 Indenture and Debentures to be
construed in accordance with laws
of the State of New York . . . . . . . . . . .36
SECTION 13.05 (a) Officers' Certificate and
Opinion of Counsel to be
furnished upon applications or
demands by Company. . . . . . . . . . . .36
<PAGE>
(b) Statements to be included in
each certificate or opinion
with respect to compliance
with condition or covenant. . . . . . . .36
SECTION 13.06 Opinion of Counsel to be furnished
upon execution of Indenture. . . . . . . . . .36
SECTION 13.07 Payments due on Sundays or
holidays . . . . . . . . . . . . . . . . . . .36
SECTION 13.08 Provisions required by Trust
Indenture Act of 1939 to control . . . . . . .36
SECTION 13.09 Indenture may be executed in
counterparts . . . . . . . . . . . . . . . . .36
SECTION 13.10 Separability of Indenture
provisions . . . . . . . . . . . . . . . . . .36
SECTION 13.11 Assignment by Company to
subsidiary . . . . . . . . . . . . . . . . . .37
SECTION 13.12 Agreement that Debentures
constitute debt. . . . . . . . . . . . . . . .37
ARTICLE FOURTEEN
SUBORDINATION OF DEBENTURES
SECTION 14.01 Agreement of Subordination . . . . . . . . . .37
SECTION 14.02 Limitations on payments to
Debentureholders . . . . . . . . . . . . . . .37
SECTION 14.03 Payments in bankruptcy . . . . . . . . . . . .37
SECTION 14.04 Subrogation of Debentures. . . . . . . . . . .38
SECTION 14.05 Authorization by Debentureholders. . . . . . .39
SECTION 14.06 Notice to Trustee. . . . . . . . . . . . . . .39
SECTION 14.07 Trustee's relation to Senior
Indebtedness . . . . . . . . . . . . . . . . .40
SECTION 14.08 Acts of holders of Senior
Indebtedness . . . . . . . . . . . . . . . . .40
ACCEPTANCE OF TRUST BY TRUSTEE . . . . . . . . . . . . . . .41
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . .40
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . .41, 42
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . .41<PAGE>
THIS INDENTURE, dated as of the 1st day of May, 1995,
between PACIFICORP, a corporation duly organized and existing
under the laws of the State of Oregon (hereinafter sometimes
referred to as the "Company"), and THE BANK OF NEW YORK, a New
York banking corporation organized and existing under the laws
of the State of New York, as trustee (hereinafter sometimes
referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company
has duly authorized the execution and delivery of this
Indenture to provide for the issuance of debentures
(hereinafter referred to as the "Debentures"), in an unlimited
aggregate principal amount to be issued from time to time in
one or more series as in this Indenture provided as registered
Debentures without coupons, to be authenticated by the
certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which
the Debentures are to be authenticated, issued and delivered,
the Company has duly authorized the execution of this
Indenture;
WHEREAS, the Debentures and the certificate of
authentication to be borne by the Debentures (the "Certificate
of Authentication") are to be substantially in such forms as
may be approved by the Board of Directors (as defined below) or
set forth in any indenture supplemental to this Indenture; and
WHEREAS, all acts and things necessary to make the
Debentures issued pursuant hereto, when executed by the Company
and authenticated and delivered by the Trustee as in this
Indenture provided, the valid, binding and legal obligations of
the Company, and to constitute these presents a valid indenture
and agreement according to its terms, have been done and
performed or will be done and performed prior to the issuance
of the Debentures, and the execution of this Indenture and the
issuance hereunder of the Debentures have been or will be prior
to issuance in all respects duly authorized, and the Company,
in the exercise of the legal right and power in it vested,
executes this Indenture and proposes to make, execute, issue
and deliver the Debentures;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon
which the Debentures are and are to be authenticated, issued
and delivered, and in consideration of the premises, of the
purchase and acceptance of the Debentures by the holders
thereof and of the sum of one dollar ($1.00) to it duly paid by
the Trustee at the execution of these presents, the receipt
whereof is hereby acknowledged, the Company covenants and
agrees with the Trustee, for the equal and proportionate
benefit (subject to the provisions of this Indenture) of the
respective holders from time to time of the Debentures, without
any discrimination, preference or priority of any one Debenture
over any other by reason of priority in the time of issue, sale
or negotiation thereof, or otherwise, except as provided
herein, as follows:
ARTICLE ONE
Definitions
SECTION 1.01. The terms defined in this Section (except
as in this Indenture otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture,
any resolution of the Board of Directors of the Company and of
any indenture supplemental hereto shall have the respective
meanings specified in this Section. All other terms used in
this Indenture which are defined in the Trust Indenture Act, or
which are by reference in the Trust Indenture Act defined in
the Securities Act of 1933, as amended (the "Securities Act"),
(except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned
to such terms in the Trust Indenture Act and in the
Securities Act as in force at the date of the execution of this
instrument.
Authenticating Agent:
The term "Authenticating Agent" means an authenticating agent
with respect to all or any of the series of Debentures, as the
case may be, appointed with respect to all or any series of the
Debentures, as the case may be, by the Trustee pursuant to
Section 2.10.
Board of Directors:
The term "Board of Directors" means the Board of Directors of
the Company, or any committee of such Board duly authorized to
act on behalf thereof hereunder.
Board Resolution:
The term "Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such
certification.
<PAGE>
Business Day:
The term "Business Day", with respect to any series of
Debentures, means any day other than a day on which banking
institutions in the Borough of Manhattan, the City and State of
New York, are authorized to close.
Certificate:
The term "Certificate" means a certificate signed by the
principal executive officer, principal financial officer or
principal accounting officer of the Company. The Certificate
need not comply with the provisions of Section 13.05.
Corporate Trust Office:
The term "Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of the execution of this Indenture is located at 101
Barclay Street, New York, NY 10286, Attention: Corporate Trust
Trustee Administration.
Company:
The term "Company" means PacifiCorp, a corporation duly
organized and existing under the laws of the State of Oregon,
and, subject to the provisions of Article Ten, also includes
its successors and assigns.
Debenture or Debentures:
The term "Debenture" or "Debentures" means any Debenture or
Debentures, as the case may be, authenticated and delivered
under this Indenture.
Debentureholder:
The term "Debentureholder," "holder of Debentures," "registered
holder" or other similar term means the person or persons in
whose name or names a particular Debenture shall be registered
on the books of the Company kept for that purpose in accordance
with the terms of this Indenture.
Default:
The term "default" means any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of
Default.
Depository:
The term "Depository" means, with respect to Debentures of any
series for which the Company shall determine that such
Debentures will be issued as a Global Debenture, The Depository
Trust Company, New York, New York, another clearing agency or
any successor registered as a clearing agency under the
Securities and Exchange Act of 1934, as amended (the "Exchange
Act"), or other applicable statute or regulation, which, in
each case, shall be designated by the Company pursuant to
either Section 2.01 or 2.11.
Event of Default:
The term "Event of Default" means, with respect to Debentures
of a particular series, any event specified in Section 6.01,
continued for the period of time, if any, therein designated.
Global Debenture:
The term "Global Debenture" means, with respect to any series
of Debentures, a Debenture executed by the Company and
delivered by the Trustee to the Depository or pursuant to the
Depository's instruction, all in accordance with the Indenture,
which shall be registered in the name of the Depository or its
nominee.
Governmental Obligations:
The term "Governmental Obligations" means securities that are
(i) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or
(ii) obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of
America, which, in either <PAGE>
case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of
or interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depository
receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the specific
payment of principal of or interest on the Governmental
Obligation evidenced by such depository receipt.
Indenture:
The term "Indenture" means this instrument as originally
executed, or, if amended or supplemented as herein provided, as
so amended or supplemented.
Interest Payment Date:
The term "Interest Payment Date," when used with respect to any
installment of interest on a Debenture of a particular series,
means the date specified in such Debenture, a Board Resolution
or an indenture supplemental hereto with respect to that series
as the fixed date on which an installment of interest with
respect to Debentures of that series is due and payable.
Officers' Certificate:
The term "Officers' Certificate" means a certificate signed by
the President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Controller or an Assistant
Controller or the Secretary or an Assistant Secretary of the
Company. Each such certificate shall include the statements
provided for in Section 13.05, if and to the extent required by
the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" means an opinion in writing
signed by legal counsel, who may be counsel for the Company,
reasonably acceptable to the Trustee. Each such opinion shall
include the statements provided for in Section 13.05, if and to
the extent required by the provisions thereof.
Outstanding:
The term "outstanding", when used with reference to Debentures
of any series, means , subject to the provisions of Section
8.04, as of any particular time, all Debentures of that series
theretofore authenticated and delivered by the Trustee under
this Indenture, except (a) Debentures theretofore canceled by
the Trustee or any paying agent, or delivered to the Trustee or
any paying agent for cancellation or which have previously been
canceled; (b) Debentures or portions thereof for the payment or
redemption of which moneys or Governmental Obligations in the
necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent);
provided, however, that if such Debentures or portions of such
Debentures are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article
Three provided, or provision satisfactory to the Trustee shall
have been made for giving such notice; (c) Debentures in lieu
of or in substitution for which other Debentures shall have
been authenticated and delivered pursuant to the terms of
Section 2.07; and (d) Debentures paid pursuant to Section 2.07.
Predecessor Debenture:
The term "Predecessor Debenture" of any particular Debenture
means every previous Debenture evidencing all or a portion of
the same debt as that evidenced by that particular Debenture;
and, for the purposes of this definition, any Debenture
authenticated and delivered under Section 2.07 in lieu of a
lost, destroyed or stolen Debenture shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debenture.
Responsible Officer:
The term "Responsible Officer," when used with respect to the
Trustee, means the chairman of the board of directors,
president, any vice president, secretary, treasurer, any trust
officer, any corporate trust officer or any other officer or
assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the
time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
<PAGE>
Senior Indebtedness:
The term "Senior Indebtedness" of the Company means the
principal of, and premium, if any, and interest on and any
other payment due pursuant to any of the following, whether
outstanding at the date of execution of this Indenture or
thereafter incurred, created or assumed: (a) all indebtedness
of the Company evidenced by notes, debentures, bonds or other
securities sold by the Company for money, (b) all indebtedness
of others of the kinds described in the preceding clause (a)
assumed by or guaranteed in any manner by the Company or in
effect guaranteed by the Company through an agreement to
purchase, contingent or otherwise, and (c) all renewals,
extensions or refundings of indebtedness of the kinds described
in either of the preceding clauses (a) and (b) unless, in the
case of any particular indebtedness, renewal, extension or
refunding, the instrument creating or evidencing the same or
the assumption or guarantee of the same expressly provides that
such indebtedness, renewal, extension or refunding is not
superior in right of payment to or is pari passu with the
Debentures. Such Senior Indebtedness shall continue to be
Senior Indebtedness and entitled to the benefits of the
subordination provisions set forth in Article Fourteen of this
Indenture irrespective of any amendment, modification or waiver
of any term of such Senior Indebtedness.
Trustee:
The term "Trustee" means The Bank of New York and, subject to
the provisions of Article Seven, shall also include its
successors and assigns, and if at any time there is more than
one person acting in such capacity hereunder, "Trustee" means
each such person. The term "Trustee" as used with respect to a
particular series of the Debentures means the trustee with
respect to that series.
Trust Indenture Act:
The term "Trust Indenture Act," subject to the provisions of
Sections 9.01, 9.02 and 10.01, means the Trust Indenture Act of
1939, as amended and in effect at the date of execution of this
Indenture.
ARTICLE TWO
Issue, Description, Terms, Execution,
Registration and Exchange of Debentures
SECTION 2.01. The aggregate principal amount of
Debentures which may be authenticated and delivered under this
Indenture is unlimited.
The Debentures may be issued in one or more series up to
the aggregate principal amount of Debentures of that series
from time to time authorized by or pursuant to a Board
Resolution or pursuant to one or more indentures supplemental
hereto, prior to the initial issuance of Debentures of a
particular series. Prior to the initial issuance of Debentures
of any series, there shall be established in or pursuant to a
Board Resolution delivered to the Trustee, and set forth in an
Officers' Certificate delivered to the Trustee, or established
in one or more indentures supplemental hereto:
(1) the title of the Debentures of the series (which
shall distinguish the Debentures of that series from all
other Debentures);
(2) any limit upon the aggregate principal amount of
the Debentures of that series which may be authenticated
and delivered under this Indenture (except for Debentures
authenticated and delivered upon registration of transfer
of, in exchange for or in lieu of other Debentures of that
series);
(3) the date or dates on which the principal of the
Debentures of that series is payable;
(4) the rate or rates at which the Debentures of
that series shall bear interest or the manner of
calculation of such rate or rates, if any;
(5) the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest
will be payable or the manner of determination of such
Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on
any such Interest Payment Dates;
(6) the right, if any, to extend the interest
payment periods and the duration of such extension;<PAGE>
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which
Debentures of that series may be redeemed, in whole or in
part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem
or purchase Debentures of that series pursuant to any
sinking fund or analogous provisions (including payments
made in cash in anticipation of future sinking fund
obligations) or at the option of a holder thereof and the
period or periods within which, the price or prices at
which and the terms and conditions upon which, Debentures
of that series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(9) the form of the Debentures of that series,
including the form of the Certificate of Authentication
for that series;
(10) if denominations of other than $25 or any
integral multiple thereof, the denominations in which
Debentures of that series shall be issuable;
(11) any and all other terms with respect to that
series (which terms shall not be inconsistent with the
terms of this Indenture); and
(12) whether the Debentures are issuable as a Global
Debenture and, in such case, the identity of the
Depository for that series.
All Debentures of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided in or pursuant to any such Board Resolution or in
any indentures supplemental hereto.
If any of the terms of that series are established by
action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of that series.
SECTION 2.02. The Debentures of any series and the
Certificate of Authentication to be borne by such Debentures
shall be substantially of the tenor and purport as set forth in
one or more indentures supplemental hereto or as provided in a
Board Resolution and as set forth in an Officers' Certificate,
and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may
deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply
with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on
which Debentures of that series may be listed, or to conform to
usage.
SECTION 2.03. The Debentures shall be issuable as
registered Debentures and in denominations of $25 or any
integral multiple thereof, subject to Section 2.01(10). The
Debentures of a particular series shall bear interest payable
on the dates and at the rate or rates specified with respect to
that series. The principal of and the interest on the
Debentures of any series, as well as any premium thereon in
case of redemption thereof prior to maturity, shall be payable
in the coin or currency of the United States of America which
at the time is legal tender for public and private debt, at the
office or agency of the Company maintained for that purpose in
the Borough of Manhattan, the City and State of New York
(which, unless changed, shall be a corporate trust office or
agency of the Trustee). At the Company's option, payments on
the Debentures of any series may also be made (i) by checks
mailed by the Trustee to the holders entitled thereto at their
registered addresses or (ii) to a holder of $1,000,000 or more
in aggregate principal amount of the Debentures who has
delivered a written request to the Trustee at least 14 days
prior to the relevant Interest Payment Date electing to have
payments made by wire transfer to a designated account in the
United States, by wire transfer of immediately available funds
to such designated account; provided that, in either case, the
payment of principal with respect to any Debenture will be made
only upon surrender of that Debenture to the Trustee. Each
Debenture shall be dated the date of its authentication.
Interest on the Debentures shall be computed on the basis of a
360-day year composed of twelve 30-day months and, for any
period shorter than a full calendar month, on the basis of the
actual number of days elapsed in such period.
The interest installment on any Debenture which is
payable, and is punctually paid or duly provided for, on any
Interest Payment Date for Debentures of that series shall be
paid to the person in whose name that Debenture (or one or
more Predecessor Debentures) is registered at the close of
business on the regular record date for such interest
installment. In the event that any Debenture of a particular
series or portion thereof is called for redemption and the
redemption date is subsequent to a regular record date with
respect to any Interest Payment <PAGE>
Date and prior to such Interest Payment Date, interest on that
Debenture will be paid upon presentation and surrender of that
Debenture as provided in Section 3.03.
Any interest on any Debenture which is payable, but is not
punctually paid or duly provided for, on any Interest Payment
Date for Debentures of the same series (herein called
"Defaulted Interest") shall forthwith cease to be payable to
the registered holder on the relevant regular record date by
virtue of having been such holder; and such Defaulted Interest
shall be paid by the Company, at its election, as provided in
clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted
Interest on Debentures to the persons in whose names such
Debentures (or their respective Predecessor Debentures)
are registered at the close of business on a special
record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such
Debenture and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit
of the persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted
Interest which shall not be more than 15 nor less than 10
days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date
and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be
mailed, first-class postage prepaid, to each
Debentureholder at his or her address as it appears in the
Debenture Register (as hereinafter defined), not less than
10 days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the
special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the
persons in whose names such Debentures (or their
respective Predecessor Debentures) are registered on such
special record date and shall be no longer payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on any Debentures in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which such Debentures may be listed, and upon
such notice as may be required by such exchange if, after
notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or
more indentures supplemental hereto establishing the terms of
any series of Debentures pursuant to Section 2.01 hereof, the
term "regular record date" as used in this Section with respect
to a series of Debentures with respect to any Interest Payment
Date for that series shall mean either the 15th day of the
month immediately preceding the month in which an Interest
Payment Date established for that series pursuant to Section
2.01 hereof shall occur, if such Interest Payment Date is the
first day of a month, or the last day of the month immediately
preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the 15th day of
a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each
Debenture of a series delivered under this Indenture upon
transfer of or in exchange for or in lieu of any other
Debenture of such series shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such
other Debenture.
SECTION 2.04. The Debentures shall, subject to the
provisions of Section 2.06, be printed on steel engraved
borders or fully or partially engraved, or legibly typed, as
the proper officers of the Company may determine, and shall be
signed on behalf of the Company by its President or one of its
Vice Presidents, under its corporate seal attested by its
Secretary or one of its Assistant Secretaries. The signature
of the President or a Vice President and/or the signature of
the Secretary or an Assistant Secretary in attestation of the
corporate seal, upon the Debentures, may be in the form of a
facsimile signature of a present or any future President or
Vice President and of a present or any future Secretary or
Assistant Secretary and may be imprinted or otherwise
reproduced on the Debentures and for that purpose the Company
may use the facsimile signature of any person who shall have
been a President or Vice President, or of any person who shall
have been a Secretary or Assistant Secretary, notwithstanding
the fact that at the time the Debentures shall be authenticated
and delivered or disposed of that person shall have ceased to
be the President or a Vice President, or the Secretary or an
Assistant Secretary, of the Company, as the case may be. The
seal of the Company may be in the form of a facsimile of the
seal of the Company and may be impressed, affixed, imprinted or
otherwise reproduced on the Debentures.<PAGE>
Only such Debentures as shall bear thereon a Certificate
of Authentication substantially in the form established for
such Debentures, executed manually by an authorized signatory
of the Trustee, or by any Authenticating Agent with respect to
such Debentures, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such
certificate executed by the Trustee, or by any Authenticating
Agent appointed by the Trustee with respect to such Debentures,
upon any Debenture executed by the Company shall be conclusive
evidence that the Debenture so authenticated has been duly
authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures
of any series executed by the Company to the Trustee for
authentication, together with a written order of the Company
for the authentication and delivery of such Debentures, signed
by its President or any Vice President and its Treasurer or any
Assistant Treasurer, and the Trustee in accordance with such
written order shall authenticate and deliver such Debentures.
In authenticating such Debentures and accepting the
additional responsibilities under this Indenture in relation to
such Debentures, the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying
upon, (i) an Opinion of Counsel and (ii) an Officers'
Certificate, each stating that the form and terms thereof have
been established in conformity with the provisions of this
Indenture. Each Opinion of Counsel and Officers' Certificate
delivered pursuant to this Section 2.04 shall include all
statements prescribed by Section 13.05(b) hereof.
The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this
Indenture will, in the good faith judgment of the Trustee,
affect the Trustee's own rights, duties or immunities under the
Debentures and this Indenture or otherwise in a manner that is
not reasonably acceptable to the Trustee.
SECTION 2.05. (a) Debentures of any series may be
exchanged upon presentation thereof at the office or agency of
the Company designated for such purpose in the Borough of
Manhattan, the City and State of New York, for other Debentures
of such series of authorized denominations, and for a like
aggregate principal amount, upon payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto,
all as provided in this Section. In respect of any Debentures
so surrendered for exchange, the Company shall execute, the
Trustee shall authenticate and such office or agency shall
deliver in exchange therefor the Debenture or Debentures of the
same series which the Debentureholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously
outstanding.
(b) The Company shall keep, or cause to be kept, at its
office or agency designated for such purpose in the Borough of
Manhattan, the City and State of New York, or such other
location designated by the Company, a register or registers
(herein referred to as the "Debenture Register") in which,
subject to such reasonable regulations as it may prescribe, the
Company shall register the Debentures and the transfers of
Debentures as in this Article provided and which at all
reasonable times shall be open for inspection by the Trustee.
The registrar for the purpose of registering Debentures and
transfer of Debentures as herein provided shall be appointed as
authorized by Board Resolution (the "Debenture Registrar").
Upon surrender for transfer of any Debenture at the office
or agency of the Company designated for such purpose in the
Borough of Manhattan, the City and State of New York, the
Company shall execute, the Trustee shall authenticate and such
office or agency shall deliver in the name of the transferee or
transferees a new Debenture or Debentures of the same series as
the Debenture presented for a like aggregate principal amount.
All Debentures presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be
accompanied (if so required by the Company or the Debenture
Registrar) by a written instrument or instruments of transfer,
in form satisfactory to the Company and the Debenture
Registrar, duly executed by the registered holder or by his
duly authorized attorney in writing.
(c) Except as provided in the first paragraph of Section
2.07, no service charge shall be made for any exchange or
registration of transfer of Debentures, or issue of new
Debentures in case of partial redemption of any series, but the
Company may require payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, other
than exchanges pursuant to Section 2.06, the second paragraph
of Section 3.03 and Section 9.04 not involving any transfer.
(d) The Company shall neither be required (i) to issue,
exchange or register the transfer of any Debentures of any
series during a period beginning at the opening of business 15
days before the day of selection for redemption of Debentures
of that series and ending at the close of business on the
earliest date on which the relevant notice of redemption is
deemed to have been given to all holders of Debentures of that
series to be redeemed , nor (ii) to register the transfer of or
exchange any Debentures of any series or portions thereof
called <PAGE>
for redemption. The provisions of this Section 2.05 are, with
respect to any Global Debenture, subject to Section 2.11
hereof.
SECTION 2.06. Pending the preparation of definitive
Debentures of any series, the Company may execute, and the
Trustee shall authenticate and deliver, temporary Debentures
(printed, lithographed or typewritten) of any authorized
denomination, and substantially in the form of the definitive
Debentures in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for
temporary Debentures, all as may be determined by the Company.
Every temporary Debenture of any series shall be executed by
the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like
effect, as the definitive Debentures of that series in
accordance with the terms of Section 2.04 hereof. Without
unnecessary delay the Company will execute and will furnish
definitive Debentures of such series and thereupon any or all
temporary Debentures of that series may be surrendered in
exchange therefor (without charge to the holders), at the
office or agency of the Company designated for the purpose in
the Borough of Manhattan, the City and State of New York, and
the Trustee shall authenticate and such office or agency shall
deliver in exchange for such temporary Debentures an equal
aggregate principal amount of definitive Debentures of that
series, unless the Company advises the Trustee to the effect
that definitive Debentures need not be executed and furnished
until further notice from the Company. Until so exchanged, the
temporary Debentures of that series shall be entitled to the
same benefits under this Indenture as definitive Debentures of
that series authenticated and delivered hereunder.
SECTION 2.07. In case any temporary or definitive
Debenture shall become mutilated or be destroyed, lost or
stolen, the Company (subject to the next succeeding sentence)
shall execute, and upon its request the Trustee (subject as
aforesaid) shall authenticate and deliver, a new Debenture of
the same series bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated
Debenture, or in lieu of and in substitution for the Debenture
so destroyed, lost or stolen. In every case the applicant for
a substituted Debenture shall furnish to the Company and to the
Trustee such security or indemnity as may be required by them
to save each of them harmless and, in every case of
destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction
of the destruction, loss or theft of the applicant's Debenture
and of the ownership thereof. The Trustee may authenticate any
such substituted Debenture and deliver the same upon the
written order of the Company. Upon the issuance of any
substituted Debenture, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected
therewith. In case any Debenture which has matured or is about
to mature or has been called for redemption shall become
mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Debenture, pay or authorize the
payment of the same (without surrender thereof except in the
case of a mutilated Debenture) if the applicant for such
payment shall furnish to the Company and to the Trustee such
security or indemnity as they may require to save them harmless
and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction,
loss or theft of such Debenture and of the ownership thereof.
Every Debenture issued pursuant to the provisions of this
Section in substitution for any Debenture which is mutilated,
destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Debenture shall be found
at any time, or be enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and
proportionately with any and all other Debentures of the same
series duly issued hereunder. All Debentures shall be held and
owned upon the express condition that the foregoing provisions
are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debentures, and shall
preclude (to the extent lawful) any and all other rights or
remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 2.08. All Debentures surrendered for the purpose
of payment, redemption, exchange or registration of transfer
shall, if surrendered to the Company or any paying agent, be
delivered to the Trustee for cancellation, or, if surrendered
to the Trustee, shall be canceled by it, and no Debentures
shall be issued in lieu thereof except as expressly required or
permitted by any of the provisions of this Indenture. On
request of the Company, the Trustee shall deliver to the
Company canceled Debentures held by the Trustee. In the
absence of such request the Trustee may dispose of canceled
Debentures in accordance with its standard procedures. If the
Company shall otherwise acquire any of the Debentures, however,
such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Debentures
unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.09. Nothing in this Indenture or in the
Debentures, express or implied, shall give or be construed to
give to any person, firm or corporation, other than the parties
hereto and the holders of the Debentures, any legal or
equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being
for the sole benefit of the parties hereto and of the holders
of the Debentures.
<PAGE>
SECTION 2.10. So long as any of the Debentures of any
series remain outstanding there may be an Authenticating Agent
for any or all such series of Debentures which the Trustee
shall have the right to appoint. Said Authenticating Agent
shall be authorized to act on behalf of the Trustee to
authenticate Debentures of such series issued upon exchange,
transfer or partial redemption thereof, and Debentures so
authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. All references in
this Indenture to the authentication of Debentures of any
series by the Trustee shall be deemed to include authentication
by an Authenticating Agent for such series except for
authentication upon original issuance or pursuant to Section
2.07 hereof. Each Authenticating Agent shall be acceptable to
the Company and shall be a corporation which has a combined
capital and surplus, as most recently reported or determined by
it, of $50 million, and which is otherwise authorized under
such laws to conduct a trust business and is subject to
supervision or examination by federal or state authorities. If
at any time any Authenticating Agent shall cease to be eligible
in accordance with these provisions, it shall resign
immediately.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the
Company. The Trustee may at any time (and upon request by the
Company shall) terminate the agency of any Authenticating Agent
by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the
Trustee may appoint an eligible successor Authenticating Agent
acceptable to the Company. Any successor Authenticating Agent,
upon acceptance of its appointment hereunder, shall become
vested with all the rights, powers and duties of its
predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.
SECTION 2.11. (a) If the Company shall establish pursuant
to Section 2.01 that the Debentures of a particular series are
to be issued as a Global Debenture, then the Company shall
execute and the Trustee shall, in accordance with Section 2.04,
authenticate and deliver, a Global Debenture which (i) shall
represent, and shall be denominated in an amount equal to the
aggregate principal amount of, all of the Outstanding
Debentures of that series, (ii) shall be registered in the
name of the Depository or its nominee, (iii) shall be delivered
by the Trustee to the Depository or pursuant to the
Depository's instruction and (iv) shall bear a legend
substantially to the following effect: "Except as otherwise
provided in Section 2.11 of the Indenture, this Debenture may
be transferred, in whole but not in part, only to another
nominee of the Depository or to a successor Depository or to a
nominee of such successor Depository."
(b) Notwithstanding the provisions of Section 2.05 and
except as set forth in Section 2.11(c) or (d), the Global
Debenture of a series may be transferred, in whole but not in
part and in the manner provided in Section 2.05, only to
another nominee of the Depository for that series, a successor
Depository for that series selected or approved by the Company
or a nominee of that successor Depository.
(c) (i) An interest in any Global Debenture shall be
exchangeable at the option of the beneficial owner of
such interest in such Global Debenture for a
definitive Debenture or Debentures registered in the
name of any holder other than the Depository or its
nominee at any time following issuance of such Global
Debenture.
(ii) A beneficial owner of an interest in any Global
Debenture desiring to exchange such beneficial
interest for a definitive Debenture or Debentures
shall instruct the Depository, through the
Depository's direct or indirect participants or
otherwise, to request such exchange on such
beneficial owner's behalf and to provide a written
order containing registration instructions to the
Trustee. Upon receipt by the Trustee of electronic
or written instructions from the Depository on behalf
of such beneficial owner, the Trustee shall cause, in
accordance with the standing instructions and
procedures existing between the Trustee and the
Depository, the aggregate principal amount of such
Global Debenture to be reduced by the principal
amount of such beneficial interest so exchanged and
shall appropriately reflect such reduction of the
aggregate principal amount of this Global Debenture
as described in paragraph (iii) of this Section
2.11(c). Following such reduction, the Trustee shall
authenticate and deliver to such beneficial owner of
the transferee, as the case may be, a definitive
Debenture or Debentures previously executed by the
Company as described in Section 2.05(a) and
registered in such names and authorized denominations
as the Depository, pursuant to such instructions of
the beneficial owner, shall instruct the Trustee.
(iii) Upon any exchange of a portion of any
Global Debenture for a definitive Debenture or
Debentures, the Debenture Registrar shall reflect the
reduction of the principal amount of such Global
Debenture by the principal amount of such beneficial
interest so exchanged on the Debenture Register.
Until exchanged in full for definitive Debentures,
such Global Debenture shall in all respects be
entitled to the same benefits under the Indenture as
the definitive Debentures authenticated and delivered
hereunder.
<PAGE>
(d) (i) If and so long as the Debentures of any series
are issued as a Global Debenture, any definitive
Debenture or Debentures of such series shall be
exchangeable at the option of the registered holder
thereof for a beneficial interest in such Global
Debenture at any time following the exchange of such
Global Debenture for such definitive Debenture or
Debentures pursuant to Section 2.11(c).
(ii) A registered holder of a definitive Debenture or
Debentures desiring to exchange such definitive
Debenture or Debentures for a beneficial interest in
such Global Debenture shall instruct the Depository,
through the Depository's direct or indirect
participants or otherwise, to request such exchange
on such registered holder's behalf and to provide a
written order containing registration instructions to
the Trustee. Upon receipt by the Trustee of
electronic or written instructions from the
Depository, and upon presentation to the Trustee of
such definitive Debenture or Debentures, the Trustee
shall cause, in accordance with the standing
instructions and procedures existing between the
Trustee and the Depository, the aggregate principal
amount of such Global Debenture to be increased by
the principal amount of such definitive Debenture or
Debentures so exchanged and shall appropriately
reflect such increase of the aggregate principal
amount of the Global Debenture as described in
paragraph (iii) of this Section 2.11(d).
(iii) Upon any exchange of a definitive Debenture
or Debentures for a beneficial interest in such
Global Debenture, the Debenture Registrar shall
reflect the increase of the principal amount of such
Global Debenture by the principal amount of such
definitive Debenture or Debentures so exchanged on
the Debenture Register.
(e) If at any time the Depository for a series of
Debentures notifies the Company that it is unwilling or unable
to continue as Depository for that series or if at any time
the Depository for that series shall no longer be registered
or in good standing under the Exchange Act or other applicable
statute or regulation and a successor Depository for that
series is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such
condition, as the case may be, this Section 2.11 shall no
longer apply to the Debentures of that series and the Company
will execute and, subject to Section 2.05, the Trustee will
authenticate and deliver Debentures of that series in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to
the principal amount of the Global Debenture of that series in
exchange for such Global Debenture. In addition, the Company
may at any time determine that the Debentures of any series
shall no longer be represented by a Global Debenture and that
the provisions of this Section 2.11 shall no longer apply to
the Debentures of that series. In that event the Company
will execute and, subject to Section 2.05, the Trustee, upon
receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver
Debentures of that series in definitive registered form
without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the
Global Debenture of such series in exchange for such Global
Debenture. Upon the exchange of the Global Debenture for such
Debentures in definitive registered form without coupons, in
authorized denominations, the Global Debenture shall be
canceled by the Trustee. Such Debentures in definitive
registered form issued in exchange for the Global Debenture
pursuant to this Section 2.11(c) shall be registered in such
names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Debenture
Registrar. The Trustee shall deliver such Debentures to the
Depository for delivery to the persons in whose names such
Debentures are so registered.
ARTICLE THREE
Redemption of Debentures and Sinking Fund Provisions
SECTION 3.01. The Company may redeem the Debentures of any
series issued hereunder on and after the dates and in
accordance with the terms established for that series pursuant
to Section 2.01 hereof.
SECTION 3.02. (a) In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a
portion of the Debentures of any series in accordance with the
right reserved so to do, it shall give notice of such
redemption to holders of the Debentures of the series to be
redeemed by mailing, first class postage prepaid, a notice of
such redemption not less than 30 days and not more than 60 days
before the date fixed for redemption of that series to such
holders at their last addresses as they shall appear upon the
Debenture Register. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been
duly given, whether or not the registered holder receives the
notice. In any case, failure duly to give such notice to the
holder of any Debenture of any series designated for redemption
in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of
any other Debentures of that series or any other series. In
the case of any redemption of Debentures prior to the
expiration of any restriction on such redemption provided in
the terms of such Debentures or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with any such restriction.
<PAGE>
Each such notice of redemption shall specify the date
fixed for redemption and the redemption price at which
Debentures of that series are to be redeemed, and shall state
that payment of the redemption price of the Debentures to be
redeemed will be made at the office or agency of the Company in
the Borough of Manhattan, the City and State of New York, upon
presentation and surrender of such Debentures, that interest
accrued to the date fixed for redemption will be paid as
specified in that notice, that from and after that date
interest will cease to accrue, and that the redemption is for a
sinking fund, if such is the case. If less than all the
Debentures of a series are to be redeemed, the notice to the
holders of Debentures of that series to be redeemed shall
specify the particular Debentures to be so redeemed. In case
any Debenture is to be redeemed in part only, the notice which
relates to such Debenture shall state the portion of the
principal amount thereof to be redeemed, and shall state that
on and after the redemption date, upon surrender of such
Debenture, a new Debenture or Debentures of that series in
principal amount equal to the unredeemed portion thereof will
be issued.
(b) The Company shall give the Trustee at least 45 days'
advance notice of the date fixed for redemption (unless shorter
notice shall be required by the Trustee) as to the aggregate
principal amount of Debentures of the series to be redeemed,
and thereupon the Trustee shall select, by lot or in such other
manner as it shall deem appropriate and fair in its discretion
and which may provide for the selection of a portion or
portions (equal to $25 or any integral multiple thereof) of the
principal amount of such Debentures of a denomination larger
than $25, the Debentures to be redeemed and shall thereafter
promptly notify the Company in writing of the numbers of the
Debentures to be redeemed.
The Company may, if and whenever it shall so elect, by
delivery of instructions signed on its behalf by its President
or any Vice President, instruct the Trustee or any paying agent
to call all or any part of the Debentures of a particular
series for redemption and to give notice of redemption in the
manner set forth in this Section, such notice to be in the name
of the Company or its own name as the Trustee or such paying
agent may deem advisable. In any case in which notice of
redemption is to be given by the Trustee or any such paying
agent, the Company shall deliver or cause to be delivered to,
or permit to remain with, the Trustee or such paying agent, as
the case may be, such Debenture Register, transfer books or
other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give
any notice by mail that may be required under the provisions of
this Section.
SECTION 3.03. (a) If the giving of notice of redemption
shall have been completed as above provided, the Debentures or
portions of Debentures of the series to be redeemed specified
in such notice shall become due and payable on the date and at
the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for
redemption, and interest on such Debentures or portions of
Debentures shall cease to accrue on and after the date fixed
for redemption, unless the Company shall default in the payment
of such redemption price and accrued interest with respect to
any such Debenture or portion thereof. On presentation and
surrender of such Debentures on or after the date fixed for
redemption at the place of payment specified in the notice,
such Debentures shall be paid and redeemed at the applicable
redemption price for such series, together with interest
accrued thereon to the date fixed for redemption (but if the
date fixed for redemption is an interest payment date, the
interest installment payable on such date shall be payable to
the registered holder at the close of business on the
applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Debenture of such series
which is to be redeemed in part only, the Company shall
execute, the Trustee shall authenticate and the office or
agency where the Debenture is presented shall deliver to the
holder thereof, at the expense of the Company, a new Debenture
or Debentures of the same series, of authorized denominations
in principal amount equal to the unredeemed portion of the
Debenture so presented.
SECTION 3.04. The provisions of Sections 3.04, 3.05 and
3.06 shall apply to any sinking fund for the retirement of
Debentures of a series, except as otherwise specified as
contemplated by Section 2.01 for Debentures of that series.
The minimum amount of any sinking fund payment provided
for by the terms of Debentures of any series is herein referred
to as a "mandatory sinking fund payment," and any payment in
excess of such minimum amount provided for by the terms of
Debentures of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of
Debentures of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section
3.05. Each sinking fund payment shall be applied to the
redemption of Debentures of any series as provided for by the
terms of Debentures of that series.
SECTION 3.05. The Company (i) may deliver Outstanding
Debentures of a series (other than any previously called for
redemption) and (ii) may apply as a credit Debentures of a
series which have been redeemed either at the election of the
Company pursuant to the terms of such Debentures or through the
application of permitted optional sinking fund payments
pursuant to the terms of such Debentures, in each case in
satisfaction <PAGE>
of all or any part of any sinking fund payment with respect to
the Debentures of such series required to be made pursuant to
the terms of such Debentures as provided for by the terms of
that series; provided that such Debentures have not been
previously so credited. Such Debentures shall be received and
credited for such purpose by the Trustee at the redemption
price specified in such Debentures for redemption through
operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking
fund payment date for any series of Debentures, the Company
will deliver to the Trustee an Officers' Certificate specifying
the amount of the next ensuing sinking fund payment for that
series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by delivering and
crediting Debentures of that series pursuant to Section 3.05
and the basis for such credit and will, together with such
Officers' Certificate, deliver to the Trustee any Debentures to
be so delivered. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the
Debentures to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.02 and cause notice of the
redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 3.02.
Such notice having been duly given, the redemption of such
Debentures shall be made upon the terms and in the manner
stated in Section 3.03.
ARTICLE FOUR
Particular Covenants of the Company
The Company covenants and agrees for each series of the
Debentures as follows:
SECTION 4.01. The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and
interest on the Debentures of that series at the time and place
and in the manner provided herein and established with respect
to such Debentures.
SECTION 4.02. So long as any series of the Debentures
remains outstanding, the Company agrees to maintain an office
or agency in the Borough of Manhattan, the City and State of
New York (which, unless changed, shall be a corporate trust
office or agency of the Trustee), with respect to each such
series and at such other location or locations as may be
designated as provided in this Section 4.02, where
(i) Debentures of that series may be presented for payment,
(ii) Debentures of that series may be presented as hereinabove
authorized for registration of transfer and exchange and
(iii) notices and demands to or upon the Company in respect of
the Debentures of that series and this Indenture may be given
or served, such designation to continue with respect to such
office or agency until the Company shall, by written notice
signed by its President or a Vice President and delivered to
the Trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such
presentations, notices and demands.
SECTION 4.03. (a) If the Company shall appoint one or
more paying agents, other than the Trustee, for all or any
series of the Debentures, the Company will cause each such
paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section, that it will:
(1) hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or
interest on the Debentures of that series (whether such
sums have been paid to it by the Company or by any other
obligor of such Debentures) in trust for the benefit of
the persons entitled thereto;
(2) give the Trustee notice of any failure by the
Company (or by any other obligor of such Debentures) to
make any payment of the principal of (and premium, if any)
or interest on the Debentures of that series when the same
shall be due and payable;
(3) at any time during the continuance of any
failure referred to in the preceding paragraph (a)(2)
above, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such
paying agent; and
(4) perform all other duties of paying agent as set
forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to any series of the Debentures, it will, on or before
each due date of the principal of (and premium, if any) or
interest on Debentures of that series, set aside, segregate and
hold in trust for the benefit of the persons entitled thereto a
sum sufficient to pay such principal (and premium, if any) or
interest so becoming due on Debentures of that series until
such sums <PAGE>
shall be paid to such persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of such
action, or any failure (by it or any other obligor on such
Debentures) to take such action. Whenever the Company shall
have one or more paying agents for any series of Debentures, it
will, prior to each due date of the principal of (and premium,
if any) or interest on any Debentures of that series, deposit
with the paying agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to
be held in trust for the benefit of the persons entitled to
such principal, premium or interest, and (unless such paying
agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary
notwithstanding, (i) the agreement to hold sums in trust as
provided in this Section is subject to the provisions of
Section 11.06 and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or direct any paying
agent to pay, to the Trustee all sums held in trust by the
Company or such paying agent, such sums to be held by the
Trustee upon the same terms and conditions as those upon which
such sums were held by the Company or such paying agent; and,
upon such payment by any paying agent to the Trustee, such
paying agent shall be released from all further liability with
respect to such sums.
SECTION 4.04. The Company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in the
manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
SECTION 4.05. The Company will not, while any of the
Debentures remain outstanding, consolidate with, merge into,
merge into itself or sell or convey all or substantially all of
its property to any other company, unless the provisions of
Article Ten hereof are complied with.
SECTION 4.06. If there shall have occurred any event that
would, with the giving of notice or the passage of time, or
both, constitute an Event of Default under the Indenture, or
the Company shall have given notice of its selection of an
extended interest payment period as provided in the Indenture
and such period, or any extension thereof, shall be continuing,
the Company will not, until all defaulted interest on the
Debentures and all interest accrued on the Debentures during an
extended interest payment period and all principal and premium,
if any, then due and payable on the Debentures shall have been
paid in full, (i) declare, set aside or pay any dividend or
distribution on any capital stock of the Company, except for
dividends or distributions in shares of its capital stock or in
rights to acquire shares of its capital stock, or (ii)
repurchase, redeem or otherwise acquire, or make any sinking
fund payment for the purchase or redemption of, any shares of
its capital stock (except by conversion into or exchange for
shares of its capital stock and except for a redemption,
purchase or other acquisition of shares of its capital stock
made for the purpose of an employee incentive plan or benefit
plan of the Company or any of its subsidiaries and except for
mandatory redemption or sinking fund payments with respect to
any series of preferred stock of the Company that are subject
to mandatory redemption or sinking fund requirements, provided
that the aggregate stated value of all such series outstanding
at the time of any such payment does not exceed five percent of
the aggregate of (1) the total principal amount of all bonds or
other securities representing secured indebtedness issued or
assumed by the Company and then outstanding and (2) the capital
and surplus of the Company to be stated on the books of account
of the Company after giving effect to such payment); provided,
however, that any moneys deposited in any sinking fund and not
in violation of this provision may thereafter be applied to the
purchase or redemption of such preferred stock in accordance
with the terms of such sinking fund without regard to the
restrictions contained in this Section.
ARTICLE FIVE
Debentureholders' Lists and Reports by the Company
and the Trustee
SECTION 5.01. The Company will furnish or cause to be
furnished to the Trustee (a) on a monthly basis on each regular
record date (as defined in Section 2.03) a list, in such form
as the Trustee may reasonably require, of the names and
addresses of the holders of each series of Debentures as of
such regular record date; provided that the Company shall not
be obligated to furnish or cause to furnish such list at any
time that the list shall not differ in any respect from the
most recent list furnished to the Trustee by the Company and
(b) at such other times as the Trustee may request in writing
within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
provided, however, no such list need be furnished for any
series for which the Trustee shall be the Debenture Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as
to the names and addresses of the holders of Debentures
contained in the most recent list furnished to it as provided
in Section 5.01 and as to the names and addresses of holders of
Debentures received by the Trustee in its capacity as Debenture
Registrar (if acting in such capacity).
<PAGE>
(b) The Trustee may destroy any list furnished to it as
provided in Section 5.01 upon receipt of a new list so
furnished.
(c) In case three or more holders of Debentures of a
series (hereinafter referred to as "applicants") apply in
writing to the Trustee, and furnish to the Trustee reasonable
proof that each such applicant has owned a Debenture for a
period of at least six months preceding the date of such
application, and such application states that the applicants
desire to communicate with other holders of Debentures of that
series or holders of all Debentures with respect to their
rights under this Indenture or under such Debentures, and is
accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then
the Trustee shall, within five Business Days after the receipt
of such application, at its election, either:
(1) afford to such applicants access to the
information preserved at the time by the Trustee in
accordance with the provisions of Section 5.02(a); or
(2) inform such applicants as to the approximate
number of holders of Debentures of such series or of all
Debentures, as the case may be, whose names and addresses
appear in the information preserved at the time by the
Trustee, in accordance with the provisions of Section
5.02(a), and as to the approximate cost of mailing to such
Debentureholders the form of proxy or other communication,
if any, specified in such application.
(d) If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon
the written request of such applicants, mail to each holder of
that series or of all Debentures, as the case may be, whose
name and address appears in the information preserved at the
time by the Trustee in accordance with the provisions of
Section 5.02(a), a copy of the form of proxy or other
communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within
five days after such tender, the Trustee shall mail to such
applicants and file with the Securities and Exchange Commission
(the "Commission"), together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion
of the Trustee, such mailing would be contrary to the best
interests of the holders of Debentures of that series or of
all Debentures, as the case may be, or would be in violation of
applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such
Debentureholders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise, the
Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(e) Each and every holder of the Debentures, by receiving
and holding the same, agrees with the Company and the Trustee
that neither the Company nor the Trustee nor any paying agent
nor any Debenture Registrar shall be held accountable by reason
of the disclosure of any such information as to the names and
addresses of the holders of Debentures in accordance with the
provisions of Section 5.02(c), regardless of the source from
which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material
pursuant to a request made under Section 5.02(c).
SECTION 5.03. (a) The Company covenants and agrees to
file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time
to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act, in respect
of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules
and regulations.
(b) The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect
to compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to
time by such rules and regulations. Delivery of such reports,
documents and information to the Trustee under this subsection
(b) and Section 5.03(a) is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive
notice of any information contained therein or determinable
from information contained therein, including the Company's
compliance with any of the covenants hereunder.<PAGE>
(c)The Company covenants and agrees to transmit by mail,
first-class postage prepaid, or reputable overnight delivery
service which provides for evidence of receipt, to the
Debentureholders, as their names and addresses appear upon the
Debenture Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to
Section 5.03(a) and (b) as may be required by rules and
regulations prescribed from time to time by the Commission.
(d) The Company covenants and agrees to furnish to the
Trustee, on or before May 15 in each calendar year in which any
of the Debentures are outstanding, or on or before such other
day in each calendar year as the Company and the Trustee may
from time to time agree upon, a Certificate as to his or her
knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this
subsection (d), such compliance shall be determined without
regard to any period of grace or requirement of notice provided
under this Indenture.
(e) The Company covenants and agrees, during any calendar
year in which original issue discount has accrued on
Outstanding Debentures, to file with the Trustee promptly at
the end of each such calendar year a written notice specifying
the amount of original issue discount (including daily rates
and accrual periods) accrued on Outstanding Debentures as of
the end of such year.
SECTION 5.04. (a) On or before July 15 in each year in
which any of the Debentures are outstanding, the Trustee shall
transmit by mail, first-class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the
Debenture Register, a brief report dated as of the preceding
May 15, with respect to any of the following events which may
have occurred within the previous 12 months (but if no such
event has occurred within such period no report need be
transmitted):
(1) any change to its eligibility under Section
7.09, and its qualifications under Section 7.08;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of
Section 7.08(c);
(3) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as
such) which remain unpaid on the date of such report, and
for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Debentures, on any
property or funds held or collected by it as Trustee if
such advances so remaining unpaid aggregate more than 1/2
of 1% of the principal amount of the Debentures
outstanding on the date of such report;
(4) any change to the amount, interest rate and
maturity date of all other indebtedness owing by the
Company, or by any other obligor on the Debentures, to the
Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as
collateral security therefor, except any indebtedness
based upon a creditor relationship arising in any manner
described in paragraphs (2), (3), (4) or (6) of 7.13(b);
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(6) any release, or release and substitution, of
property subject to the lien, if any, of this Indenture
(and the consideration thereof, if any) which it has not
previously reported;
(7) any additional issue of Debentures which the
Trustee has not previously reported; and
(8) any action taken by the Trustee in the
performance of its duties under this Indenture which it
has not previously reported and which in its opinion
materially affects the Debentures or the Debentures of any
series, except any action in respect of a default, notice
of which has been or is to be withheld by it in accordance
with the provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first-class
postage prepaid, to the Debentureholders, as their names and
addresses appear upon the Debenture Register, a brief report
with respect to the character and amount of any advances (and
if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee as such
since the date of the last report transmitted pursuant to the
provisions of subsection (a) of this Section (or if no such
report has yet been so transmitted, since the date of execution
of this Indenture), for the reimbursement of which it claims or
may claim a lien or charge prior to that of the Debentures of
any series on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to
this <PAGE>
subsection if such advances remaining unpaid at any time
aggregate more than 10% of the principal amount of Debentures
of such series outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with
the Company, with each stock exchange upon which any Debentures
are listed (if so listed) and also with the Commission. The
Company agrees to notify the Trustee when any Debentures become
listed on any stock exchange.
ARTICLE SIX
Remedies of the Trustee and Debentureholders
on Event of Default
SECTION 6.01. (a) Whenever used herein with respect to
Debentures of a particular series, "Event of Default" means any
one or more of the following events which has occurred and is
continuing:
(1) default in the payment of any installment of
interest upon any of the Debentures of that series, as and
when the same shall become due and payable, and
continuance of such default for a period of 10 days;
(2) default in the payment of the principal of (or
premium, if any, on) any of the Debentures of that series
as and when the same shall become due and payable, whether
at maturity, upon redemption, by declaration or otherwise,
or in any payment required by any sinking or analogous
fund established with respect to that series;
(3) failure on the part of the Company duly to
observe or perform any other of the covenants or
agreements on the part of the Company with respect to that
series contained in such Debentures or otherwise
established with respect to that series of Debentures
pursuant to Section 2.01 hereof or contained in this
Indenture (other than a covenant or agreement which has
been expressly included in this Indenture solely for the
benefit of one or more series of Debentures other than
such series) for a period of 90 days after the date on
which written notice of such failure, requiring the same
to be remedied and stating that such notice is a "Notice
of Default" hereunder, shall have been given to the
Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by the holders of at
least 25% in principal amount of the Debentures of that
series at the time outstanding;
(4) a decree or order by a court having jurisdiction
in the premises shall have been entered adjudging the
Company a bankrupt or insolvent, or approving as properly
filed a petition seeking liquidation or reorganization of
the Company under the Federal Bankruptcy Code or any other
similar applicable federal or state law, and such decree
or order shall have continued unvacated and unstayed for a
period of 90 days; an involuntary case shall be commenced
under such Code in respect of the Company and shall
continue undismissed for a period of 90 days or an order
for relief in such case shall have been entered; or a
decree or order of a court having jurisdiction in the
premises shall have been entered for the appointment on
the ground of insolvency or bankruptcy of a receiver,
custodian, liquidator, trustee or assignee in bankruptcy
or insolvency of the Company or of its property, or for
the winding up or liquidation of its affairs, and such
decree or order shall have remained in force unvacated and
unstayed for a period of 90 days; or
(5) the Company shall institute proceedings to be
adjudicated a voluntary bankrupt, shall consent to the
filing of a bankruptcy proceeding against it, shall file a
petition or answer or consent seeking liquidation or
reorganization under the Federal Bankruptcy Code or other
similar applicable federal or state law, shall consent to
the filing of any such petition or shall consent to the
appointment on the ground of insolvency or bankruptcy of a
receiver or custodian or liquidator or trustee or assignee
in bankruptcy or insolvency of it or of its property, or
shall make an assignment for the benefit of creditors.
(b) In each and every such case, the Company shall file
with the Trustee written notice of the occurrence of any Event
of Default within five Business Days of the Company's becoming
aware of any such Event of Default, and unless the principal of
all the Debentures of that series shall have already become due
and payable, either the Trustee or the holders of not less than
25% in aggregate principal amount of the Debentures of that
series then outstanding hereunder, by notice in writing to the
Company (and to the Trustee if given by such Debentureholders),
may declare the principal of all the Debentures of that series
to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due
and payable, anything contained in this Indenture or in the
Debentures of that series or established with respect to that
series pursuant to Section 2.01 hereof to the contrary
notwithstanding.
<PAGE>
(c) The provisions of subsection (b) of this Section,
however, are subject to the condition that if, at any time
after the principal of the Debentures of that series shall have
been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest upon all the Debentures of
that series and the principal of (and premium, if any, on) any
and all Debentures of that series which shall have become due
otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that such
payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in
the Debentures of that series to the date of such payment or
deposit) and the amount payable to the Trustee under Section
7.06, and any and all defaults under the Indenture, other than
the nonpayment of principal on Debentures of that series which
shall not have become due by their terms, shall have been
remedied or waived as provided in Section 6.06, then and in
every such case the holders of a majority in aggregate
principal amount of the Debentures of that series then
outstanding, by written notice to the Company and to the
Trustee, may rescind and annul such declaration and its
consequences; but no such rescission and annulment shall extend
to or shall affect any subsequent default, or shall impair any
right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce
any right with respect to Debentures of that series under this
Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and
powers of the Company and the Trustee shall continue as though
no such proceedings had been taken.
SECTION 6.02. (a) The Company covenants that (1) in case
default shall be made in the payment of any installment of
interest on any of the Debentures of a series, or and such
default shall have continued for a period of 10 Business Days,
or (2) in case default shall be made in the payment of the
principal of (or premium, if any, on) any of the Debentures of
a series when the same shall have become due and payable,
whether upon maturity of the Debentures of a series or upon
redemption or upon declaration or otherwise, or in any payment
required by any sinking or analogous fund established with
respect to that series as and when the same shall have become
due and payable, then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the
Debentures of that series, the whole amount that then shall
have become due and payable on all such Debentures for
principal (and premium, if any) or interest, or both, as the
case may be, with interest upon the overdue principal (and
premium, if any) and (to the extent that payment of such
interest is enforceable under applicable law) upon overdue
installments of interest at the rate per annum expressed in the
Debentures of that series; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and
expenses of collection, and the amount payable to the Trustee
under Section 7.06.
(b) In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company
or other obligor upon the Debentures of that series and collect
in the manner provided by law out of the property of the
Company or other obligor upon the Debentures of that series
wherever situated the moneys adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement,
composition or other judicial proceedings affecting the
Company, any other obligor on such Debentures or the creditors
or property of either, the Trustee shall have power to
intervene in such proceedings and take any action therein that
may be permitted by the court and shall (except as may be
otherwise provided by law) be entitled to file such proofs of
claim and other papers and documents as may be necessary or
advisable in order to have the claims of the Trustee and of the
holders of Debentures of such series allowed for the entire
amount due and payable by the Company or such other obligor
under the Indenture at the date of institution of such
proceedings and for any additional amount which may become due
and payable by the Company or such other obligor after such
date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the
same after the deduction of the amount payable to the Trustee
under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of
the holders of Debentures of that series to make such payments
to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to such
Debentureholders, to pay to the Trustee any amount due it under
Section 7.06.
(d) All rights of action and of asserting claims under
this Indenture, or under any of the terms established with
respect to Debentures of that series, may be enforced by the
Trustee without the possession of any of such Debentures, or
the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an
express trust, and <PAGE>
any recovery of judgment shall, after provision for payment to
the Trustee of any amounts due under Section 7.06, be for the
ratable benefit of the holders of the Debentures of that
series.
In case of an Event of Default hereunder, the Trustee may
in its discretion proceed to protect and enforce the rights
vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect
and enforce any of such rights, either at law, in equity in
bankruptcy or otherwise, whether for the specific enforcement
of any covenant or agreement contained in the Indenture or in
aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize, consent to, accept or adopt on behalf of
any Debentureholder any plan of reorganization, arrangement,
adjustment or composition affecting the Debentures of that
series or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Debentureholder
in any such proceeding.
SECTION 6.03. Any moneys collected by the Trustee
pursuant to Section 6.02 with respect to a particular series of
Debentures shall be applied in the order following, at the date
or dates fixed by the Trustee and, in case of the distribution
of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the several Debentures of that
series, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of
collection and of all amounts payable to the Trustee
under Section 7.06;
SECOND: To the payment of the amounts then due
and unpaid upon Debentures of that series for
principal (and premium, if any) and interest, in
respect of which or for the benefit of which such
money has been collected, ratably, without preference
or priority of any kind, according to the amounts due
and payable on such Debentures for principal (and
premium, if any) and interest, respectively; and
THIRD: To the Company.
SECTION 6.04. No holder of any Debenture of any series
shall have any right by virtue or by availing of any provision
of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless such holder previously
shall have given to the Trustee written notice of an Event of
Default and of the continuance thereof with respect to
Debentures of that series specifying such Event of Default, as
hereinbefore provided, and unless also the holders of not less
than 25% in aggregate principal amount of the Debentures of
such series then outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding
in its own name as trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity, shall have failed to
institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by the
taker and holder of every Debenture of that series with every
other such taker and holder and the Trustee, that no one or
more holders of Debentures of that series shall have any right
in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other of such Debentures, or to
obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Debentures
of that series. For the protection and enforcement of the
provisions of this Section, each and every Debentureholder and
the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provisions of this Indenture,
however, the right of any holder of any Debenture to receive
payment of the principal of (and premium, if any) and interest
on such Debenture, as therein provided, on or after the
respective due dates expressed in such Debenture (or in the
case of redemption, on the redemption date), or to institute
suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or
affected without the consent of such holder.
SECTION 6.05. (a) All powers and remedies given by this
Article to the Trustee or to the Debentureholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive
of any others thereof or of any other powers and remedies
available to the Trustee or the holders of the Debentures, by
judicial proceedings or otherwise, to enforce the performance
or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such
Debentures.
<PAGE>
(b) No delay or omission of the Trustee or of any holder
of any of the Debentures to exercise any right or power
accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be
construed as a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article or by law to the Trustee
or to the Debentureholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by
the Debentureholders.
SECTION 6.06. The holders of a majority in aggregate
principal amount of the Debentures of any series at the time
outstanding, determined in accordance with Section 8.04, shall
have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the
Trustee with respect to that series; provided, however, that
such direction shall not be in conflict with any rule of law or
with this Indenture or unduly prejudicial to the rights of
holders of Debentures of any other series at the time
outstanding determined in accordance with Section 8.04 not
parties thereto. Subject to the provisions of Section 7.01,
the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible
Officer or Officers of the Trustee, determine that the
proceeding so directed might involve the Trustee in personal
liability. The holders of a majority in aggregate principal
amount of the Debentures of all series at the time outstanding
affected thereby, determined in accordance with Section 8.04,
may on behalf of the holders of all of the Debentures of that
series waive any past default in the performance of any of the
covenants contained herein or established pursuant to Section
2.01 with respect to that series and its consequences, except
a default in the payment of the principal of, or premium, if
any, or interest on, any of the Debentures of that series as
and when the same shall become due by the terms of such
Debentures or a call for redemption of Debentures of that
series, which default may be waived by the unanimous consent of
the holders affected. Upon any such waiver, the default
covered thereby shall be deemed to be cured for all purposes of
this Indenture and the Company, the Trustee and the holders of
the Debentures of that series shall be restored to their
former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after the
occurrence of a default with respect to a particular series,
transmit by mail, first class postage prepaid, to the holders
of Debentures of that series, as their names and addresses
appear upon the Debenture Register, notice of all defaults with
respect to that series known to the Trustee, unless such
defaults shall have been cured or waived before the giving of
such notice (the term "defaults" for the purposes of this
Section being hereby defined to be the events specified in
subsections (1), (2), (3), (4) and (5) of Section 6.01(a), not
including any grace periods provided for therein and
irrespective of the giving of notice provided for by subsection
(3) of Section 6.01(a)); provided, that, except in the case of
default in the payment of the principal of (or premium, if any)
or interest on any of the Debentures of that series or in the
payment of any sinking fund installment established with
respect to that series, the Trustee shall be protected in
withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the
interests of the holders of Debentures of that series; provided
further, that in the case of any default of the character
specified in Section 6.01(a)(3) with respect to Debentures of
that series, no such notice to the holders of the Debentures
of that series shall be given until at least 30 days after the
occurrence thereof.
The Trustee shall not be deemed to have knowledge of any
default, except (i) a default under Section 6.01(a)(1) or
(a)(2) as long as the Trustee is acting as paying agent for
such series of Debentures or (ii) any default as to which the
Trustee shall have received written notice or a Responsible
Officer charged with the administration of this Indenture shall
have actual knowledge or obtained written notice.
SECTION 6.08. All parties to this Indenture agree, and
each holder of any Debentures by his or her acceptance thereof
shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by the
Trustee, any suit instituted by any Debentureholder, or group
of Debentureholders, holding more than 10% in aggregate
principal amount of the outstanding Debentures of any series,
or any suit instituted by any Debentureholder for the
enforcement of the payment of the principal of (or premium, if
any) or interest on any Debenture of such series, on or after
the respective due dates expressed in such Debenture or
established pursuant to this Indenture.
ARTICLE SEVEN
Concerning the Trustee
SECTION 7.01. (a) The Trustee, prior to the occurrence
of an Event of Default with respect to Debentures of a series
and after the curing of all Events of Default with respect to
Debentures of that series which <PAGE>
may have occurred, shall undertake to perform with respect to
Debentures of that series such duties and only such duties as
are specifically set forth in this Indenture, and no implied
covenants shall be read into this Indenture against the
Trustee. In case an Event of Default with respect to
Debentures of a series has occurred (which has not be cured or
waived), the Trustee shall exercise with respect to Debentures
of that series such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in
their exercise, as a prudent individual would exercise or use
under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful
misconduct, except that:
(1) prior to the occurrence of an Event of
Default with respect to Debentures of a series and
after the curing and waiving of all such Events of
Default with respect to that series which may have
occurred:
(i) the duties and obligations of the
Trustee shall with respect to Debentures of that
series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be
liable with respect to Debentures of that series
except for the performance of such duties and
obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on the
part of the Trustee, the Trustee may with respect to
Debentures of that 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 Trustee and conforming
to the requirements of this Indenture; but in the
case of any such certificates or opinions which by
any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or
not they conform to the requirements of this
Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts
stated therein);
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of
the holders of not less than a majority in principal
amount of the Debentures of any series at the time
outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with
respect to the Debentures of that series; and
(4) none of the provisions contained in this
Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur or risk personal
financial liability in the performance of any of its
duties or in the exercise of any of its rights or
powers, if there is reasonable ground for believing
that the repayment of such funds or liability is not
reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is
not reasonably assured to it.
(c) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section
7.01.
SECTION 7.02. Except as otherwise provided in Section
7.01:
(a) The Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, security or other paper or
document believed by it to be genuine and to have been signed
or presented by the property party or parties;
(b) Any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by a
Board Resolution or an instrument signed in the name of the
Company by the President or any Vice President and by the
Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer (unless other evidence in respect thereof
is specifically prescribed herein);
<PAGE>
(c) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) is entitled to receive and may, in the
absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) The Trustee may consult with counsel of its selection
and the advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of
any action taken or suffered or omitted hereunder in good faith
and in reliance thereon;
(e) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at
the request, order or direction of any of the Debentureholders,
pursuant to the provisions of this Indenture, unless such
Debentureholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing
herein contained shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default with
respect to a series of the Debentures (which has not been cured
or waived) to exercise with respect to Debentures of that
series such of the rights and powers vested in it by this
Indenture, and to use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(f) If an Event of Default shall have occurred and be
continuing, the Trustee shall be under no obligation to follow
any request, order or direction of the Company if in the
reasonable judgment of the Trustee the following of such
request, order or direction would not be in the best interests
of all the holders;
(g) The Trustee shall not be liable for any action taken
or omitted to be taken by it in good faith and believed by it
to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture;
(h) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond,
security, or other papers or documents, unless requested in
writing to do so by the holders of not less than a majority in
principal amount of the outstanding Debentures of the
particular series affected thereby (determined as provided in
Section 8.04); provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a
condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Company or, if paid by
the Trustee, shall be repaid by the Company upon demand;
(i) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(j) Any application by the Trustee for written
instructions from the Company may, at the option of the
Trustee, set forth in writing any action proposed to be taken
or omitted by the Trustee under this Indenture and the date on
and/or after which such action shall be taken or such omission
shall be effective. The Trustee shall not be liable for any
action or omission of the Trustee in accordance with a proposal
included in such application on or after the date specified in
such application (which date shall not be less than three
Business Days after the date any officer of the Company
actually receives such application, unless any such officer
shall have consented in writing to any earlier date) unless
prior to taking any such action (or the effective date in the
case of an omission), the Trustee shall have received written
instructions in response to such application specifying the
action to be taken or omitted.
SECTION 7.03. (a) The recitals contained herein and in
the Debentures (other than the Certificate of Authentication on
the Debentures) shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the
correctness of the same.
(b) The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debentures or of the
proceeds of the Debentures, or for the use or application of
any moneys paid over by the Trustee in accordance with any
provision of this Indenture or established pursuant to Section
2.01, or for the use or application of any moneys received by
any paying agent other than the Trustee.
<PAGE>
SECTION 7.04. The Trustee or any paying agent or
Debenture Registrar, in its individual or any other capacity,
may become the owner or pledgee of Debentures with the same
rights it would have if it were not Trustee, paying agent or
Debenture Registrar.
SECTION 7.05. Subject to the provisions of Section 11.06,
all moneys received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds
except to the extent required by law. The Trustee shall be
under no liability for interest on any moneys received by it
hereunder except such as it may agree with the Company to pay
thereon.
SECTION 7.06. (a) The Company covenants and agrees to
pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as the Company and the Trustee
may agree upon (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust) for all services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of
any of the powers and duties hereunder of the Trustee, and the
Company will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of
this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons
not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad
faith. The Company also covenants to indemnify the Trustee
(and its officers, agents, directors and employees) for, and to
hold it harmless against, any loss, damage, claim, liability or
expense incurred without negligence or bad faith on the part of
the Trustee and arising out of or in connection with the
acceptance or administration of this trust, including the costs
and expenses of defending itself against any claim of liability
in the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse
the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive
the termination of this Indenture. Such additional
indebtedness shall be a senior lien to that of the Debentures
upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders
of particular Debentures, and the Debentures are hereby
subordinated to each such senior lien.
(c) When the Trustee incurs expenses or renders services
in connection with an Event of Default, the expenses (including
the reasonable charges and expenses of its counsel) and
compensation for its services are intended to constitute
expenses of administration under applicable federal or state
bankruptcy, insolvency or similar law.
SECTION 7.07. Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering
or omitting to take any action hereunder, it shall be entitled
to receive, and such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence
of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively provided and established by an
Officers' Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted to be taken by it under
the provisions of this Indenture upon the faith thereof.
SECTION 7.08. If the Trustee has acquired or shall
acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest
or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this
Indenture.
SECTION 7.09. There shall at all times be a Trustee with
respect to the Debentures issued hereunder which shall at all
times be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
other person permitted to act as trustee by the Commission,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million
dollars, and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid
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. The Company may not, nor may any person directly or
indirectly controlling, controlled by, or under common control
with the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in
Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter
appointed may at any time resign with respect to the Debentures
of one or more series by giving written notice thereof to the
Company and by <PAGE>
transmitting notice of resignation by mail, first-class postage
prepaid, to the Debentureholders of that series, as their
names and addresses appear upon the Debenture Register. Upon
receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Debentures
of that series by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30
days after the mailing of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with
respect to Debentures of that series, or any Debentureholder
of that series who has been a bona fide holder of a Debenture
or Debentures for at least six months may, subject to the
provisions of Section 6.08, on behalf of himself and all others
similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the
provisions of Section 7.08(a) after written request
therefor by the Company or by any Debentureholder who has
been a bona fide holder of a Debenture or Debentures for
at least six months; or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 and shall
fail to resign after written request therefor by the
Company or by any such Debentureholder; or
(3) the Trustee shall become incapable of acting,
shall be adjudged a bankrupt or insolvent, a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove
the Trustee with respect to all Debentures and appoint a
successor trustee by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee, or, subject to the provisions of
Section 6.08, unless the Trustee's duty to resign is stayed as
provided herein, any Debentureholder who has been a bona fide
holder of a Debenture or Debentures for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal
amount of the Debentures of any series at the time outstanding
may at any time remove the Trustee with respect to that series
and appoint a successor trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee with respect to the
Debentures of a series pursuant to any of the provisions of
this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section
7.11.
(e) Any successor trustee appointed pursuant to this
Section may be appointed with respect to the Debentures of one
or more series or all of such series, and at any time there
shall be only one Trustee with respect to the Debentures of any
particular series.
SECTION 7.11. (a) In case of the appointment hereunder
of a successor trustee with respect to all Debentures, every
such successor trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor trustee all the
rights, powers, and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor trustee all
property and money held by such retiring Trustee hereunder,
subject to any prior lien provided for in Section 7.06(b).
(b) In case of the appointment hereunder of a successor
trustee with respect to the Debentures of one or more (but not
all) series, the Company, the retiring Trustee and each
successor trustee with respect to the Debentures of one or more
series shall execute and deliver an indenture supplemental
hereto wherein each successor trustee shall accept such
appointment and which shall (1) contain such provisions as
shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Debentures of that or those <PAGE>
series to which the appointment of such successor trustee
relates, (2) contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Debentures of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) add to or change any of the provisions
of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and
upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee
shall with respect to the Debentures of that or those series to
which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the
Trustee under this Indenture, and each such successor trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Debentures of that or
those series to which the appointment of such successor trustee
relates; but, on request of the Company or any successor
trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor trustee, to the extent contemplated
by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the Debentures
of that or those series to which the appointment of such
successor trustee relates.
(c) Upon request of any such successor trustee or
retiring Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers
and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No successor trustee shall accept its appointment
unless at the time of such acceptance such successor trustee
shall be qualified and eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee
as provided in this Section, the Company shall transmit notice
of the succession of such trustee hereunder by mail, first-
class postage prepaid, to the Debentureholders, as their names
and addresses appear upon the Debenture Register. If the
Company fails to transmit such notice within 10 days after
acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be transmitted at
the expense of the Company.
SECTION 7.12. Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated,
any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the
provisions of Section 7.08 and eligible under the provisions of
Section 7.09, without the execution or filing of any paper or
any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any
Debentures shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Debentures so authenticated with
the same effect as if such successor Trustee had itself
authenticated such Debentures.
SECTION 7.13. If and when the Trustee shall become a
creditor of the Company (or any other obligor upon the
Debentures), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims
against the Company (or any other obligor upon the Debentures).
ARTICLE EIGHT
Concerning the Debentureholders
SECTION 8.01. Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in
aggregate principal amount of the Debentures of a particular
series may take any action (including the making any demand or
request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of
taking any such action the holders of such majority or
specified percentage of that series have joined therein may be
evidenced by any instrument or any number of instruments of
similar tenor executed by such holders of Debentures of that
series in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Debentureholders of
any series any request, demand, authorization, direction,
notice, consent, waiver or other action, the Company may, at
its option, as evidenced by an Officers' Certificate, fix in
advance a record date for that series for the determination of
Debentureholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other
action, but the Company shall have no obligation to do so. If
such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other
action may be given before or after the record date, but only
the Debentureholders of record at the close of business on the
record date shall be deemed to be Debentureholders for the
purposes of determining whether Debentureholders of the
requisite proportion of outstanding Debentures of that series
have <PAGE>
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other
action, and for that purpose the outstanding Debentures of that
series shall be computed as of the record date; provided that
no such authorization, agreement or consent by such
Debentureholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
SECTION 8.02. Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Debentureholder
(such proof will not require notarization) or his, her or its
agent or proxy and proof of the holding by any person of any of
the Debentures shall be sufficient if made in the following
manner:
(a) the fact and date of the execution by any such
person of any instrument may be proved in any reasonable
manner acceptable to the Trustee;
(b) the ownership of Debentures shall be proved by
the Debenture Register of such Debentures or by a
certificate of the Debenture Registrar thereof; or
(c) the Trustee may require such additional proof of
any matter referred to in this Section as it shall deem
necessary.
SECTION 8.03. Prior to the due presentment for
registration of transfer of any Debenture, the Company, the
Trustee, any paying agent and any Debenture Registrar may deem
and treat the person in whose name such Debenture shall be
registered upon the books of the Company as the absolute owner
of such Debenture (whether or not such Debenture shall be
overdue and notwithstanding any notice of ownership or writing
thereon made by anyone other than the Debenture Registrar) for
the purpose of receiving payment of or on account of the
principal of and premium, if any, and (subject to Section 2.03)
interest on such Debenture and for all other purposes; and
neither the Company nor the Trustee nor any paying agent nor
any Debenture Registrar shall be affected by any notice to the
contrary.
SECTION 8.04. At any time the Debentures are held by any
holder other than PacifiCorp Delaware, L.P., a Delaware limited
partnership, in determining whether the holders of the
requisite aggregate principal amount of Debentures of a
particular series have concurred in any direction, consent or
waiver under this Indenture, Debentures of that series which
are owned by the Company or any other obligor on the Debentures
of that series or by any person directly or indirectly
controlling or controlled by or under common control with the
Company or any other obligor on the Debentures of that series
shall be disregarded and deemed not to be outstanding for the
purpose of any such determination, except that for the purpose
of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only
Debentures of such series which the Trustee actually knows are
so owned shall be so disregarded. Debentures so owned which
have been pledged in good faith may be regarded as outstanding
for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Debentures and that the
pledgee is not a person directly or indirectly controlling or
controlled by or under direct or indirect common control with
the Company or any such other obligor. In case of a dispute as
to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the
taking of any action by the holders of the majority or
percentage in aggregate principal amount of the Debentures of a
particular series specified in this Indenture in connection
with such action, any holder of a Debenture of that series
which is shown by the evidence to be included in the Debentures
the holders of which have consented to such action may, by
filing written notice with the Trustee, and upon proof of
holding as provided in Section 8.02, revoke such action so far
as concerns such Debenture. Except as aforesaid, any such
action taken by the holder of any Debenture shall be conclusive
and binding upon such holder and upon all future holders and
owners of such Debenture, and of any Debenture issued in
exchange therefor, on registration of transfer thereof or in
place thereof, irrespective of whether or not any notation in
regard thereto is made upon such Debenture. Any action taken
by the holders of the majority or percentage in aggregate
principal amount of the Debentures of a particular series
specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and
the holders of all the Debentures of that series.
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company, when
authorized by a Board Resolution, and the Trustee may from time
to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of
the Trust Indenture Act as then in effect), without the consent
of the Debentureholders, for one or more of the following
purposes:
<PAGE>
(a) to evidence the succession of another
corporation to the Company, and the assumption by any such
successor of the covenants of the Company contained herein
or otherwise established with respect to the Debentures;
(b) to add to the covenants of the Company such
further covenants, restrictions, conditions or provisions
for the protection of the holders of the Debentures of all
or any series as the Board of Directors and the Trustee
shall consider to be for the protection of the holders of
Debentures of all or any series, and to make the
occurrence, or the occurrence and continuance, of a
default in any of such additional covenants, restrictions,
conditions or provisions a default or an Event of Default
with respect to that series permitting the enforcement of
all or any of the several remedies provided in this
Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction,
condition or provision, such supplemental indenture may
provide for a particular period of grace after default
(which period may be shorter or longer than that allowed
in the case of other defaults), may provide for an
immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may
limit the right of the holders of a majority in aggregate
principal amount of the Debentures of such series to waive
such default;
(c) to cure any ambiguity or to correct or
supplement any provision contained herein or in any
supplemental indenture which may be defective or
inconsistent with any other provision contained herein or
in any supplemental indenture, or to make such other
provisions in regard to matters or questions arising under
this indenture as shall not be inconsistent with the
provisions of this Indenture and shall not adversely
affect the interests of the holders of the Debentures of
any series; or
(d) to change or eliminate any of the provisions of
this Indenture, provided that any such change or
elimination shall become effective only when there is no
Debenture outstanding of any series created prior to the
execution of such supplemental indenture which is entitled
to the benefit of such provision.
The Trustee is hereby authorized to join with the Company
in the execution of any such supplemental indenture, and to
make any further appropriate agreements and stipulations which
may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee
without the consent of the holders of any of the Debentures at
the time outstanding, notwithstanding any of the provisions of
Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in
Section 8.01) of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series
affected by such supplemental indenture or indentures at the
time outstanding, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture
Act as then in effect) for the purpose of adding any provisions
to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of any supplemental indenture
or of modifying in any manner the rights of the holders of the
Debentures of that series under this Indenture; provided,
however, that no such supplemental indenture shall (i) extend
the fixed maturity of any Debentures of any series, reduce the
principal amount thereof, reduce the rate or extend the time of
payment of interest thereon or reduce any premium payable upon
the redemption thereof, without the consent of the holder of
each Debenture so affected or (ii) reduce the aforesaid
percentage of Debentures, the holders of which are required to
consent to any such supplemental indenture, without the consent
of the holders of each Debenture then outstanding and affected
thereby.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of
the consent of Debentureholders required to consent thereto as
aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion but shall not be obligated to
enter into such supplemental indenture.
It shall not be necessary for the consent of the
Debentureholders of any series affected thereby under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
<PAGE>
Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the
provisions of this Section, the Trustee shall transmit by mail,
first-class postage prepaid, a notice, setting forth in general
terms the substance of such supplemental indenture, to the
Debentureholders of all series affected thereby as their names
and addresses appear upon the Debenture Register. Any failure
of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article or of
Section 10.01, this Indenture shall, with respect to that
series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Debentures of
the series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to
such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
SECTION 9.04. Debentures of any series, affected by a
supplemental indenture, authenticated and delivered after the
execution of such supplemental indenture pursuant to the
provisions of this Article or of Section 10.01, may bear a
notation in form approved by the Company, provided such form
meets the requirements of any exchange upon which such series
may be listed, as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Debentures of that series so modified as to conform, in the
opinion of the Board of Directors, to any modification of this
Indenture contained in any such supplemental indenture may be
prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Debentures of that series then
outstanding.
SECTION 9.05. The Trustee, subject to the provisions of
Section 7.01, is entitled to receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article is authorized or permitted by, and
conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join in
the execution thereof.
ARTICLE TEN
Consolidation, Merger and Sale
SECTION 10.01. Nothing contained in this Indenture or in
any of the Debentures shall prevent any consolidation or merger
of the Company with or into any other corporation or
corporations (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or
its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other
disposition of the property of the Company or its successor or
successors as an entirety, or substantially as an entirety, to
any other corporation (whether or not affiliated with the
Company or its successor or successors) authorized to acquire
and operate the same; provided, however, the Company hereby
covenants and agrees that, upon any such consolidation, merger,
sale, conveyance, transfer or other disposition, the due and
punctual payment of the principal of (premium, if any) and
interest on all of the Debentures of all series in accordance
with the terms of each series, according to their tenor, and
the due and punctual performance and observance of all the
covenants and conditions of this Indenture with respect to each
series or established with respect to each series pursuant to
Section 2.01 to be kept or performed by the Company, shall be
expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act as then in
effect) satisfactory in form to the Trustee executed and
delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been
merged, or by the entity which shall have acquired such
property.
SECTION 10.02. (a) In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and
upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and premium, if any, and
interest on all of the Debentures of all series outstanding and
the due and punctual performance of all of the covenants and
conditions of this Indenture or established with respect to
each series of the Debentures pursuant to Section 2.01 to be
performed by the Company with respect to each series, such
successor corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been named
herein as the party of the first part, and thereupon the
predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Debentures, except
the provisions of Section 7.06 to the extent such provisions
relate to matters occurring before any such consolidation,
merger, sale, conveyance, transfer or other disposition. Such
successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company or
any other predecessor obligor on the Debentures, any or all of
the Debentures issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee;
and, upon the order of such successor company, instead of the
Company, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any <PAGE>
Debentures which previously shall have been signed and
delivered by the officers of the predecessor Company to the
Trustee for authentication, and any Debentures which such
successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Debentures
so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Debentures theretofore or
thereafter issued in accordance with the terms of this
Indenture as though all of such Debentures had been issued at
the date of the execution hereof.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition, such changes in
phraseology and form (but not in substance) may be made in the
Debentures thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the
Debentures shall prevent the Company from merging into itself
or acquiring by purchase or otherwise all or any part of the
property of any other corporation (whether or not affiliated
with the Company).
SECTION 10.03. The Trustee, subject to the provisions of
Section 7.01, is entitled to receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale,
conveyance, transfer or other disposition, and any such
assumption, comply with the provisions of this Article.
ARTICLE ELEVEN
Satisfaction and Discharge of Indenture;
Unclaimed Moneys
SECTION 11.01. If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Debentures of a
series theretofore authenticated (other than any Debentures
which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.07) and
Debentures for whose payment money or Governmental Obligations
has theretofore been deposited in trust or segregated and held
in trust by the Company (and thereupon repaid to the Company or
discharged from such trust, as provided in Section 11.06); (b)
all such Debentures of a particular series not theretofore
delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and the Company shall deposit
or cause to be deposited with the Trustee as trust funds the
entire amount in moneys or Governmental Obligations sufficient;
or (c) a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay at maturity or upon redemption all Debentures
of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company
shall also pay or cause to be paid all other sums payable
hereunder with respect to that series by the Company, then
this Indenture shall thereupon cease to be of further effect
with respect to such series except for the provisions of
Sections 2.05, 2.07, 4.02 and 7.10, which shall survive until
the date of maturity or redemption date, as the case may be,
and Sections 7.06 and 11.06 which shall survive to such date
and thereafter, and the Trustee, on demand of the Company and
at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this
Indenture with respect to such series.
SECTION 11.02. If at any time all such Debentures of a
particular series not heretofore delivered to the Trustee for
cancellation or which have not become due and payable as
described in Section 11.01 shall have been paid by the Company
by depositing irrevocably with the Trustee as trust funds
moneys or an amount of Governmental Obligations sufficient to
pay at maturity or upon redemption all such Debentures of that
series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company
shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to that series, then
after the date such moneys or Governmental Obligations, as the
case may be, are deposited with the Trustee the obligations of
the Company under this Indenture with respect to such series
shall cease to be of further effect except for the provisions
of Sections 2.05, 2.07, 4.02, 7.06, 7.10 and 11.06 hereof which
shall survive until such Debentures shall mature and be paid.
Thereafter, sections 7.06 and 11.05 shall survive. The release
of the Company from its obligations under this Indenture, as
provided for in this Section 11.02, shall be subject to the
further condition that the Company first shall have caused to
be delivered to the Trustee an Opinion of Counsel to the effect
that Debentureholders of a series with respect to which a
deposit has been made in accordance with this Section 11.02
will not realize income, gain or loss for federal income tax
purposes as a result of such deposit and release, and will be
subject to federal income tax on the same amount, in the same
manner and at the same times as would have been the case if
such deposit and release had not occurred.
<PAGE>
SECTION 11.03. If, in addition to satisfying the
conditions set forth in Section 11.01 or 11.02 (except for the
requirement of an Opinion of Counsel), the Company delivers to
the Trustee an Opinion of Counsel to the effect that (a) the
Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (b) since the date of this
Indenture there has been a change in applicable federal income
tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the
Debentureholders of a series with respect to which a deposit
has been made in accordance with Section 11.01 or 11.02 will
not realize income, gain or loss for federal income tax
purposes as a result of such deposit, defeasance and discharge
and will be subject to federal income tax on the same amount,
in the same manner and at the same times, as would have been
the case if such deposit, defeasance and discharge had not
occurred and (c) the deposit shall not result in the Company,
the Trustee or the trust being deemed an "investment company"
under the Investment Company Act of 1940, as amended, then, in
such event, the Company will be deemed to have paid and
discharged the entire indebtedness on that series and the
holder thereof shall thereafter be entitled to receive payment
solely from the trust fund described above.
SECTION 11.04. All moneys or Governmental Obligations
deposited with the Trustee pursuant to Sections 11.01 or 11.02
shall be held in trust and shall be available for payment as
due, either directly or through any paying agent (including the
Company acting as its own paying agent), to the holders of the
particular series of Debentures for the payment or redemption
of which such moneys or Governmental Obligations have been
deposited with the Trustee.
SECTION 11.05. In connection with the satisfaction and
discharge of this Indenture all moneys or Governmental
Obligations then held by any paying agent under the provisions
of this Indenture shall, upon demand of the Company, be paid to
the Trustee and thereupon such paying agent shall be released
from all further liability with respect to such moneys or
Governmental Obligations.
SECTION 11.06. Any moneys or Governmental Obligations
deposited with any paying agent or the Trustee, or then held by
the Company, in trust for payment of principal of or premium or
interest on the Debentures of a particular series that are not
applied but remain unclaimed by the holders of such Debentures
for at least two years after the date upon which the principal
of (and premium, if any) or interest on such Debentures shall
have respectively become due and payable, shall, upon written
notice from the Company, be repaid to the Company on May 31 of
each year or (if then held by the Company) shall be discharged
from such trust; and thereupon the paying agent and the Trustee
shall be released from all further liability with respect to
such moneys or Governmental Obligations, and the holder of any
of the Debentures entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the
Company for the payment thereof.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders, Officers
and Directors
SECTION 12.01. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Debenture,
or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of
any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise; it being expressly understood that this Indenture
and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or
of any predecessor or successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized,
or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the
Debentures or implied therefrom; and that any and all such
personal liability of every name and nature, either at common
law, in equity or by constitution or statute, of, and any and
all such rights and claims against, every such incorporator,
stockholder, officer or director as such, because of the
creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Debentures or implied
therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Debentures.
ARTICLE THIRTEEN
Miscellaneous Provisions
SECTION 13.01. All the covenants, stipulations, promises
and agreements in this Indenture contained by or on behalf of
the Company shall bind its successors and assigns, whether so
expressed or not.
<PAGE>
SECTION 13.02. Any act or proceeding by any provision of
this Indenture authorized or required to be done or performed
by any board, committee or officer of the Company shall and may
be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation
that shall at the time be the lawful sole successor of the
Company.
SECTION 13.03. Except as otherwise expressly provided
herein, any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the
Trustee or by the holders of Debentures to or on the Company
may be given or served by being deposited first-class postage
prepaid in a post-office letter box addressed (until another
address is filed in writing by the Company with the Trustee),
as follows: PacifiCorp, 700 NE Multnomah, Suite 1600,
Attention: Richard T. O'Brien. Any notice, election, request
or demand by the Company or any Debentureholder to or upon the
Trustee shall be deemed to have been sufficiently given or
made, for all purposes, if given or made in writing at the
Corporate Trust Office of the Trustee.
SECTION 13.04. This Indenture and each Debenture shall be
deemed to be a contract made under the laws of the State of New
York, and for all purposes shall be construed in accordance
with the laws of that State, without regard to the conflicts
of laws principles thereof.
SECTION 13.05. (a) Upon any application or demand by the
Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in
the case of any such application or demand as to which the
furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion
need be furnished.
(b) Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant in this Indenture
(other than the certificate provided pursuant to Section
5.03(d) of this Indenture) shall include (1) a statement that
the person making such certificate or opinion has read such
covenant or condition; (2) a brief statement as to the nature
and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such person,
he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and (4)
a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 13.06. Simultaneously with the execution of this
Indenture, the Company shall deliver to the Trustee an Opinion
of Counsel stating that, in the opinion of such counsel,
(a) this Indenture has been duly authorized by and lawfully
executed and delivered on behalf of the Company, is in full
force and effect and is legal, valid and binding upon the
Company in accordance with its terms, except to the extent
limited by bankruptcy, insolvency, reorganization or other laws
affecting creditors' rights and (b) the Debentures have been
authorized, executed and delivered by the Company and
constitute legal, valid and binding obligations of the Company
in accordance with their terms.
SECTION 13.07. Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and as set forth in an
Officers' Certificate, or established in one or more indentures
supplemental to this Indenture, in any case where the date of
maturity of interest or principal of any Debenture or the date
of redemption of any Debenture shall not be a Business Day then
payment of interest or principal (and premium, if any) may be
made on the next succeeding Business Day with the same force
and effect as if made on the nominal date of maturity or
redemption, and no interest shall accrue for the period after
such nominal date.
SECTION 13.08. If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties
imposed by operation of Section 3.18(c) of the Trust Indenture
Act, such imposed duties shall control.
SECTION 13.09. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but
such counterparts shall together constitute one and the same
instrument.
SECTION 13.10. In case any one or more of the provisions
contained in this Indenture or in the Debentures of any series
shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
Indenture or of such Debentures, but this Indenture and such
Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or
therein.
SECTION 13.11. The Company will have the right at all
times to assign any of its rights or obligations under this
Indenture to a direct or indirect wholly-owned subsidiary of
the Company; provided that, in the event <PAGE>
of any such assignment, the Company will remain liable for all
such obligations. Subject to the foregoing, the Indenture is
binding upon and inures to the benefit of the parties thereto
and their respective successors and assigns. The Indenture may
not otherwise be assigned by the parties thereto.
SECTION 13.12. The parties intend that, for each holder of
a Debenture and each person that acquires a beneficial
ownership interest in a Debenture, such Debentures shall
constitute indebtedness for purposes of United States federal,
state and local taxes.
ARTICLE FOURTEEN
Subordination of Debentures
SECTION 14.01. The Company covenants and agrees, and each
holder of Debentures issued hereunder by his acceptance thereof
likewise covenants and agrees, that all Debentures shall be
issued subject to the provisions of this Article Fourteen; and
each holder of a Debenture, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound
by such provisions.
The payment of the principal of and premium, if any, and
interest on all Debentures issued hereunder shall, to the
extent and in the manner hereinafter set forth, be subordinated
and junior in right of payment to the prior payment in full of
all Senior Indebtedness, whether outstanding at the date of
this Indenture or thereafter incurred.
No provision of this Article Fourteen shall prevent the
occurrence of any default or Event of Default hereunder.
SECTION 14.02. In the event and during the continuation of
any default in the payment of principal, premium, interest or
any payment due on any Senior Indebtedness continuing beyond
the period of grace, if any, specified in the instrument
evidencing such Senior Indebtedness (and the Trustee has
received written notice thereof from the Company or one or more
holders of Senior Indebtedness or their representative or
representatives or a trustee), unless and until such default
shall have been cured or waived or shall have ceased to exist,
and in the event that the maturity of any Senior Indebtedness
has been accelerated because of a default (and the Trustee has
received written notice thereof from the Company or one or more
holders of Senior Indebtedness or their representative or
representatives or a trustee), then no payment shall be made by
the Company with respect to the principal (including redemption
and sinking fund payments) of or premium, if any, or interest
on the Debentures.
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any holder when
such payment is prohibited by the preceding paragraph of this
Section 14.02, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders
of Senior Indebtedness or their respective representatives, or
to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as
their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their
representative or representatives or a trustee) notify the
Trustee within 90 days of such payment of the amounts then due
and owing on the Senior Indebtedness and only the amounts
specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION 14.03. Upon any payment by the Company, or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to creditors upon any
dissolution, winding-up, liquidation or reorganization of the
Company, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all amounts due
or to become due upon all Senior Indebtedness shall first be
paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made on
account of the principal (and premium, if any) or interest on
the Debentures; and upon any such dissolution, winding-up,
liquidation or reorganization, any payment by the Company or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the holders
of the Debentures or the Trustee would be entitled, except for
the provisions of this Article Fourteen, shall be paid by the
Company, by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or
distribution, by the holders of the Debentures or by the
Trustee under this Indenture if received by them or it directly
to the holders of Senior Indebtedness (pro rata to such holders
on the basis of the respective amounts of Senior Indebtedness
held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as
their respective interests may appear, to the extent necessary
to pay all Senior Indebtedness in full, in money or money's
worth, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness,
before any payment or distribution is made to the holders of
Debentures or to the Trustee.
<PAGE>
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited
by the foregoing, shall be received by the Trustee or the
holders of the Debentures before all Senior Indebtedness is
paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall
be held in trust for the benefit of and shall be paid over or
delivered to the holders of Senior Indebtedness or their
representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as
their respective interests may appear, as calculated by the
Company, for application to the payment of Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in money in accordance with its terms,
after giving effect to any concurrent payment or distribution
to or for the holders of such Senior Indebtedness.
For purposes of this Article Fourteen, the words, "cash,
property or securities" shall not be deemed to include shares
of stock of the Company as reorganized or readjusted, or
securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment, the payment of
which is subordinated at least to the extent provided in this
Article Fourteen with respect to the Debentures to the payment
of all Senior Indebtedness which may at the time be
outstanding; provided that (i) the Senior Indebtedness is
assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the
holders of the Senior Indebtedness are not, without the consent
of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the
merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article Ten hereof shall
not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 14.03 if such
other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions
stated in Article Ten hereof. Nothing in Section 14.02 or in
this Section 14.03 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.06.
SECTION 14.04. Subject to the payment in full of all
Senior Indebtedness, the rights of the holders of the
Debentures shall be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company applicable to the
Senior Indebtedness until the principal of (and premium, if
any) and interest on the Debentures shall be paid in full; and,
for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any
cash, property or securities to which the holders of the
Debentures or the Trustee would be entitled except for the
provisions of this Article Fourteen, and no payment over
pursuant to the provisions of this Article Fourteen, to or for
the benefit of the holders of Senior Indebtedness by holders of
the Debentures or the Trustee, shall, as between the Company,
its creditors other than holders of Senior Indebtedness, and
the holders of the Debentures, be deemed to be a payment by the
Company to or on account of the Senior Indebtedness. It is
understood that the provisions of this Article Fourteen are and
are intended solely for the purposes of defining the relative
rights of the holders of the Debentures, on the one hand, and
the holders of the Senior Indebtedness on the other hand.
Nothing contained in this Article Fourteen or elsewhere in
this Indenture or in the Debentures is intended to or shall
impair, as between the Company, its creditors other than the
holders of Senior Indebtedness, and the holders of the
Debentures, the obligation of the Company, which is absolute
and unconditional, to pay to the holders of the Debentures the
principal of (and premium, if any) and interest on the
Debentures as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect
the relative rights of the holders of the Debentures and
creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the
Trustee or the holder of any Debenture from exercising all
remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this
Article Fourteen of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article Fourteen, the Trustee, subject to
the provision of Section 7.01, and the holders of the
Debentures shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other
person making such payment or distribution, delivered to the
Trustee or to the holders of the Debentures, for the purposes
of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount hereof or payable
thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article Fourteen.
SECTION 14.05. Each holder of a Debenture by acceptance
thereof authorizes and directs the Trustee in his, her or its
behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article
Fourteen and appoints the Trustee his attorney-in-fact for any
and all such purposes.
<PAGE>
SECTION 14.06. The Company shall give prompt written
notice to a Responsible Officer of the Trustee of any fact
known to the Company which would prohibit the making of any
payment of monies to or by the Trustee or paying agent in
respect of the Debentures pursuant to the provisions of this
Article Fourteen. Notwithstanding the provisions of this
Article Fourteen or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment of
monies to or by the Trustee or paying agent in respect of the
Debentures pursuant to the provisions of this Article Fourteen,
unless and until a Responsible Officer of the Trustee shall
have received written notice thereof at the Corporate Trust
Office of the Trustee from the Company or a holder or holders
of Senior Indebtedness or from any trustee therefor; and before
the receipt of any such written notice, the Trustee, subject to
the provisions of Section 7.01, shall be entitled in all
respects to assume that no such facts exist; provided that if
the Trustee shall not have received the notice provided for in
this Section 14.06 at least two Business Days prior to the date
upon which by the terms hereof any money may become payable for
any purpose (including, without limitation, the payment of the
principal of (or premium, if any) or interest on any
Debenture), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the
purposes for which they were received, and shall not be
affected by any notice to the contrary which may be received by
it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 7.01,
shall be entitled to rely on the delivery to it of a written
notice by a person representing himself to be a holder of
Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of Senior
Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good
faith that further evidence is required with respect to the
right of any person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this
Article Fourteen, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Senior Indebtedness held by such person,
the extent to which such person is entitled to participate in
such payment or distribution and any other facts pertinent to
the rights of such person under this Article Fourteen, and if
such evidence is not furnished the Trustee may defer any
payment to such person pending judicial determination as to the
right of such person to receive such payment.
SECTION 14.07. The Trustee in its individual capacity
shall be entitled to all the rights set forth in this Article
Fourteen in respect of any Senior Indebtedness at any time held
by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this
Article Fourteen, and no implied covenants or obligations with
respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and, subject to the provisions of Section 7.01,
the Trustee shall not be liable to any holder of Senior
Indebtedness if it shall pay over or deliver to holders of
Debentures, the Company or any other person money or assets to
which any holder of Senior Indebtedness shall be entitled by
virtue of this Article Fourteen or otherwise.
SECTION 14.08. No right of any present or future holder of
any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or by
any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness may, at
any time and from time to time, without the consent of or
notice to the Trustee or the holders of the Debentures, without
incurring responsibility to the holders of the Debentures and
without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the holders of the
Debentures to the holders of Senior Indebtedness, do any one or
more of the following: (i) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any person liable in any
manner for the collection of Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the
Company and any other person.
The Bank of New York, as Trustee, hereby accepts the
trusts in this Indenture declared and provided, upon the terms
and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day
and year first above written.
<PAGE>
PACIFICORP
By:
---------------------------------
Richard T. O'Brien, Vice President
Attest:
By:
--------------------------
Lenore M. Martin, Assistant Secretary
THE BANK OF NEW YORK
as Trustee
By:
---------------------------------
Its:
-----------------------------
Attest:
By:
---------------------------
Its:
-----------------------
STATE OF OREGON )
) ss.
COUNTY OF MULTNOMAH )
On _____________________, 1995 before me personally
appeared Richard T. O'Brien and Lenore M. Martin personally
known to me or proved to me on the basis of satisfactory
evidence to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the
same in their authorized capacities, and that by their
signatures on the instrument the persons, or the entity upon
behalf of which the persons acted, executed the instrument.
Witness my hand and official seal.
- -----------------------------------
Signature of Notary Public
My Commission Expires:
------------
<PAGE>
STATE OF ______________ )
) ss.
COUNTY OF _____________ )
On this day of ___________________, 1995 before me
personally appeared ___________________ and ___________________
proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies) and that by
his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
- -----------------------------------
Signature of Notary Public
My Commission Expires:
------------
===============================================================
PACIFICORP
AND
THE BANK OF NEW YORK,
as Trustee
____________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of May __, 1995
TO
INDENTURE
Dated as of May 1, 1995
____________________
_____% Junior Subordinated Deferrable Interest Debentures,
Series A, Due 2025
===============================================================<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of the ____ day
of May, 1995 (the "First Supplemental Indenture"), between
PACIFICORP, a corporation duly organized and existing under the
laws of the State of Oregon (hereinafter sometimes referred to
as the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation organized and existing under the laws of the State
of New York, as trustee (hereinafter sometimes referred to as the
"Trustee") (under the Indenture dated as of May 1, 1995 between
the Company and the Trustee (the "Indenture"; all terms used and
not defined herein are used as defined in the Indenture).
WHEREAS, the Company executed and delivered the Indenture
to the Trustee to provide for the future issuance of its junior
subordinated debentures (the "Debentures"), which Debentures are
to be issued from time to time in such series as may be
determined by the Company under the Indenture, in an unlimited
aggregate principal amount which may be authenticated and
delivered thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the
Company desires to provide for the establishment of a new series
of its Debentures to be known as its _____% Junior Subordinated
Deferrable Interest Debentures, Series A, due 2025 (such series
being hereinafter referred to as the "Series A Debentures"), the
form and substance of such Series A Debentures and the terms,
provisions and conditions thereof to be set forth as provided in
the Indenture and this First Supplemental Indenture; and
WHEREAS, the Company desires and has requested the
Trustee to join with it in the execution and delivery of this
First Supplemental Indenture, and all requirements necessary to
make this First Supplemental Indenture a valid instrument, in
accordance with its terms, and to make the Series A Debentures,
when executed by the Company and authenticated and delivered by
the Trustee, the valid obligations of the Company, have been
performed and fulfilled, and the execution and delivery hereof
have been in all respects duly authorized;
NOW, THEREFORE, in consideration of the purchase and
acceptance of the Series A Debentures by the holders thereof, and
for the purpose of setting forth, as provided in the Indenture,
the form and substance of the Series A Debentures and the terms,
provisions and conditions thereof, the Company covenants and
agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of
the Series A Debentures
SECTION 1.01. There shall be and is hereby authorized
a series of Debentures designated the "_____% Junior Subordinated
Deferrable Interest Debentures, Series A, Due 2025," limited in
aggregate principal amount to $125,000,000, which amount shall
be as set forth in any written order of the Company for the
authentication and delivery of Series A Debentures. The Series A
Debentures shall mature and the principal shall be due and
payable, together with all accrued and unpaid interest thereon,
on May __, 2025, and shall be issued in the form of registered
Series A Debentures without coupons.
SECTION 1.02. Principal and interest on the Series A
Debentures will be payable, the transfer of such Series A
Debentures will be registrable and such Series A Debentures will
be exchangeable for Series A Debentures bearing identical terms
and provisions at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New
York; provided, however, that payment of interest may be made at
the option of the Company by check mailed to the registered
holder at such address as shall appear in the Debenture Register
or by wire transfer to an account maintained by the registered
holder as specified in the Debenture Register.
SECTION 1.03. Each Series A Debenture will bear interest
at the rate of _____% per annum from and including the original
date of issuance until the principal thereof becomes due and
payable, and on any overdue principal and (to the extent that
payment of such interest is enforceable <PAGE>
under applicable law) on any overdue installment of interest at
the same rate per annum, payable quarterly in arrears on February
15, May 15, August 15 and November 15 of each year (each, an
"Interest Payment Date"), commencing on August 15, 1995, to the
person in whose name such Series A Debenture or any predecessor
Series A Debenture is registered at the close of business on the
February 1, May 1, August 1 or November 1, respectively,
preceding that Interest Payment Date (each, a "Record Date").
Any such interest installment not punctually paid or duly
provided for on any Interest Payment Date shall forthwith cease
to be payable to the registered holder on the relevant Record
Date, and may be paid to the person in whose name the Series A
Debenture (or one or more predecessor Debentures) is registered
at the close of business on a special record date to be fixed by
the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered holders of the Series A
Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Series A Debentures may be listed, and upon such notice
as may be required by such exchange, all as more fully provided
in the Indenture; provided, however, that interest (other than
interest described in the next sentence) shall not be considered
payable by the Company on any Interest Payment Date falling
within an Extension Period (as defined in Section 3.01 below),
unless the Company has elected to make a full or partial payment
of interest accrued on the Series A Debentures on that Interest
Payment Date. In addition, each Series A Debenture will bear
interest at the rate of 7.92% per annum from and including May
6, 1995 to and including ______, 1995, payable on August 15, 1995
to the person in whose name such Series A Debenture or any
predecessor Series A Debenture is registered at the close of
business on August 1, 1995.
The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months
and, for any period shorter than a full calendar month, on the
basis of the actual number of days elapsed in such period. In
the event that any date on which interest is payable on the
Series A Debentures is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such
date.
ARTICLE TWO
Redemption of the Series A Debentures
SECTION 2.01. Subject to the terms of Article Three of
the Indenture, the Company shall have the right to redeem the
Series A Debentures, in whole or in part, from time to time,
after May 31, 1997, at a redemption price equal to 100% of the
principal amount of Series A Debentures to be redeemed plus any
accrued and unpaid interest thereon to the date of such
redemption. If the Series A Debentures are only partially
redeemed pursuant to this Section, the Series A Debentures will
be redeemed by lot or by any other method utilized by the
Trustee.
ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. Subject to Section 4.06 of the Indenture,
so long as the Company shall not be in default in the payment of
interest on the Series A Debentures, the Company shall have the
right, at any time during the term of the Series A Debentures,
to extend any interest payment period of such Series A Debentures
at any time and from time to time for a period not to exceed 20
consecutive calendar quarters from the last Interest Payment Date
to which interest was paid in full (each, an "Extension Period"),
provided that such Extension Period ends on another Interest
Payment Date. No interest shall be due and payable during an
Extension Period, but on the Interest Payment Date occurring at
the end of each Extension Period the Company shall pay to the
holders of record on the Record Date for such Interest Payment
Date (regardless of who the holders of record may have been on
other dates during the Extension Period) all accrued and unpaid
interest on the Series A Debentures, together with interest
thereon at the rate specified for the Series A Debentures. Prior
to the termination of any Extension Period, the Company may pay
all or any portion of the interest <PAGE>
accrued on the Series A Debentures on any Interest Payment Date
to holders of record on the Record Date for that Interest Payment
Date or from time to time further extend the interest payment
period, provided that any such Extension Period, together with
all such previous and further extensions thereof, shall not
exceed 20 consecutive calendar quarters. If the Company shall
elect to pay all of the interest accrued on the Series A
Debentures on an Interest Payment Date during an Extension
Period, that Extension Period shall automatically terminate on
that Interest Payment Date. Upon the termination of an Extension
Period and the payment of all amounts of interest then due, the
Company may commence a new Extension Period, subject to the
foregoing requirements.
SECTION 3.02. The Company shall give the Trustee written
notice of (i) any election by the Company to initiate an
Extension Period and the duration thereof, (ii) any election by
the Company to extend any Extension Period beyond the Interest
Payment Date on which that Extension Period is then scheduled to
terminate and the duration of such extension and (iii) any
election by the Company to make a full or partial payment of
interest accrued on the Series A Debentures on any Interest
Payment Date during any Extension Period and the amount of such
payment. In no event shall such notice by the Company be given
less than 10 Business Days prior to the Record Date next
preceding the applicable Interest Payment Date. Upon receipt of
any such notice, the Trustee shall give written notice of the
Company's election by mail to the Series A Debentureholders not
less than five Business Days prior to such Record Date. The
Company shall make a public announcement of any such election in
accordance with New York Stock Exchange rules not less than five
Business Days prior to such Record Date.
ARTICLE FOUR
Form of Series A Debenture
SECTION 4.01. The Series A Debentures and the Trustee's
Certificate of Authentication to be endorsed thereon are to be
substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[If the Debenture is to be a Global Debenture, insert -
This Debenture is a Global Debenture within the meaning of the
Indenture hereinafter referred to and is registered in the name
of a Depository or a nominee of a Depository. This Debenture is
exchangeable for Debentures registered in the name of a person
other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this
Debenture (other than a transfer of this Debenture as a whole by
the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the
Depository) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York) to the issuer or its agent for registration of
transfer, exchange or payment, and any Debenture issued is
registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.]
No. ________________ $_____________
CUSIP No. _________
PACIFICORP
_____%
<PAGE>
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE,
SERIES A, DUE 2025
PACIFICORP, a corporation duly organized and existing
under the laws of the State of Oregon (herein referred to as the
"Company", which term includes any successor corporation under
the Indenture), for value received, hereby promises to pay to
_____________________ or registered assigns, the principal sum
of $__________ Dollars on May __, 2025, and to pay interest on
such principal sum from and including __________ ___, 1995 or
from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly
provided for, payable quarterly in arrears on February 15,
May 15, August 15 and November 15 of each year, commencing on
August 15, 1995, at the rate of _____ % per annum until the
principal hereof shall have become due and payable, and on any
overdue principal and premium, if any, and (to the extent that
payment of such interest is enforceable under applicable law) on
any overdue installment of interest at the same rate per annum.
The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a 360-day year of twelve 30-day
months and, for any period shorter than a full calendar month,
on the basis of the actual number of days elapsed in such period.
In the event that any date on which interest is payable on the
Series A Debentures is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such
date. The interest installment so payable, and punctually paid
or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name
this Debenture (or one or more Predecessor Debentures, as defined
in the Indenture) is registered at the close of business on the
February 1, May 1, August 1 or November 1, respectively,
preceding that Interest Payment Date (each, a "Record Date").
Any such interest installment not punctually paid or duly
provided for on any Interest Payment Date shall forthwith cease
to be payable to the registered holder on the relevant Record
Date, and may be paid to the person in whose name this Debenture
(or one or more Predecessor Debentures) is registered at the
close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered holders of this series
of Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Debentures may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in the
Indenture hereinafter referred to; provided, however, that
interest (other than Pre-Issuance Accrued Interest (as defined
below)) shall not be considered payable by the Company on any
Interest Payment Date falling within an Extension Period (as
defined below), unless the Company has elected to make a full or
partial payment of interest accrued on the Series A Debentures
on that Interest Payment Date. In addition, this Debenture will
bear interest at the rate of 7.92% per annum from and including
May 6, 1995 to and including _______________, 1995, payable on
August 15, 1995 ("Pre-Issuance Accrued Interest") to the person
in whose name this Debenture (or one or more Predecessor
Debentures) is registered on the close of business on August 1,
1995. The principal of (and premium, if any) and the interest
on this Debenture shall be payable at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan,
The City of New York, in any coin or currency of the United
States of America which at the time of payment is legal tender
for payment of public and private debts; provided, however, that
payment of interest may be made at the option of the Company by
check mailed to the registered holder at such address as shall
appear in the Debenture Register or, with respect to a registered
holder of $1,000,000 or more in aggregate principal amount of
Debentures who has delivered a written request to the Trustee at
least 14 days prior to the relevant Interest Payment Date
electing to have payments made by wire transfer to a designated
account in the United States, by wire transfer of immediately
available funds to such designated account.
The indebtedness evidenced by this Debenture is, to the
extent provided in the Indenture, subordinated and junior in
right of payment to the prior payment in full of all Senior
Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each holder of
this Debenture, by accepting the same, (a) agrees to and shall
be bound by such provisions, <PAGE>
(b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes. Each
holder hereof, by his acceptance hereof, hereby waives all notice
of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior
Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon those provisions.
This Debenture shall not be entitled to any benefit under
the Indenture hereinafter referred to, be valid or become
obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are contained on the
reverse side hereof and such continued provisions shall for all
purposes have the same effect as though fully set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this
Instrument to be executed.
Dated ___________________
PACIFICORP
By
------------------------------
Its:
Attest:
- ---------------------------------
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
<PAGE>
THE BANK OF NEW YORK ___________________________
as Trustee or as Authentication Agent
By
---------------------- -------------------------
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of
Debentures of the Company (herein sometimes referred to as the
"Debentures"), specified in the Indenture (as defined below), all
issued or to be issued in one or more series under and pursuant
to an Indenture dated as of May 1, 1995 duly executed and
delivered between the Company and THE BANK OF NEW YORK, a New
York banking corporation duly organized and existing under the
laws of the State of New York, as Trustee (herein referred to as
the "Trustee"), as supplemented by the First Supplemental
Indenture dated as of May __, 1995 between the Company and the
Trustee (such Indenture as so supplemented being hereinafter
referred to as the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and
the holders of the Debentures. By the terms of the Indenture,
the Debentures are issuable in series which may vary as to
amount, date of maturity, rate of interest and in other respects
as in the Indenture provided. This series of Debentures is
limited in aggregate principal amount as specified in the First
Supplemental Indenture.
Subject to the terms of Article Three of the Indenture,
the Company shall have the right to redeem this Series A
Debenture at the option of the Company, without premium or
penalty, in whole or in part at any time and from time to time
after May 31, 1997 (an "Optional Redemption"), at a redemption
price equal to 100% of the principal amount of Series A
Debentures to be redeemed plus any accrued and unpaid interest
thereon to the date of such redemption. If the Series A
Debentures are only partially redeemed by the Company pursuant
to an Optional Redemption, the Series A Debentures will be
redeemed by lot or by any other method utilized by the Trustee.
In the event of redemption of this Debenture in part
only, a new Debenture or Debentures of this series for the
unredeemed portion hereof will be issued in the name of the
holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of
the Debentures may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Debenture upon compliance
by the Company with certain conditions set forth therein.
The Indenture contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less than
a majority in aggregate principal amount of the Debentures of
each series affected at the time outstanding, as defined in the
Indenture, to execute supplemental indentures for the purpose of
adding any provisions to, changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders
of the Debentures; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Debentures
of any series, reduce the principal amount thereof, reduce the
rate or extend the time of payment of interest thereon or reduce
any premium payable upon the redemption thereof, without the
consent of the holder of each Debenture so affected or <PAGE>
(ii) reduce the aforesaid percentage of Debentures, the holders
of which are required to consent to any such supplemental
indenture, without the consent of the holders of each Debenture
then outstanding and affected thereby. The Indenture also
contains provisions permitting the holders of a majority in
aggregate principal amount of the Debentures of all series at the
time outstanding affected thereby, on behalf of the holders of
the Debentures of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture,
or established pursuant to the Indenture with respect to such
series, and its consequences, except a default in the payment of
the principal of or premium, if any, or interest on any of the
Debentures of such series, which default may be waived by the
unanimous consent of the holders affected. Any such consent or
waiver by the registered holder of this Debenture (unless revoked
as provided in the Indenture) shall be conclusive and binding
upon such holder and upon all future holders and owners of this
Debenture and of any Debenture issued in exchange herefor or in
place hereof (whether by registration of transfer or otherwise),
irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of
this Debenture or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and premium, if any, and interest on this
Debenture at the time and place and at the rate and in the money
herein prescribed.
Subject to Section 4.06 of the Indenture, so long as the
Company shall not be in default in the payment of interest on the
Series A Debentures, the Company shall have the right, at any
time during the term of the Series A Debentures, to extend any
interest payment period of such Series A Debentures at any time
and from time to time for a period not to exceed 20 consecutive
calendar quarters from the last Interest Payment Date to which
interest was paid in full (each, an "Extension Period"), provided
that such Extension Period ends on another Interest Payment Date.
No interest (other than Pre-Issuance Accrued Interest) shall be
due and payable during an Extension Period, but on the Interest
Payment Date occurring at the end of each Extension Period the
Company shall pay to the holders of record on the Record Date for
such Interest Payment Date (regardless of who the holders of
record may have been on other dates during the Extension Period)
all accrued and unpaid interest on the Series A Debentures,
together with interest thereon, at the rate specified for the
Series A Debentures. Prior to the termination of any Extension
Period, the Company may pay all or any portion of the interest
accrued on the Series A Debentures on any Interest Payment Date
to holders of record on the Record Date for that Interest Payment
Date or from time to time further extend the interest payment
period, provided that any such Extension Period, together with
all such previous and further extensions thereof, shall not
exceed 20 consecutive calendar quarters. If the Company shall
elect to pay all of the interest accrued on the Series A
Debentures on an Interest Payment Date during an Extension
Period, that Extension Period shall automatically terminate on
that Interest Payment Date. Upon the termination of an Extension
Period and the payment of all amounts of interest then due, the
Company may commence a new Extension Period, subject to the
foregoing requirements.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by
the registered holder hereof on the Debenture Register of the
Company, upon surrender of this Debenture for registration of
transfer at the office or agency of the Company designated for
such purpose in the Borough of Manhattan, The City of New York
accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company and the Trustee duly executed
by the registered holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal
amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such
transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of
this Debenture, the Company, the Trustee, any paying agent and
any Debenture Registrar may deem and treat the registered holder
hereof as the absolute owner hereof (whether or not this
Debenture shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the
Debenture Registrar) for the purpose of receiving payment of or
on account of the principal hereof and premium, <PAGE>
if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any
Debenture Registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal
of or the interest on this Debenture, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect
of the Indenture, against any incorporator, stockholder, officer
or director, past, present or future, as such, of the Company or
of any predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the
consideration for the issuance hereof, expressly waived and
released.
The Debentures of this series are issuable in registered
form without coupons in denominations of $25 and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations herein and therein set forth, Debentures of
this series so issued are exchangeable for a like aggregate
principal amount of Debentures of this series of a different
authorized denomination, as requested by the holder surrendering
the same.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
ARTICLE FIVE
Original Issue of Series A Debentures
SECTION 5.01. Series A Debentures in the aggregate
principal amount of $125,000,000, may, upon execution of this
First Supplemental Indenture, or from time to time thereafter,
be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and
deliver such Debentures to or upon the written order of the
Company, signed by its Chairman, President or any Vice President
and its Treasurer or an Assistant Treasurer, without any further
action by the Company.
ARTICLE SIX
Miscellaneous Provisions
SECTION 6.01. Except as otherwise expressly provided in
this First Supplemental Indenture or in the form of Series A
Debenture or otherwise clearly required by the context hereof or
thereof, all terms used herein or in the form of Series A
Debenture that are defined in the Indenture shall have the
several meanings respectively assigned to them thereby.
SECTION 6.02. The Indenture, as supplemented by this
First Supplemental Indenture, is in all respects ratified and
confirmed, and this First Supplemental Indenture shall be deemed
part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 6.03. The recitals herein contained are made by
the Company and not by the Trustee, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes
no representation as to the validity or sufficiency of this First
Supplemental Indenture.
SECTION 6.04. This First Supplemental Indenture may be
executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but
one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested,
on the date or dates indicated in the acknowledgments and as of
the day and year first above written.
PACIFICORP
By:
---------------------------------
Richard T. O'Brien, Vice President
Attest:
- ---------------------------------
Lenore M. Martin, Assistant Secretary
THE BANK OF NEW YORK, as Trustee
By:
---------------------------------
Attest:
- ---------------------------------
<PAGE>
STATE OF NEW YORK )
) ss.
COUNTY OF )
On the _____ day of _________________, 1995, before me
personally came ______________ and _______________ to me known,
who, being by me duly sworn, did depose and say that they reside
at ___________________; that they are _______________ and
_____________, respectively, of The Bank of New York, one of the
corporations described in and which executed the above
instrument; that they know the corporate seal of the corporation;
that the seal affixed to that instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
that corporation and that they signed their names thereto by like
authority.
-------------------------------------
NOTARY PUBLIC
My Commission Expires:
STATE OF OREGON )
) ss.
COUNTY OF MULTNOMAH )
On the _____ day of _____________________________, 1995,
before me personally came Richard T. O'Brien and Lenore M. Martin
to me known, who, being by me duly sworn, did depose and say that
they reside at Portland, Oregon; that they are a Vice President
and Assistant Secretary, respectively, of PacifiCorp, one of the
corporations described in and which executed the above
instrument; that they know the corporate seal of the corporation;
that the seal affixed to that instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of
that corporation and that they signed their names thereto by like
authority.
-------------------------------------
NOTARY PUBLIC
My Commission Expires:
Exhibit (5)
(23)(b)
[STOEL RIVES BOLEY JONES & GREY LETTERHEAD]
April 12, 1995
PacifiCorp
700 NE Multnomah, Suite 1600
Portland, OR 97232
We are acting as counsel to PacifiCorp, an Oregon
corporation (the "Company") in connection with the proposed
issuance and exchange by the Company of not to exceed
$125,000,000 in aggregate principal amount of Junior
Subordinated Deferrable Interest Debentures, Series A, due 2025
(the "Debentures") to be issued pursuant to an indenture
between the Company and the Bank of New York, as Trustee (the
"Indenture") as contemplated by the Registration Statement on
Form S-4 about to be filed by the Company with the Securities
and Exchange Commission for the registration of the Debentures
under the Securities Act of 1933, as amended (the "Act"). As
described in the Registration Statement, the Company plans to
issue the Debentures in connection with an exchange offer (the
"Exchange Offer") pursuant to which the Company will offer to
exchange up to $125,000,000 aggregate principal amount of the
Debentures for up to all of the outstanding shares of its $1.98
No Par Serial Preferred Stock, Series 1992 (the "Series 1992
Preferred Stock"). Exchanges will be effected on the basis of
$25 principal amount of Debentures for each share of
Series 1992 Preferred Stock validly tendered and accepted for
exchange in the Exchange Offer.
In connection with the foregoing, we are of the
opinion that:
(a) All action necessary to make valid the proposed
issuance of the Debentures by the Company will
have been taken when:
1. The Registration Statement, as it may be
amended, shall have become effective;
2. The Indenture shall have been qualified
under the Trust Indenture Act of 1939, as
amended;
<PAGE>
3. Appropriate orders authorizing the issuance
of the Debentures by the Company shall have
been entered by the Idaho Public Utilities
Commission, the Montana Public Service
Commission, the Public Utility Commission
of Oregon, the Utah Public Service
Commission and the Public Service
Commission of Wyoming;
4. The Finance Committee or the Pricing
Committee of the Company's Board of
Directors shall have duly adopted
appropriate resolutions fixing certain of
the terms of the Debentures, authorizing
the execution and delivery of the Indenture
and one or more supplemental indentures
with respect to the Debentures, authorizing
the execution and delivery of the
Debentures and authorizing or ratifying
such other corporate acts as may be
necessary in connection with the issuance
and exchange of the Debentures;
5. The Indenture shall have been executed and
delivered and one or more supplemental
indentures with respect to the Debentures
shall have been duly executed and
delivered;
6. The Debentures shall have been
appropriately issued, authenticated and
delivered for the consideration
contemplated by, and otherwise in
conformity with, the acts, proceedings and
documents referred to above; and
(b) When the steps set forth in paragraph (a) shall
have been taken, the Debentures will be legal,
valid and binding obligations of the Company
enforceable in accordance with their terms,
except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other
laws limiting creditors' rights generally or by
equitable principles relating to the
availability of remedies; provided, however,
that in rendering the above opinion, we express
no opinion as to the effect, if any, of the
<PAGE>
usury laws of any state upon the enforceability
of rights of the holders of the Debentures.
We hereby authorize and consent to the use of this
opinion as Exhibit (5)(a) to the Registration Statement and
authorize and consent to the references to our firm in the
Registration Statement and in the preliminary Prospectus
constituting a part thereof. In giving such consent, we do not
thereby admit that we are within the category of persons whose
consent is required pursuant to Section 7 of the Act or the
rules and regulations of the Securities and Exchange
Commission.
Very truly yours,
STOEL RIVES BOLEY JONES & GREY
Exhibit (8)
(23)(b)
[LETTERHEAD OF STOEL RIVES BOLEY JONES & GREY]
April 12, 1995
PacifiCorp
700 NE Multnomah, Suite 1600
Portland, OR 97232
We are acting as your counsel in connection with the
proposed issuance and exchange by PacifiCorp of up to
$125,000,000 in aggregate principal amount of Junior
Subordinated Deferrable Interest Debentures, Series A, due 2025
(the "Debentures"), all as contemplated by the Registration
Statement on Form S-4 about to be filed with the Securities and
Exchange Commission to register the Debentures under the
Securities Act of 1933, as amended (the "Act"). As described
in the Registration Statement, the Company plans to issue the
Debentures in connection with an exchange offer (the "Exchange
Offer") pursuant to which the Company will offer to exchange up
to $125,000,000 aggregate principal amount of the Debentures
for up to all of the outstanding shares of its $1.98 No par
Serial Preferred Stock, Series 1992 (the "Series 1992 Preferred
Stock"). Exchanges will be effected on the basis of $25
principal amount of Debentures for each share of Series 1992
Preferred Stock validly tendered and accepted for exchange in
the Exchange Offer.
In connection therewith, we hereby confirm our
opinions as set forth under the headings "Certain Federal
Income Tax Considerations" and "Certain Federal Income Tax
Considerations For Non-United States Persons" in the
preliminary Prospectus for the Debentures that constitutes a
part of the Registration Statement (the "Preliminary
Prospectus").
We hereby authorize and consent to use of this
opinion as Exhibit (8) to the Registration Statement and
authorize and consent to references to our firm in the
Registration Statement and in the Preliminary Prospectus
constituting a part thereof. In giving such consent, we do
not admit that we are within the category of persons whose
consent is required pursuant to Section 7 of the Act or the
<PAGE>
rules and regulations of the Securities and Exchange
Commission.
Very truly yours,
STOEL RIVES BOLEY JONES & GREY
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of PacifiCorp on Form S-4 of our report
dated February 17, 1995, March 9, 1995 as to the agreement to
acquire the minority interest in Pacific Telecom, Inc.
described in Note 1, (which expresses an unqualified opinion
and includes an explanatory paragraph relating to changes
adopted in accounting for income taxes and other postretirement
benefits) appearing in and incorporated by reference in the
Annual Report on Form 10-K of PacifiCorp for the year ended
December 31, 1994 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration
Statement.
DELOITTE & TOUCHE LLP
Portland, Oregon
April 11, 1995
EXHIBIT (24)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints William J. Glasgow and Richard T. O'Brien, and each of them, his true
and lawful attorneys and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Registration Statements under The Securities
Act of 1933, prepared in connection with the issuance of up to $150,000,000 of
no par serial preferred stock and subordinated debt of PacifiCorp and/or
preferred securities of subsidiaries of the Company and any related Company
guarantees, and any and all amendments (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys and agents, and each of them, full power and authority to
do any and all acts and things necessary or advisable to be done, as fully and
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: April 12, 1995.
KATHRYN A. BRAUN
______________________________________
Kathryn A. Braun
<PAGE>
EXHIBIT (24)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints William J. Glasgow and Richard T. O'Brien, and each of them, his true
and lawful attorneys and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Registration Statements under The Securities
Act of 1933, prepared in connection with the issuance of up to $150,000,000 of
no par serial preferred stock and subordinated debt of PacifiCorp and/or
preferred securities of subsidiaries of the Company and any related Company
guarantees, and any and all amendments (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys and agents, and each of them, full power and authority to
do any and all acts and things necessary or advisable to be done, as fully and
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: May 11, 1994.
FREDERICK W. BUCKMAN
______________________________________
Frederick W. Buckman
<PAGE>
EXHIBIT (24)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints William J. Glasgow and Richard T. O'Brien, and each of them, his true
and lawful attorneys and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Registration Statements under The Securities
Act of 1933, prepared in connection with the issuance of up to $150,000,000 of
no par serial preferred stock and subordinated debt of PacifiCorp and/or
preferred securities of subsidiaries of the Company and any related Company
guarantees, and any and all amendments (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys and agents, and each of them, full power and authority to
do any and all acts and things necessary or advisable to be done, as fully and
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: May 11, 1994.
C. TODD CONOVER
______________________________________
C. Todd Conover
<PAGE>
EXHIBIT (24)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints William J. Glasgow and Richard T. O'Brien, and each of them, his true
and lawful attorneys and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Registration Statements under The Securities
Act of 1933, prepared in connection with the issuance of up to $150,000,000 of
no par serial preferred stock and subordinated debt of PacifiCorp and/or
preferred securities of subsidiaries of the Company and any related Company
guarantees, and any and all amendments (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys and agents, and each of them, full power and authority to
do any and all acts and things necessary or advisable to be done, as fully and
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: May 11, 1994.
RICHARD C. EDGLEY
______________________________________
Richard C. Edgley
<PAGE>
EXHIBIT (24)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints William J. Glasgow and Richard T. O'Brien, and each of them, his true
and lawful attorneys and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Registration Statements under The Securities
Act of 1933, prepared in connection with the issuance of up to $150,000,000 of
no par serial preferred stock and subordinated debt of PacifiCorp and/or
preferred securities of subsidiaries of the Company and any related Company
guarantees, and any and all amendments (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys and agents, and each of them, full power and authority to
do any and all acts and things necessary or advisable to be done, as fully and
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: May 11, 1994.
A. M. GLEASON
______________________________________
A. M. Gleason
<PAGE>
EXHIBIT (24)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints William J. Glasgow and Richard T. O'Brien, and each of them, his true
and lawful attorneys and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Registration Statements under The Securities
Act of 1933, prepared in connection with the issuance of up to $150,000,000 of
no par serial preferred stock and subordinated debt of PacifiCorp and/or
preferred securities of subsidiaries of the Company and any related Company
guarantees, and any and all amendments (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys and agents, and each of them, full power and authority to
do any and all acts and things necessary or advisable to be done, as fully and
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: May 11, 1994.
JOHN C. HAMPTON
______________________________________
John C. Hampton
<PAGE>
EXHIBIT (24)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints William J. Glasgow and Richard T. O'Brien, and each of them, his true
and lawful attorneys and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Registration Statements under The Securities
Act of 1933, prepared in connection with the issuance of up to $150,000,000 of
no par serial preferred stock and subordinated debt of PacifiCorp and/or
preferred securities of subsidiaries of the Company and any related Company
guarantees, and any and all amendments (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys and agents, and each of them, full power and authority to
do any and all acts and things necessary or advisable to be done, as fully and
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: May 11, 1994.
NOLAN E. KARRAS
______________________________________
Nolan E. Karras
<PAGE>
EXHIBIT (24)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints William J. Glasgow and Richard T. O'Brien, and each of them, his true
and lawful attorneys and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Registration Statements under The Securities
Act of 1933, prepared in connection with the issuance of up to $150,000,000 of
no par serial preferred stock and subordinated debt of PacifiCorp and/or
preferred securities of subsidiaries of the Company and any related Company
guarantees, and any and all amendments (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys and agents, and each of them, full power and authority to
do any and all acts and things necessary or advisable to be done, as fully and
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: May 11, 1994.
KEITH R. MCKENNON
______________________________________
Keith R. McKennon
<PAGE>
EXHIBIT (24)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints William J. Glasgow and Richard T. O'Brien, and each of them, his true
and lawful attorneys and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Registration Statements under The Securities
Act of 1933, prepared in connection with the issuance of up to $150,000,000 of
no par serial preferred stock and subordinated debt of PacifiCorp and/or
preferred securities of subsidiaries of the Company and any related Company
guarantees, and any and all amendments (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys and agents, and each of them, full power and authority to
do any and all acts and things necessary or advisable to be done, as fully and
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: August 25, 1994.
ROBERT G. MILLER
______________________________________
Robert G. Miller
<PAGE>
EXHIBIT (24)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints William J. Glasgow and Richard T. O'Brien, and each of them, his true
and lawful attorneys and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Registration Statements under The Securities
Act of 1933, prepared in connection with the issuance of up to $150,000,000 of
no par serial preferred stock and subordinated debt of PacifiCorp and/or
preferred securities of subsidiaries of the Company and any related Company
guarantees, and any and all amendments (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys and agents, and each of them, full power and authority to
do any and all acts and things necessary or advisable to be done, as fully and
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: August 30, 1994.
VERL R. TOPHAM
______________________________________
Verl R. Topham
<PAGE>
EXHIBIT (24)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints William J. Glasgow and Richard T. O'Brien, and each of them, his true
and lawful attorneys and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Registration Statements under The Securities
Act of 1933, prepared in connection with the issuance of up to $150,000,000 of
no par serial preferred stock and subordinated debt of PacifiCorp and/or
preferred securities of subsidiaries of the Company and any related Company
guarantees, and any and all amendments (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys and agents, and each of them, full power and authority to
do any and all acts and things necessary or advisable to be done, as fully and
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: May 11, 1994.
DON M. WHEELER
______________________________________
Don M. Wheeler
<PAGE>
EXHIBIT (24)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints William J. Glasgow and Richard T. O'Brien, and each of them, his true
and lawful attorneys and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Registration Statements under The Securities
Act of 1933, prepared in connection with the issuance of up to $150,000,000 of
no par serial preferred stock and subordinated debt of PacifiCorp and/or
preferred securities of subsidiaries of the Company and any related Company
guarantees, and any and all amendments (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys and agents, and each of them, full power and authority to
do any and all acts and things necessary or advisable to be done, as fully and
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: May 11, 1994.
NANCY WILGENBUSCH
______________________________________
Nancy Wilgenbusch
<PAGE>
EXHIBIT (24)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and
appoints William J. Glasgow and Richard T. O'Brien, and each of them, his true
and lawful attorneys and agents, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign one or more Registration Statements under The Securities
Act of 1933, prepared in connection with the issuance of up to $150,000,000 of
no par serial preferred stock and subordinated debt of PacifiCorp and/or
preferred securities of subsidiaries of the Company and any related Company
guarantees, and any and all amendments (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys and agents, and each of them, full power and authority to
do any and all acts and things necessary or advisable to be done, as fully and
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: May 11, 1994.
RICHARD T. O'BRIEN
______________________________________
Richard T. O'Brien
=================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) /__/
______________________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________________
PACIFICORP
(Exact name of obligor as specified in its charter)
Oregon 93-0246090
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
c/o RICHARD T. O'BRIEN
Vice President
PacifiCorp
700 NE Multnomah, Suite 1600
Portland, Oregon 97232-4116
(Address of principal executive offices) (Zip code)
______________________________
PacifiCorp Junior Subordinated Debentures
(Title of the indenture securities)
=================================================================
<PAGE>
1. General information. Furnish the following information as to
the Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
------------------------------------------------------------
Name Address
------------------------------------------------------------
Superintendent of Banks of 2 Rector Street, New York,
the State of New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of 33 Liberty Plaza, New York,
New York N.Y. 10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation
New York Clearing House New York, New York
Association
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act
of 1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1. A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a
grant of powers to exercise corporate trust powers.
(Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672
and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
<PAGE>
4. A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration Statement
No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment
by the Trustee of all facts on which to base a responsive answer to
Item 2, the answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended
by an amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank
of New York, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State
of New York, on the 11th day of April, 1995.
THE BANK OF NEW YORK
By: /S/ WALTER N. GITLIN
----------------------------
Name: Walter N. Gitlin
Title: Vice President
<PAGE>
=================================================================
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
December 31, 1994, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions of
the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,715,471
Interest-bearing balances .......... 853,709
Securities:
Held-to-maturity securities ........ 1,346,480
Available-for-sale securities ...... 1,564,425
Federal funds sold in domestic
offices of the bank ................ 5,557,770
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................24,091,702
LESS: Allowance for loan and
lease losses ..............581,958
LESS: Allocated transfer risk
reserve .....................31,502
Loans and leases, net of unearned
income, allowance, and reserve 23,478,242
Assets held in trading accounts ...... 746,396
Premises and fixed assets (including
capitalized leases) ................ 624,567
Other real estate owned .............. 46,570
Investments in unconsolidated
subsidiaries and associated
companies .......................... 181,905
Customers' liability to this bank on
acceptances outstanding ............ 794,339
Intangible assets .................... 77,527
Other assets ......................... 1,300,004
===========
Total assets ......................... $39,287,405
===========
LIABILITIES
Deposits:
In domestic offices ................ $18,681,498
Noninterest-bearing .......7,230,562
Interest-bearing .........11,450,936
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,611,477
Noninterest-bearing ..........69,012
Interest-bearing .........10,542,465
Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,033,228
Securities sold under agreements
to repurchase .................... 31,875
Demand notes issued to the U.S.
Treasury ........................... 141,663
Trading liabilities .................. 562,071
Other borrowed money:
With original maturity of one year
or less .......................... 1,576,410
With original maturity of more than
one year ......................... 243,955
Bank's liability on acceptances
executed and outstanding ............. 796,534
Subordinated notes and debentures .... 1,056,320
Other liabilities .................... 1,490,732
==========
Total liabilities .................... 36,225,763
==========
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,654,282
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 54,920)
Cumulative foreign currency
translation adjustments ............. ( 5,670)
===========
Total equity capital ................ 3,061,642
===========
Total liabilities and equity
capital ........................... $39,287,405
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of Condition
has been prepared in conformance with the instructions issued by the
Board of Governors of the Federal Reserve System and is true to the
best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true and correct.
)
Thomas A. Renyi )
J. Carter Bacot ) Directors
Alan R. Griffith )
)
================================================================
EXHIBIT 99(a)
DEALER MANAGERS AGREEMENT
April __, 1995
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
PacifiCorp, an Oregon corporation (the "Company"), plans
to make an offer, upon the terms and subject to the conditions
referred to below (the "Exchange Offer"), for up to 5,000,000
issued and outstanding shares of $1.98 No Par Serial Preferred
Stock, Series 1992 (Cumulative, $25 Stated Value) (the "Series 1992
Preferred Stock"), in exchange for the Company's __% Junior
Subordinated Deferrable Interest Debentures, Series A, due 2025
(the "Debentures") to be issued under an indenture (together with
an indenture supplemental thereto or resolution of the Company's
Board of Directors relating to the Debentures, the "Indenture")
dated as of [_____], 1995 between the Company and [The Bank of New
York], as Trustee (the "Trustee"), on the basis of $25 principal
amount of Debentures for each share of Series 1992 Preferred Stock.
The Debentures are further described in the Prospectus referred to
below. The exchange of Series 1992 Preferred Stock for Debentures
pursuant to the Exchange Offer is referred to herein as the
"Exchange." The date of the Exchange is referred to herein as the
"Exchange Date."
The Company hereby confirms its agreement with each of
you, as Dealer Managers, as follows:
1. Registration Statement, Prospectus, Schedule 13E-4
and Offering Materials. (a) The Company has filed with the
Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), a
registration statement on Form S-4 (File No. 33-[_____]) in respect
of the Debentures issuable pursuant to the Exchange Offer, and such<PAGE>
registration statement and any amendments thereto, each in the form
heretofore delivered to you, has been declared effective by the
Commission in such form; no other document with respect to such
registration statement has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission. The
various parts of such registration statement, including all
exhibits thereto and including the documents incorporated by
reference in the prospectus contained in such registration
statement at the time such part of the registration statement
became effective, each as amended at the time such part of the
registration statement became effective, is hereinafter called the
"Registration Statement"; and the final prospectus, in the form
included in the Registration Statement at the time it became
effective, is hereinafter called the "Prospectus," except that, if
a prospectus relating to the Debentures is required to be filed by
the Company pursuant to Rule 424(b) under the Securities Act, the
term "Prospectus" shall refer to such prospectus as so filed; any
reference herein to the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 11 of Form S-4 under the Securities Act as of the date of the
Prospectus (the "Incorporated Documents"); and any reference to any
amendment or supplement to the Prospectus or the Registration
Statement shall be deemed to refer to and include any documents
filed after the date of such Prospectus under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and deemed
to be incorporated by reference in the Prospectus.
(b) The Company has also prepared and filed with the
Commission under the Exchange Act and the rules and regulations of
the Commission thereunder a Statement on Schedule 13E-4 with
respect to the Exchange Offer (as such Statement may be amended
from time to time, and including exhibits thereto and any documents
incorporated by reference therein, the "Schedule 13E-4").
(c) The Company has furnished, or will promptly furnish,
to each of you a signed copy of each of the Registration Statement
and the Schedule 13E-4, all amendments or supplements thereto and
any other filings with the Commission in connection with the
Exchange Offer, whether filed before or after the Registration
Statement became effective, and copies of all exhibits and
documents filed therewith or incorporated therein by reference.
(d) The Registration Statement and the Prospectus, and
the related letter from the Dealer Managers to brokers, dealers,
commercial banks, trust companies and other nominees, the letter to
beneficial owners of the shares of Series 1992 Preferred Stock, the
letter of transmittal to be used by holders tendering shares of
Series 1992 Preferred Stock pursuant to the Exchange Offer (the
"Letter of Transmittal"), the notice of guaranteed delivery, the
letter to, and the questions and answers prepared for the
assistance of, brokers, securities dealers, commercial banks, trust
companies and other nominees and the letter from such nominees to<PAGE>
their clients and any newspaper announcements, press releases and
other offering materials and information as the Company may use or
prepare, or as the Company may approve or authorize in writing for
use, in connection with the Exchange Offer, including the Schedule
13E-4, each as amended or supplemented from time to time, are
referred to herein collectively as the "Exchange Offer Materials."
2. Exchange Offer; Appointment as Dealer Managers. (a)
The Company shall commence the Exchange Offer as soon as
practicable after the execution and delivery hereof by publicly
announcing the commencement thereof and shall distribute by mail,
or cause to be mailed on its behalf, copies of the Prospectus, the
Letter of Transmittal, together with a return envelope, and such of
the other Exchange Offer Materials as may be required or as the
Company may elect to furnish to each holder of record of shares of
Series 1992 Preferred Stock (the date of the commencement of such
distribution being herein called the "Commencement Date"). You, as
Dealer Managers, shall not have any obligation to cause any
Exchange Offer Materials to be transmitted generally to the holders
of shares of Series 1992 Preferred Stock.
(b) The Company hereby appoints you as Dealer Managers
in connection with the Exchange Offer and authorizes you to act on
its behalf in accordance with this Agreement and the terms of the
Exchange Offer Materials to solicit acceptances of the Exchange
Offer.
(c) The Company has approved the Exchange Offer and the
Exchange Offer Materials and authorizes you and any other
securities dealer or any commercial bank or trust company to use
the Exchange Offer Materials in connection with the solicitation of
tenders.
(d) The Company authorizes you, as Dealer Managers, to
communicate with any agent appointed by the Company with respect to
matters relating to the Exchange Offer (the "Exchange Agent")
pursuant to an Exchange Agent Agreement to be entered into between
the Company and the Exchange Agent (the "Exchange Agent Agreement")
and any other agent appointed by the Company with respect to other
matters relating to the Exchange Offer. In soliciting tenders of
shares of Series 1992 Preferred Stock pursuant to the Exchange
Offer, each of you, as Dealer Managers, agrees not to distribute
offering materials and other written information in connection with
the Exchange Offer other than the Exchange Offer Materials.
(e) The Company agrees that it will not use or publish
any material in connection with the Exchange Offer, or refer to you
in any such material, without first consulting you.
3. Solicitation of Tenders. (a) Each of you, as Dealer
Managers, acting severally and not jointly, agrees to use your best
efforts to solicit tenders of shares of Series 1992 Preferred Stock
pursuant to the Exchange Offer. In soliciting tenders, no
securities broker or dealer, commercial bank or trust company that<PAGE>
solicits tenders pursuant to the Exchange Offer shall be deemed to
act as your agent or the agent of the Company. You, as Dealer
Managers, shall not be deemed the agent of any other securities
broker or dealer or of any commercial bank or trust company. In
soliciting tenders, you, as Dealer Managers, shall act as
independent contractors and shall not be deemed to act as agents of
the Company, and the Company shall not be deemed to act as your
agent. Nothing contained in this Agreement shall constitute you,
as Dealer Managers, as partners or joint venturers with the Company
or any of its subsidiaries.
(b) The Company shall furnish to you, as Dealer
Managers, as soon as practicable after the date hereof, with cards
or lists in reasonable quantities or copies thereof showing the
names of persons, to the extent known to the Company, who were the
holders of record of the shares of Series 1992 Preferred Stock as
of a recent date, together with their addresses, and the number of
shares of Series 1992 Preferred Stock held by them. The Company
also shall use its best efforts to advise you from day to day
during the period of the Exchange Offer, as to any transfers in the
holders of record of shares of Series 1992 Preferred Stock. The
Company shall also advise you, to the extent known and available to
the Company, of the names and addresses of beneficial owners of the
shares of Series 1992 Preferred Stock. Except as otherwise
provided herein, you agree to use such information only in
connection with the Exchange Offer and not to furnish such
information to any other person except in connection with the
Exchange Offer.
(c) The Company shall advise you, or cause the Exchange
Agent to advise you, at 5:00 P.M., New York City time, or as
promptly as practicable thereafter, daily (or more frequently if
requested) by telephone or facsimile transmission, as of 4:00 P.M.
(or as of the time of such request) on such day with respect to
shares of Series 1992 Preferred Stock tendered as follows: (i) the
number of shares validly tendered on such day; (ii) the number of
shares validly tendered represented by certificates physically held
by the Exchange Agent (or for which the Exchange Agent has received
confirmation of receipt of book-entry transfer of such shares into
the Exchange Agent's account at a book-entry transfer facility
pursuant to the procedures set forth in the Exchange Offer) on such
day; (iii) the number of shares represented by notices of
guaranteed delivery on such day; (iv) the number of shares properly
withdrawn on such day; and (v) the cumulative totals as of such
date of the number of shares in clauses (i) through (iv) above. If
requested by you, on the day following such oral communication, the
Company shall furnish, or cause the Exchange Agent to furnish, to
you a written report confirming the above information that has been
communicated orally. The Company shall furnish to you, or cause
the Exchange Agent to furnish to you, such other information on the
tendering holders of shares of Series 1992 Preferred Stock as may
be reasonably required from time to time.<PAGE>
(d) To the extent practicable until the Exchange Date,
the Company shall use its best efforts to cause copies of the
Prospectus, the Letter of Transmittal, together with a return
envelope, and other appropriate Exchange Offer Materials to be
mailed to each person who becomes a holder of record of any shares
of Series 1992 Preferred Stock.
4. Covenants of the Company. The Company covenants and
agrees with you that:
(a) The Company will notify you, promptly after it
receives notice thereof, of the time when the Registration
Statement, or any amendment thereof, has been filed or becomes
effective, or any amendment or supplement to the Prospectus or
any amendment to the Schedule 13E-4 or any amended or
additional Exchange Offer Materials shall have been filed, of
the receipt of any comments from the Commission relating to
the Exchange Offer, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of
any Prospectus or any of the Exchange Offer Materials, of the
suspension of the qualification of the Debentures for offering
or sale in connection with the Exchange Offer in any
jurisdictions, of any request by the Commission to amend or
supplement the Registration Statement, the Prospectus, the
Schedule 13E-4 or the other Exchange Offer Materials or for
additional information or of the institution or threatening of
any proceedings for any such purpose. The Company will also
inform you, promptly after it receives notice thereof, of any
litigation or other administrative proceeding with respect to
the Exchange Offer.
(b) The Company agrees to furnish each of you with as
many copies of the Exchange Offer Materials as you may
reasonably request for use by you in connection with the
Exchange Offer during the period of the Exchange Offer. The
Company will cause all amendments and supplements filed with
the Commission to be distributed to holders of record of
shares of Series 1992 Preferred Stock as may be required by
the Securities Act and the Exchange Act and the respective
rules and regulations of the Commission thereunder. During
the period when a prospectus is required to be delivered in
connection with the Exchange Offer by the Securities Act or
the Exchange Act and the rules and regulations of the
Commission thereunder, the Company will deliver to each of
you, without charge, such number of copies of the Prospectus
and the other Exchange Offer Materials (as supplemented or
amended) as you may reasonably request. During such period,
before amending or supplementing the Registration Statement,
the Prospectus, the Schedule 13E-4 or the other Exchange Offer
Materials, or preparing or approving any other material for
use in connection with the Exchange Offer, the Company will
furnish you with a copy of each such proposed amendment or
supplement or other material and agrees not to use any such
proposed amendment or supplement or other material that shall<PAGE>
be reasonably disapproved by you after reasonable notice
thereof.
(c) The Company will comply in all material respects
with the Securities Act and the Exchange Act and the rules and
regulations of the Commission thereunder in connection with
the Exchange Offer Materials, the Exchange Offer and the
transactions contemplated hereby and thereby. If, at any time
during the period when a prospectus in connection with the
Exchange Offer is required to be delivered by the Securities
Act or the Exchange Act and the rules and regulations of the
Commission thereunder any event shall occur or condition exist
as a result of which it is necessary to amend or supplement
the Prospectus or any of the other Exchange Offer Materials in
order that the Prospectus or other Exchange Offer Materials
will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when the Prospectus or other Exchange
Offer Materials are delivered, not misleading, or if it shall
be necessary for any other reason during such period to amend
or supplement the Registration Statement, the Schedule 13E-4
or the Prospectus or any of the other Exchange Offer Materials
in order to comply with applicable law, the Company will
notify you and promptly prepare and furnish, at its own
expense, to you and file with the Commission, if required,
such amendment or supplement, as may be necessary so that the
statements in the Prospectus or other Exchange Offer
Materials, as amended or supplemented, will not, in the light
of the circumstances under which they were made when the
Prospectus or the other Exchange Offer Materials are
delivered, be misleading or so that the Registration
Statement, the Prospectus, the Schedule 13E-4 or such other
Exchange Offer Materials comply with applicable law.
(d) During the time a prospectus relating to the
Debentures is required to be delivered under the Securities
Act, the Company will furnish such proper information as may
be lawfully required and otherwise cooperate in qualifying the
Debentures for offer and sale under the Blue Sky laws of such
jurisdictions as you may reasonably designate and will file
and make in each year such statements or reports as are or may
be reasonably required by laws of such jurisdictions;
provided, however, that the Company shall not be required to
qualify as a foreign corporation or dealer in securities or to
file any consents to service of process under the laws of any
jurisdiction.
(e) In accordance with Rule 158 under the Securities
Act, the Company will make generally available to its security
holders, as soon as practicable, an earning statement (which
need not be audited) in reasonable detail covering the 12
months beginning not later than the first day of the month
next succeeding the month in which occurred the effective date<PAGE>
(within the meaning of Rule 158 under the Securities Act) of
the Registration Statement.
(f) The Company, during the period when a prospectus
relating to the Debentures is required to be delivered under
the Securities Act by any Dealer Manager, will promptly (i)
file all documents required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act and (ii) notify each of you of any written notice given to
the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 15c3-1 under
the Exchange Act) of any intended decrease in any rating of
any of the Debentures or any preferred stock or first mortgage
or first mortgage and collateral trust bonds of the Company or
of any intended change in any such rating that does not
indicate the direction of the possible change, in each case by
any such rating organization.
(g) The Company shall promptly give you notice of any
change in the expiration date of the Exchange Offer (the
"Expiration Date"), of the occurrence of any event that could
cause the Company to withdraw, rescind, modify or amend the
Exchange Offer, of the occurrence of any event that could have
a reasonable likelihood or purpose of causing the Series 1992
Preferred Stock to be delisted from the New York Stock
Exchange (the "NYSE") and of any consummation of the Exchange
Offer.
(h) The Company will use its best efforts to cause the
Debentures to be duly authorized for listing on the NYSE,
subject to official notice of issuance, and to be registered
under the Exchange Act.
(i) Between the date of this Agreement and the later of
(i) the expiration of ten business days after the Expiration
Date and (ii) the consummation of the Exchange Offer, the
Company will not, without your prior written consent, offer
for sale, sell or enter into any agreement to sell, or
otherwise dispose of, any Debentures or any preferred stock or
other securities of the Company that are substantially similar
to the Debentures or any securities convertible into or
exchangeable for Debentures, preferred stock or such
substantially similar securities of the Company.
(j) The Company will promptly enter into an agreement
with the Exchange Agent substantially in the form of such
agreement previously furnished to you.
5. Compensation and Expenses. (a) The Company shall
pay to Goldman, Sachs & Co., for your respective accounts, as
compensation for your services to the Company hereunder, a fee of
(i) if more than 2,500,000 shares of Series 1992 Preferred Stock
are validly tendered for exchange in accordance with the Exchange
Offer and not withdrawn at the Expiration Date, 1% and (ii) if<PAGE>
2,500,000 or fewer shares of Series 1992 Preferred Stock are
validly tendered for exchange in accordance with the Exchange Offer
and not withdrawn at the Expiration Date, four-fifths of 1%, in
each case of the aggregate liquidation preference value of such
Series 1992 Preferred Stock exchanged pursuant to the Exchange<PAGE>
Offer. Such fee shall be paid by certified or official bank check
in immediately available funds concurrently with the acceptance of
shares of Series 1992 Preferred Stock by the Company pursuant to
the Exchange Offer or other termination of the Exchange Offer. The
Company shall pay to any Soliciting Dealer (as defined in the
Exchange Offer Materials), including you, a solicitation fee of 2%
of the aggregate liquidation preference value of all Series 1992
Preferred Stock tendered and exchanged pursuant to the Exchange
Offer through such Soliciting Dealer.
In addition, the Company also will reimburse you as
Dealer Managers, whether or not the Exchange Offer shall commence
or be consummated and whether or not you receive any compensation
under the immediately preceding paragraph, for all reasonable out-
of-pocket expenses (including the reasonable fees and expenses of
your counsel) incurred in connection with the Exchange Offer,
payable as provided below.
(b) Whether or not any shares of Series 1992 Preferred
Stock are tendered pursuant to the Exchange Offer, the Company
covenants and agrees to pay or cause to be paid the following: (i)
the fees for the registration of the Debentures under the
Securities Act and all fees and expenses payable (including the
reasonable fees and expenses of your counsel) in connection with
securing any required review by the National Association of
Securities Dealers, Inc., (ii) the fees, disbursements and expenses
of the Company's counsel and accountants in connection with the
Exchange Offer, the negotiation and delivery of the accountants'
letters referred to in Section 8(g) hereof and all other expenses
incurred by the Company in connection with the preparation and
filing of the Registration Statement, any preliminary prospectus
relating to the Debentures, the Prospectus, the Schedule 13E-4 and
the other Exchange Offer Materials and any amendments or
supplements to any of the foregoing, and the cost of furnishing
copies thereof to you, the Exchange Agent and the holders of the
shares of Series 1992 Preferred Stock, (iii) your reasonable
expenses and the reasonable fees and expenses of your counsel, (iv)
all expenses (including the reasonable fees and expenses of
counsel) payable pursuant to Section 4(d) hereof and in connection
with the Preliminary (and any Supplemental) Blue Sky Survey
prepared in respect thereof, (v) the fees and expenses of the
Exchange Agent and any agent of the Exchange Agent and the fees and
disbursements of counsel for the Exchange Agent and any information
agent appointed in connection with the Exchange Offer, (vi) the
listing fees incident to the listing of the Debentures on the NYSE,
(vii) all costs and expenses incurred in the preparation, printing,
mailing and publishing of the Prospectus, the Registration
Statement, the Schedule 13E-4, the other Exchange Offer Materials,
this Agreement and all other documents relating to the Exchange
Offer and any amendments or supplements thereto, (viii) all fees
payable to securities dealers (including you), commercial banks,
trust companies and nominees as reimbursement of their customary
mailing and handling expenses incurred in forwarding the Exchange
Offer Materials to their customers, all fees and expenses of any
forwarding agent, all advertising charges and any applicable
transfer taxes payable by the Company in connection with the
Exchange Offer, (ix) the preparation, printing and distribution of
this Agreement, the Exchange Agent Agreement, the Indenture, the
Debentures and the Preliminary (and any Supplemental) Blue Sky
Survey, (x) the delivery of the Debentures to be issued pursuant to
the Exchange Offer, (xi) the fees and expenses of the Trustee,
including fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Debentures, (xii) all other
costs and expenses incident to the Exchange Offer or to the
performance by the Company of its obligations hereunder that are
not otherwise specifically provided for in this Section 5(b) and
(xiii) expenses incurred by you as a result of presenting testimony
or evidence, or preparing to present testimony or evidence, in
connection with any court or administrative proceeding arising out
of or in connection with the Exchange Offer.
6. Representations and Warranties by the Company. The
Company represents and warrants and agrees with each of you, as
Dealer Managers, that:
(a) (i) The Registration Statement, as of the
applicable effective date, complied and the Prospectus, at the
time of any filing with the Commission, will comply, except in
each case for Incorporated Documents, in all material respects
with the applicable requirements of the Securities Act, the
Exchange Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the respective rules and
regulations of the Commission thereunder; (ii) the
Registration Statement, as of the applicable effective date,
did not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading; (iii) the Prospectus, at the time of any filing
with the Commission, did not include any untrue statement of
a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(iv) each Incorporated Document, at the time originally filed
with the Commission pursuant to the Exchange Act, complied and
will comply, as the case may be, in all material respects with
the applicable requirements of the Exchange Act and the rules
and regulations of the Commission thereunder; provided,
however, that the Company makes no representation or warranty
as to such part of the Registration Statement that constitutes
the Statement of Eligibility on Form T-1 under the Trust
Indenture Act of the Trustee.<PAGE>
(b) The Schedule 13E-4, as originally filed and
subsequently amended, the other Exchange Offer Materials and
any amendment or supplement thereto conform, or will conform,
in all material respects with all applicable requirements of
the Securities Act and the Exchange Act and the respective
rules and regulations of the Commission thereunder; and none
of the Schedule 13E-4, the other Exchange Offer Materials or
any amendment or supplement thereto includes, or will include,
any untrue statement of a material fact or omits, or will
omit, to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) Neither the making and consummation of the Exchange
Offer nor the consummation of the transactions herein and
therein contemplated has a purpose of producing, either
directly or indirectly, the effect of causing the Series 1992
Preferred Stock to not be listed on the NYSE; and, as of the
Commencement Date, the Company does not believe that either
the making and consummation of the Exchange Offer or the
consummation of the transactions herein and therein
contemplated will have a reasonable likelihood of producing,
either directly or indirectly, the effect of causing the
Series 1992 Preferred Stock to not be listed on the NYSE.
(d) This Agreement has been duly authorized, executed
and delivered by the Company and is a valid and legally
binding agreement of the Company enforceable in accordance
with its terms, except as limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization and other similar laws
relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a
proceeding in equity or at law) and subject to any principles
of public policy limiting the right to enforce the
indemnification and contribution provisions contained herein.
(e) The consolidated financial statements included or
incorporated by reference in the Registration Statement, the
Prospectus and the Schedule 13E-4 present fairly the financial
condition and operations of the Company and its consolidated
subsidiaries at the respective dates or for the respective
periods to which they apply; such financial statements have
been prepared in each case in accordance with generally
accepted accounting principles consistently applied throughout
the periods involved except as otherwise indicated in the
Registration Statement, the Prospectus and the Schedule 13E-4;
and Deloitte & Touche LLP, who examined the audited financial
statements, are independent public accountants as required by
the Securities Act and the rules and regulations of the
Commission thereunder.
(f) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the State
of Oregon with corporate power and corporate authority to own<PAGE>
its properties and conduct its business as described in the
Prospectus and to execute and deliver, and perform its
obligations under, this Agreement, the Indenture and the
Debentures; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which it owns or leases substantial
properties or in which the conduct of its business requires
such qualification, except where the failure to so qualify
would not have a material adverse effect on the financial
condition of the Company and its subsidiaries taken as a
whole.
(g) Except as reflected in, or contemplated by, the
Registration Statement and the Prospectus, since the
respective most recent dates as of which information is given
in the Registration Statement and the Prospectus, there has
not been any material adverse change in the business, affairs,
business prospects, property or financial condition of the
Company, whether or not arising in the ordinary course of
business; since such dates there has not been any material
transaction entered into by the Company other than
transactions contemplated by the Registration Statement and
the Prospectus and transactions in the ordinary course of
business; and the Company has no material contingent
obligation that is not disclosed in the Registration Statement
and the Prospectus.
(h) The Company is not in violation of the Second
Restated Articles of Incorporation of the Company, as amended
(the "Articles"), or its Bylaws, as amended, or in default in
the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
agreement or other instrument to which it is a party or by
which it may be bound, the effect of which is material to the
Company and its subsidiaries taken as a whole; and neither the
execution or delivery of this Agreement, the Indenture, the
Exchange Agent Agreement, the making and consummation of the
Exchange Offer, the issuance and delivery of the Debentures
pursuant to the Exchange Offer, the consummation of the
transactions herein and therein contemplated, the fulfillment
of the terms hereof and thereof nor compliance with the terms
and provisions hereof and thereof will conflict with, or
result in a breach of, or constitute a default under, (i) the
Articles or the Company's Bylaws, as amended, or any material
contract, agreement or other instrument that the Company has
assumed or to which it is now a party or by which it may be
bound or (ii) any order, rule or regulation applicable to the
Company of any court or any federal or state regulatory body
or administrative agency or other governmental body having
jurisdiction over the Company or its properties.
(i) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the
Trust Indenture Act and is a valid and legally binding<PAGE>
agreement of the Company enforceable in accordance with its
terms, except as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization and other similar laws relating to
or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at
law).
(j) The Debentures have been duly authorized and, when
authenticated and delivered in accordance with the Indenture
and exchanged for the Series 1992 Preferred Stock in
accordance with the Exchange Offer, will constitute valid and
legally binding obligations of the Company enforceable in
accordance with their respective terms, except as limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization
and other similar laws relating to or affecting creditors'
rights generally and general equitable principles (whether
considered in a proceeding in equity or at law); and the
Debentures conform to all statements relating thereto
contained in the Registration Statement and the Prospectus.
(k) The making and consummation of the Exchange Offer
have been duly authorized by all necessary corporate action on
the part of the Company.
(l) The authorized, issued and outstanding capital stock
of the Company is as set forth in the Registration Statement
and the Prospectus (except for changes referred to therein or
contemplated thereby and additional shares offered under the
Company's Dividend Reinvestment and Stock Purchase Plan, K
Plus Employee Savings and Stock Ownership Plan or Utah Power
& Light Company Employee Savings and Stock Purchase Plan).
(m) No legal or governmental proceeding is pending or,
to the best of the Company's knowledge, is currently being
threatened challenging the consummation of the transactions
contemplated by this Agreement and the Exchange Offer.
(n) On the Exchange Date, the Debentures will have been
approved for listing on the NYSE, subject to notice of
issuance.
(o) Unless terminated in accordance with the terms of
the Exchange Offer, the Company will accept shares of Series
1992 Preferred Stock for Exchange in accordance with and
subject to the terms and conditions of the Exchange Offer; and
the Company will have made, or will cause the Exchange Agent
to make, appropriate arrangements with The Depository Trust
Company and any other "qualified" registered securities
depositary, as may be necessary, to allow for the book-entry
movement of tendered shares of Series 1992 Preferred Stock and
the Debentures between depositary participants and the
Exchange Agent.<PAGE>
(p) The Exchange Agent Agreement has been duly
authorized by the Company and, when executed and delivered,
will constitute a valid and legally binding agreement of the
Company enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization and other similar laws relating to or affecting
creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law).
Any certificate signed by an officer of the Company and
delivered to you, as Dealer Managers, or to Winthrop, Stimson,
Putnam & Roberts, counsel for the Dealer Managers ("Counsel for the
Dealer Managers"), shall be deemed a representation and warranty by
the Company to each of you as to the statements herein.
7. Indemnity. (a) The Company agrees: (i) to
indemnify and hold harmless each of you, as Dealer Managers, from
and against any and all losses, claims, damages, expenses or
liabilities (or action in respect thereof) that arises out of or is
based upon (A) any untrue statement or alleged untrue statement of
a material fact contained in the Incorporated Documents, the
Registration Statement, the Prospectus, the Schedule 13E-4 or the
other Exchange Offer Materials or in any amendment or supplement to
any of the foregoing or in any press release issued or authorized
by the Company, or that arises out of or is based upon any omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except, as to either of you, insofar as such losses,
claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission
arising out of or based upon statements in or omissions from that
part of the Registration Statement that constitutes the Statement
of Eligibility on Form T-1 under the Trust Indenture Act of the
Trustee, (B) any breach by the Company of any representation or
warranty or failure to comply with any of the agreements on the
part of the Company set forth herein or (C) a withdrawal,
rescission, termination or modification of, or a failure to make or
consummate, the Exchange Offer; and (ii) to indemnify and hold each
of you, as Dealer Managers, harmless from and against any other
loss, claim, damage, expense or liability (or action in respect
thereof) that otherwise arises out of or is based upon or asserted
against either of you in connection with or as a result of you
acting as Dealer Managers in connection with the Exchange Offer or
that arises in connection with your engagement under this
Agreement, except as to each of you, as Dealer Managers, severally
and not jointly, to the extent that any such losses, damages,
liabilities, expenses or claims referred to in this clause (ii)
results from your gross negligence, willful misconduct or bad faith
in performing the services that are the subject of this Agreement.
In the event that you become involved in any capacity in any
action, proceeding or investigation brought by or against any
person, including stockholders of the Company, in connection with
your engagement under this Agreement or arising out of the Exchange
Offer, the Company also agrees to indemnify and hold you harmless<PAGE>
against and to reimburse you for (A) any and all expenses
(including any legal and other fees and expenses incurred in
connection with the cost of any investigation and preparation)
incurred in connection therewith and (B) any amount paid in
settlement of any litigation commenced or threatened or of any
claim whatsoever as set forth herein if such settlement is effected
with the written consent of the Company, which shall not be
unreasonably withheld. The Company also agrees that neither of
you, nor any of your respective affiliates, nor any or your
respective partners, directors, agents, employees or controlling
persons (if any), as the case may be, or any such affiliates, shall
have any liability to the Company or any person asserting claims on
behalf of or in right of the Company for or in connection with your
engagement under this Agreement, except as to each of you, as
Dealer Managers, severally and not jointly, to the extent that any
loss, damage, expense, liability or claim incurred by the Company
results from your gross negligence, willful misconduct or bad faith
in performing the services that are the subject of this Agreement.
(b) Promptly after receipt by either of you, as an
indemnified party under Section 7(a) hereof, of notice of such
indemnified party's involvement in any action, proceeding or
investigation, such indemnified party shall, if a claim in respect
thereof is to be made against the Company under Section 7(a)
hereof, notify the Company in writing of such involvement, but
failure so to notify the Company shall not relieve it from any
liability on account of this indemnity agreement except to the
extent that it has been prejudiced in any material respect by such
failure or from any liability that it may have otherwise than on
account of this indemnity agreement. In case any such action,
proceeding or investigation shall be brought against or otherwise
involve any such indemnified party and such indemnified party shall
notify the Company of the commencement thereof or such indemnified
party's involvement therein, the Company shall be entitled to
participate therein and, to the extent that it shall wish, to
assume the defense thereof with counsel satisfactory to such
indemnified party (who shall not, except with the consent of such
indemnified party, be counsel to the Company). Upon assumption by
the Company of the defense of such action, proceeding or
investigation, the Company shall not be liable to such indemnified
party under this Section 7(b) for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred
by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation, unless such
indemnified party and the Company are named parties to any such
action, proceeding or investigation (including any impleaded
parties) and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing
interests between them. The Company shall not, without the written
consent of either of you, as an indemnified party, effect the
settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought
hereunder (whether or not such indemnified party is an actual or<PAGE>
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of
such indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on
behalf of such indemnified party.
(c) If for any reason the indemnification provided for
in Section 7(a) hereof is unavailable to or insufficient to hold
either of you, as an indemnified party, harmless in respect of any
losses, claims, damages, expenses or liabilities (or actions in
respect thereof) referred to therein, then the Company, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such
losses, claims, damages, expenses or liabilities (or actions in
respect thereof) referred to therein in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and such indemnified party, as Dealer
Managers, on the other hand in the matters contemplated by this
Agreement. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if such
indemnified party failed to give the notice required under Section
7(b) hereof, in such proportion as is appropriate to reflect not
only the relative benefits referred to in the immediately preceding
sentence but also the relative fault of the Company on the one hand
and such indemnified party, as Dealer Managers, on the other with
respect to such losses, claims, damages, expenses or liabilities,
as well as any other relevant equitable considerations. The
relative benefits to the Company on the one hand and such
indemnified party, as Dealer Managers, on the other in connection
with the matters contemplated by this Agreement shall be deemed to
be in the same proportion as the maximum aggregate value of the
consideration proposed to be exchanged for the shares of Series
1992 Preferred Stock pursuant to the Exchange Offer bears to the
maximum aggregate fee proposed to be paid to such indemnified party
pursuant to Section 5 hereof as a result of the exchange of the
shares of Series 1992 Preferred Stock pursuant to the Exchange
Offer. The relative fault of the Company on the one hand and you
on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by, or relating to,
the Company and its affiliates or you and the parties' relative
intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
(d) The Company and you, as Dealer Managers, agree that
it would not be just and equitable if contribution pursuant to
Section 7(c) hereof were determined by pro rata allocation or by
any other method of allocation (even if you, as Dealer Managers,
were treated as one entity for such purpose) that does not take
account of the equitable considerations referred to in Section 7(c)
hereof. The amount paid or payable by either of you, as an
indemnified party, as a result of the losses claims damages and<PAGE>
liabilities referred to in Section 7(c) hereof shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim.
(e) The agreements contained in Section 5 hereof, the
indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in
this Agreement shall remain operative and in full force and effect
regardless of (i) any termination or cancellation of this
Agreement, (ii) any completion of the engagement provided by this
Agreement or (iii) any investigation made by or on behalf of either
of you or any of your respective officers, partners or directors or
any person controlling either of you or by or on behalf of the
Company, its directors or officers, any authorized representative
or any person controlling the Company and shall survive any
acquisition of the shares of Series 1992 Preferred Stock pursuant
to the Exchange Offer or otherwise.
(f) The reimbursement, indemnity and contribution
obligations of the Company under this Section 7 shall be in
addition to any liability that the Company may otherwise have,
shall extend upon the same terms and conditions to your affiliates
and your partners, directors, agents, employees and controlling
persons (if any) and shall be binding upon and inure to the benefit
of any of your successors, assigns, heirs and personal
representatives and any other such persons referred to above.
8. Conditions of Obligations. Your respective
obligations to act as Dealer Managers hereunder shall be subject,
in your discretion, to the conditions that:
(a) All representations, warranties and other statements
of the Company contained herein or in certificates of any officer
of the Company delivered pursuant to the provisions hereof are now,
and on the Commencement Date, the Expiration Date and the Exchange
Date shall be, true and correct.
(b) The Company at all times during the Exchange Offer
shall have performed all of its obligations hereunder theretofore
required to be performed.
(c) The Registration Statement shall have become
effective on or prior to the Commencement Date; any Prospectus
required to be filed with the Commission shall have been filed with
the Commission pursuant to Rule 424(b) under the Securities Act
within the applicable time period prescribed for such filing by the
rules and regulations of the Commission thereunder and in
accordance with Section 4(b) hereof; at any time during the
Exchange Offer, no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued
and no proceedings for that purpose shall have been initiated or
threatened by the Commission, and all requests for additional
information on the part of the Commission shall have been complied<PAGE>
with to your reasonable satisfaction; there shall not have been, at
any time during the Exchange Offer, any temporary restraining order
or injunction issued restraining or enjoining you from acting in
your respective capacities as Dealer Managers with respect to the
Exchange Offer; the orders of the public utility regulatory
authorities in the States of Idaho, Montana, Oregon, Utah and
Wyoming each authorizing the issuance and exchange of the
Debentures by the Company pursuant to the Exchange Offer, the order
dated April 27, 1988 of the California Public Utilities Commission
exempting any issuance of securities of the Company from its
jurisdiction and the order of the Washington Utilities and
Transportation Commission as to the compliance by the Company with
the filing requirements of RCW 80.08.040 shall be in full force and
effect and shall not then be either contested or the subject of
review or appeal, and such orders constitute the only approval,
authorization, consent or other order of any governmental body
legally required for the authorization of the issuance and exchange
of the Debentures by the Company pursuant to the Exchange Offer,
except such as may be required under the Securities Act or under
state or other securities or Blue Sky laws; and the Company shall
have delivered to you, as Dealer Managers, a certificate of the
Company signed by the President or any Vice President of the
Company, dated the Commencement Date and the Exchange Date,
respectively, to such effect with copies attached thereto of such
orders and of evidence of qualification of the Company to transact
business as a foreign corporation in each jurisdiction in which it
owns or leases substantial properties or in which the conduct of
its business requires such qualification, except where the failure
to so qualify would not have a material adverse effect on the
financial condition of the Company and its subsidiaries taken as a
whole.
(d) On each of the Commencement Date and the Exchange
Date, you, as Dealer Managers, shall have received an opinion of
Stoel Rives Boley Jones & Grey, counsel for the Company ("Counsel
for the Company"), dated the respective dates of delivery thereof,
in form and substance satisfactory to Counsel for the Dealer
Managers, to the effect that:
(i) the Company is a corporation duly organized and
validly existing corporation under the laws of the State of
Oregon;
(ii) the Company has due corporate right and corporate
authority to own its properties and to carry on the business
in which it is engaged as described in the Prospectus and to
execute and deliver, and perform its obligations under, this
Agreement, the Indenture and the Debentures;
(iii) the Indenture has been duly authorized, executed
and delivered by the Company, has been duly qualified under
the Trust Indenture Act and is a valid and legally binding
agreement of the Company enforceable in accordance with its
terms, except as limited by bankruptcy, insolvency, fraudulent<PAGE>
conveyance, reorganization and other similar laws relating to
or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at
law);
(iv) the Debentures have been duly authorized and
executed by the Company and, when exchanged for Series 1992
Preferred Stock in accordance with the Exchange Offer, will
constitute valid and legally binding agreements of the Company
enforceable in accordance with their respective terms, except
as limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization and other similar laws relating to or affecting
creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law);
(v) the terms of the Debentures and the capital stock of
the Company conform as to legal matters to the descriptions
thereof and the statements in regard thereto contained in the
Registration Statement and the Prospectus; and the specimen of
the Debentures is in due and proper form;
(vi) this Agreement has been duly authorized, executed
and delivered by the Company;
(vii) the Exchange Agent Agreement has been duly
authorized, executed and delivered by the Company;
(viii) the making and consummation of the Exchange Offer
have been duly authorized by all necessary corporate action on
the part of the Company;
(ix) the Idaho Public Utilities Commission, the Montana
Public Service Commission, the Public Utility Commission of
Oregon, the Utah Public Service Commission and the Public
Service Commission of Wyoming have entered appropriate orders,
which to the best knowledge of such counsel remain in full
force and effect on the date of such opinion, each authorizing
the issuance and sale of the Debentures by the Company
pursuant to the Exchange Offer; the Washington Utilities and
Transportation Commission has entered an appropriate order,
which to the knowledge of such counsel remains in full force
and effect on the date of such opinion, as to the compliance
by the Company with the filing requirements of RCW 80.08.040;
and such orders constitute the only approval, authorization,
consent or other order of any governmental body legally
required for the authorization of the issuance and exchange of
the Debentures by the Company pursuant to the Exchange Offer,
except such as may be required under the Securities Act or
under state or other securities or Blue Sky laws;
(x) the execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement and the Exchange Agent Agreement, the making and
consummation of the Exchange Offer, the issuance and delivery<PAGE>
of the Debentures pursuant to the Exchange Offer, the
compliance by the Company with all of the provisions of this
Agreement and the Exchange Agent Agreement, and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default
under (i) the Articles or Bylaws of the Company, as amended,
or any indenture, mortgage, deed of trust or other material
agreement for money borrowed the terms of which are known to
such counsel to which the Company is a party or by which it
may be bound or (ii) any order, rule or regulation applicable
to the Company of any court or any federal or state regulatory
body or administrative agency or other governmental body
having jurisdiction over the Company or its properties;
(xi) the Registration Statement, at the applicable
effective date, and the Prospectus, at the time of any filing
pursuant to Rule 424(b) under the Securities Act (except in
each case as to financial statements and other financial and
statistical data contained therein, upon which such opinion
need not pass, and except for any Incorporated Documents),
complied as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture Act
and the respective rules and regulations of the Commission
thereunder; each Incorporated Document as originally filed
pursuant to the Exchange Act (except as to financial
statements and other financial and statistical data contained
therein, upon which such opinion need not pass) complied as to
form when so filed in all material respects with the
requirements of the Exchange Act and the rules and regulations
of the Commission thereunder; the Schedule 13E-4, as
originally filed and subsequently amended, and the other
Exchange Offer Materials (other than the Registration
Statement and the Prospectus) (except as to financial
statements and other financial and statistical data contained
therein, upon which such opinion need not pass) complied as to
form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder; the Registration Statement has become, and on the
date of such opinion is, effective under the Securities Act
and, to the best of such counsel's knowledge, no proceedings
for a stop order with respect thereto are threatened or
pending under Section 8 of the Securities Act; and nothing has
come to the attention of such counsel that has caused them to
believe that (i) the Registration Statement (except as to
financial statements and other financial and statistical data
contained therein, upon which such opinion need not pass), at
the applicable effective date, contained any untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
(except as to financial statements and other financial and
statistical data contained therein, upon which such opinion
need not pass), at the time of any filing pursuant to Rule<PAGE>
424(b) under the Securities Act or on the date of such
opinion, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or (ii) the Schedule 13E-4 and the other Exchange
Offer Materials (other than the Registration Statement and the
Prospectus) (except as to financial statements and other
financial and statistical data contained therein, upon which
such opinion need not pass), on the date originally filed and
subsequently amended or on the date of such opinion, included
or include any untrue statement of a material fact or omitted
or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading;
(xii) those portions of the Registration Statement or
the Prospectus that are stated therein to have been made on
the authority of such counsel have been reviewed by such
counsel and, as to matters of law and legal conclusions, are
correct; and
(xiii) to the best of such counsel's knowledge and
information, there are no legal or governmental proceedings
pending or threatened against the Company or its subsidiaries
that are required to be disclosed in the Registration
Statement and the Prospectus other than those disclosed
therein.
In rendering such opinion, Counsel for the Company may rely as to
matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and its subsidiaries and public
officials. References to the Exchange Offer Materials in this
Section 8(d) shall include any amendments or supplements thereto at
the date such opinion is rendered.
(e) On each of the Commencement Date and the Exchange
Date, you, as Dealer Managers, shall have received an opinion of
Counsel for the Dealer Managers, dated the respective dates of
delivery thereof, with respect to the matters set forth in
paragraphs (i), (iii), (iv), (v), (vi) and (ix) and the first,
third, fourth and fifth clauses of paragraph (xi) of Section 8(d)
hereof and other related matters as you may reasonably require, and
the Company shall have furnished to Counsel for the Dealer Managers
such documents as they request for the purpose of enabling them to
pass upon such matters. In rendering such opinion, Counsel for the
Dealer Managers may rely (i) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the
Company and (ii) upon the opinion of Counsel for the Company
rendered pursuant to Section 8(d) as to matters involving the
application of laws other than the laws of the State of New York.
(f) On each of the Commencement Date and the Exchange
Date, the Exchange Agent shall have furnished to you, as Dealer<PAGE>
Managers, a certificate, dated the respective dates of delivery
thereof, of an appropriate officer of the Exchange Agent, in form
and substance satisfactory to you, to the effect that:
(i) the Exchange Agent has been duly incorporated and is
validly existing as a trust company in good standing under the
laws of the State of New York, with full power, authority and
legal right under such law to execute, deliver and carry out
the terms of the Exchange Agent Agreement;
(ii) the Exchange Agent Agreement has been duly
authorized, executed and delivered by the Exchange Agent; and
(iii) the Exchange Agent Agreement constitutes a valid
and binding obligation of the Exchange Agent.
(g) On each of the Commencement Date and the Exchange
Date, Deloitte & Touche LLP shall have furnished to you, as Dealer
Managers, a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the
effect that:
(i) in their opinion, the consolidated financial
statements and schedules included or incorporated by reference
in the Registration Statement, the Prospectus and the Schedule
13E-4 and audited by them comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the rules and regulations of the Commission
thereunder;
(ii) on the basis of a reading of the unaudited
consolidated financial statements, if any, included or
incorporated by reference in the Registration Statement, the
Prospectus and the Schedule 13E-4 and the latest available
interim unaudited consolidated financial statements of the
Company, the performance of the procedures specified by the
American Institute of Certified Public Accountants for a
review of any such unaudited consolidated financial
information as described in Statement on Auditing Standards
No. 71, inquiries of officials of the Company responsible for
financial and accounting matters and a reading of the minutes
of meetings of the shareholders and the Board of Directors of
the Company and the Finance and Pricing Committees thereof
through a specified date not more than five Business Days
prior to the date of such letter, nothing came to their
attention that caused them to believe that: (A) any material
modification should be made to the unaudited consolidated
financial statements, if any, included or incorporated by
reference in the Registration Statement, the Prospectus and
the Schedule 13E-4 for them to be in conformity with generally
accepted accounting principles or any such unaudited
consolidated financial statements do not comply as to form in
all material respects with the applicable accounting
requirements of the Securities Act or the rules and<PAGE>
regulations of the Commission thereunder; (B) for the twelve
months ended as of the date of the latest available financial
statements of the Company, there were any decreases in
revenues, earnings on common stock or earnings per common
share as compared with the comparable period of the preceding
year; or (C) at the date of the latest available financial
statements of the Company and at a subsequent date not more
than five Business Days prior to the date of such letter,
there was any change in the capital stock (except for sales
under the Company's Dividend Reinvestment and Stock Purchase
Plan, K Plus Employee Savings and Stock Ownership Plan or Utah
Power & Light Company Employee Savings and Stock Purchase Plan
of PacifiCorp) or long-term debt of the Company or any
decrease in its net assets as compared with the amounts shown
in the most recent consolidated balance sheet included or
incorporated by reference in the Registration Statement, the
Prospectus and the Schedule 13E-4, except in all instances for
changes or decreases that the Registration Statement, the
Prospectus or the Schedule 13E-4 discloses have occurred or
may occur, or for changes or decreases that are described in
such letter that are reasonably satisfactory to you;
(iii) if unaudited pro forma financial statements are
included or incorporated by reference in the Registration
Statement, the Prospectus and the Schedule 13E-4, on the basis
of a reading of such financial statements, carrying out
certain specified procedures, inquiries of certain officials
of the Company and the company acquired or to be acquired who
have responsibility for financial and accounting matters and
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in such pro forma
financial statements, nothing came to their attention that
caused them to believe that such pro forma financial
statements do not comply in form in all material respects with
the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that such pro forma adjustments have not
been properly applied to such historical amounts in the
compilation of such pro forma financial statements; and
(iv) covering such other matters as you shall reasonably
request, including but not limited to the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" contained in the financial statements included or
incorporated by reference in the Registration Statement, the
Prospectus and the Schedule 13E-4 and any other information of
an accounting, financial or statistical nature included
therein.
References to the Registration Statement, the Prospectus and the
Schedule 13E-4 in this Section 8(g) shall include any amendments or
supplements thereto at the Commencement Date or the Exchange Date,
as the case may be.<PAGE>
(h) On each of the Commencement Date and the Exchange
Date, there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, as they may then be amended or supplemented, except as
may otherwise be stated therein or contemplated thereby, any
material adverse change in the condition of the Company and its
subsidiaries taken as a whole, financial or otherwise, or in the
earnings, affairs or business prospects of the Company and its
subsidiaries taken as a whole, whether or not arising in the
ordinary course of business; and, on each of the Commencement Date
and the Exchange Date, you, as Dealer Managers, shall have received
a certificate of the Company signed by the President or any Vice
President of the Company reasonably satisfactory to you, as Dealer
Managers, dated as of the respective dates of delivery thereof, to
the effect that (i) there has been no such material adverse change,
(ii) the other representations and warranties on the part of the
Company contained in this Agreement are true and correct (with the
same force and effect as though expressly made on and at and as of
the Commencement Date and the Exchange Date, except that references
therein to the Registration Statement, the Prospectus and the
Schedule 13E-4 shall include any amendments or supplements thereto
at such dates), (iii) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or
satisfied under this Agreement on or prior to the Commencement Date
and the Exchange Date and (iv) no stop order suspending the
effectiveness of the Registration Statement (as so amended or
supplemented) has been issued and no proceedings for the purpose
have been initiated or threatened by the Commission.
(i) On or after the date hereof there shall not have
occurred any of the following: (i) a banking moratorium declared
either by federal authorities or authorities in the States of New
York or Oregon, (ii) trading in securities generally on the NYSE or
of any securities of the Company being suspended by the Commission,
the NYSE or the Pacific Stock Exchange or the establishment by the
Commission or the NYSE, any federal or state agency or the decision
of any court of any limitation on the prices for such trading or
any restrictions on the distribution of such securities, (iii) any
outbreak or material escalation of hostilities or other calamity or
crisis affecting the financial markets of the United States shall
have occurred, (d) a downgrading in the ratings of any of the
Debentures or any preferred stock or first mortgage or first
mortgage and collateral trust bonds of the Company by any
"nationally recognized statistical rating organization" (as defined
for purposes of Rule 15c3-1 under the Exchange Act) or (e) any
change in the business or properties of the Company, the effect of
which is such as to make it impracticable to proceed with the sale
or delivery of the Debentures and, in the case of any of the events
specified in clauses (a) through (d) of this Section 8(i), the
effect of such event, singly or together with any other such
events, is such as to make it, in your judgment, impracticable to
proceed with the sale or delivery of the Debentures.<PAGE>
(j) On or prior to the Exchange Date, the Debentures
shall have been duly listed, subject to notice of issuance, on the
NYSE.
(k) On or prior to the Exchange Date, the Exchange
Agreement shall be in full force and effect.
(l) On or prior to the Exchange Date, Moody's Investors
Service, Inc. and Standard & Poor's Ratings Group shall have
publicly assigned to the Debentures ratings of [__] and [__],
respectively, which ratings shall be in full force and effect on
the Exchange Date.
(m) On the Commencement Date and the Exchange Date,
Counsel for the Dealer Managers shall have been furnished with such
documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the
Debentures as herein contemplated and related proceedings, or in
order to evidence the accuracy or completeness of any of the
representations or warranties, or the fulfillment of any of the
conditions herein contained, and all proceedings taken by the
Company in connection with the issuance and sale of the Debentures
and as herein contemplated shall be satisfactory in form and
substance to you, as Dealer Managers, and Counsel for the Dealer
Managers.
In case any of the conditions specified above in this
Section 8 shall not have been fulfilled, this Agreement may be
terminated by you upon mailing or delivering written notice thereof
to the Company. Any such termination shall be without liability of
either party to the other party except as otherwise provided in
Section 5(b) hereof and except for any liability under Section 7
hereof.
9. Miscellaneous. (a) This Agreement is made solely
for your benefit, as Dealer Managers, the Company and any officer,
partner, director or controlling person referred to in Section 7
hereof, and their respective successors, assigns and legal
representatives and no other person shall acquire to have any right
under or by virtue of this Agreement.
(b) Except as otherwise expressly provided in this
Agreement whenever notice is required by the provisions of this
Agreement to be given to (i) the Company, such notice shall be in
writing addressed to PacifiCorp, at 700 N.E. Multnomah, Suite 1600,
Portland, Oregon 97232, Attention of Richard T. O'Brien, Vice
President; (ii) Goldman, Sachs & Co., such notice shall be in
writing addressed to Goldman, Sachs & Co., at 85 Broad Street, New
York, New York 10004, Attention of Greg Power and (iii) Salomon
Brothers Inc, such notice shall be addressed in writing to Salomon
Brothers Inc, Seven World Trade Center, New York, New York 10048,
Attention of Marwan Marshi.<PAGE>
(c) This Agreement contains the entire understanding of
the parties with respect to each of you acting as Dealer Managers
in connection with the Exchange Offer and supersedes all of your
prior agreements understandings and negotiations with respect to
such activities. In the event that any provision hereof shall be
determined to be invalid or unenforceable in any respect, such
determination shall not affect such provision in any other respect
or any other provision hereof, which shall remain in full force and
effect. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. This Agreement
may be executed in any number of separate counterparts each of
which shall be an original, but all such counterparts shall
together constitute one and the same agreement.<PAGE>
If the foregoing is in accordance with your understanding
of our agreement please sign and return to us a duplicate of this
letter, whereupon it will become a binding agreement among the
Company and each of you.
Very truly yours,
PACIFICORP
By: RICHARD T. O'BRIEN
------------------------------------
Name: Richard T. O'Brien
Title: Vice President
The undersigned hereby
confirms that the foregoing
Agreement, as of the date
thereof, correctly sets forth
the agreement among the Company
and the undersigned.
- -------------------------------
Goldman, Sachs & Co.
SALOMON BROTHERS INC
By: ___________________________
Name:
Title:
April __, 1995
EXCHANGE AGENT AGREEMENT
------------------------
The Bank of New York
Corporate Trust Trustee Administration
101 Barclay Street - 21st Floor
New York, New York 10286
Ladies and Gentlemen:
PacifiCorp, an Oregon corporation (the "Company"),
proposes to make an offer (the "Exchange Offer") to exchange
its $1.98 No Par Serial Preferred Stock (the "Old Securities"),
for its __% Junior Subordinated Deferrable Interest Debentures,
Series A, due 2025, Series 1992 (the "New Securities"),
respectively. The terms and conditions of the Exchange Offer
as currently contemplated are set forth in a prospectus, dated
April __, 1995 (the "Prospectus"), proposed to be distributed
to all record holders of the Old Securities. The Old
Securities and the New Securities are collectively referred to
herein as the "Securities."
The Company hereby appoints The Bank of New York to
act as exchange agent (the "Exchange Agent") in connection with
the Exchange Offer. References hereinafter to "you shall refer
to The Bank of New York.
The Exchange Offer is expected to be commenced by the
Company on or about April __, 1995. The Letter of Transmittal
accompanying the Prospectus is to be used by the holders of the
Old Securities to accept the Exchange Offer, and contains
instructions with respect to the delivery of certificates for
Old Securities tendered.
The Exchange Offer shall expire at 5:00 P.M., New
York City time, on May __, 1995 or on such later date or time
to which the Company may extend the Exchange Offer (the
"Expiration Date"). Subject to the terms and conditions set
forth in the Prospectus, the Company expressly reserves the
right to extend the Exchange Offer from time to time and may
extend the Exchange Offer by giving oral (confirmed in writing)
or written notice to you before 9:00 A.M., New York City time,
on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right to amend or
terminate the Exchange Offer, and not to accept for exchange
any Old Securities not theretofore accepted for exchange, upon
the occurrence of any of the conditions of the Exchange Offer
<PAGE>
specified in the Prospectus under the caption "The Exchange
Offer--Expiration Date; Extensions; Amendments, Termination."]
The Company will give oral (confirmed in writing) or written
notice of any amendment, termination or nonacceptance to you as
promptly as practicable.
In carrying out your duties as Exchange Agent, you
are to act in accordance with the following instructions:
1. You will perform such duties and only such duties as
are specifically set forth in the section of the Prospectus
captioned "The Exchange Offer" or as specifically set forth
herein; provided, however, that in no way will your general
duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Old
Securities at The Depository Trust Company, Midwest Securities
Trust Company and Philadelphia Depository Trust Company (each,
a "Book-Entry Transfer Facility") for purposes of the Exchange
Offer within two business days after the date of the
Prospectus, and any financial institution that is a participant
in a Book-Entry Transfer Facility's systems may make book-
entry delivery of the Old Securities by causing such Book-
Entry Transfer Facility to transfer such Old Securities into
your account in accordance with such Book-Entry Transfer
Facility's procedures for such transfer.
3. You are to examine each of the Letters of Transmittal
and certificates for Old Securities (or confirmation of book-
entry transfer into your account at a Book-Entry Transfer
Facility) and any other documents delivered or mailed to you by
or for holders of the Old Securities to ascertain whether: (i)
the Letters of Transmittal and any such other documents are
duly executed and properly completed in accordance with
instructions set forth therein and (ii) the Old Securities have
otherwise been properly tendered. In each case where the
Letter of Transmittal or any other document has been improperly
completed or executed or any of the certificates for Old
Securities are not in proper form for transfer or some other
irregularity in connection with the acceptance of the Exchange
Offer exists, you will endeavor to inform the presenters of the
need for fulfillment of all requirements and to take any other
action as may be necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the President, any Vice
President or the Treasurer of the Company (such approval, if
given orally, to be confirmed in writing) or any other party
designated by such an officer in writing, you are authorized to
waive any irregularities in connection with any tender of Old
Securities pursuant to the Exchange Offer.
<PAGE>
5. Tenders of Old Securities may be made only as set
forth in the Letter of Transmittal and in the section of the
Prospectus captioned "The Exchange Offer--Procedures for
Tendering", and Old Securities shall be considered properly
tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this paragraph 5,
Old Securities which the President, any Vice President or the
Treasurer of the Company shall approve as having been properly
tendered shall be considered to be properly tendered (such
approval, if given orally, shall be confirmed in writing).
6. You shall advise the Company with respect to any Old
Securities received subsequent to the Expiration Date and
accept its instructions with respect to disposition of such Old
Securities.
7. You shall accept tenders:
(a) in cases where the Old Securities are registered
in two or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated
on the Letter of Transmittal) is acting in a fiduciary or a
representative capacity only when proper evidence of his or her
authority so to act is submitted; and
(c) from persons other than the registered holder of
Old Securities provided that customary transfer requirements,
including any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities
where so indicated and as permitted in the Letter of
Transmittal and deliver certificates for Old Securities to the
transfer agent for split-up and return any untendered Old
Securities to the holder (or such other person as may be
designated in the Letter of Transmittal) as promptly as
practicable after expiration or termination of the Exchange
Offer.
8. Upon satisfaction or waiver of all of the conditions
to the Exchange Offer, the Company will notify you (such notice
if given orally, to be confirmed in writing) of its acceptance,
promptly after the Expiration Date, of all Old Securities
properly tendered and you, on behalf of the Company, will
exchange such Old Securities for New Securities and cause such
Old Securities to be cancelled. Delivery of New Securities
will be made on behalf of the Company by you at the rate of $25
principal amount of New Securities for each share of the Old
<PAGE>
Securities tendered promptly after notice (such notice if given
orally, to be confirmed in writing) of acceptance of said Old
Securities by the Company; provided, however, that in all
cases, Old Securities tendered pursuant to the Exchange Offer
will be exchanged only after timely receipt by you of
certificates for such Old Securities (or confirmation of book-
entry transfer into your account at a Book-Entry Transfer
Facility), a properly completed and, except as described in the
section of the Prospectus captioned "The Exchange Offer--
Procedures for Tendering," duly executed Letter of Transmittal
(or facsimile thereof) with any required signature guarantees
and any other required documents. You shall issue New
Securities only in denominations of $25 or any integral
multiple thereof.
9. Tenders, pursuant to the Exchange Offer are
irrevocable, except that, subject to the terms and upon the
conditions set forth in the Prospectus and the Letter of
Transmittal, Old Securities tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration
Date.
10. The Company shall not be required to exchange any Old
Securities tendered if any of the conditions set forth in the
Exchange Offer are not met. Notice of any decision by the
Company not to exchange any Old Securities tendered shall be
given (and confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does
not accept for exchange all or part of the Old Securities
tendered because of any invalid tender, the occurrence of
certain other events set forth in the Prospectus under the
caption "The Exchange Offer" or otherwise, you shall as soon as
practicable after the expiration or termination of the Exchange
Offer return those certificates for unaccepted Old Securities
(or effect appropriate book-entry transfer), together with any
related required documents and the Letters of Transmittal
relating thereto that are in your possession, to the persons
who deposited them.
12. All certificates for reissued Old Securities,
unaccepted Old Securities or for New Securities shall be
forwarded by (a) first-class certified mail, return receipt
requested under a blanket surety bond protecting you and the
Company from loss or liability arising out of the nonreceipt or
nondelivery of such certificates or (b) by registered mail
insured separately for the replacement value of each of such
certificates.
13. You are authorized to pay solicitation fees to
Soliciting Brokers at the rate set forth in the Prospectus
<PAGE>
multiplied by the number of Old Securities set forth in the
Letters of Transmittal, if applicable, promptly after the
Company has accepted such Old Securities pursuant to the
Exchange Offer. The Company shall deposit funds with you in an
amount necessary to pay such fees promptly after you notify the
Company of the amounts due.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than
those specifically set forth herein or as may be subsequently
agreed to in writing by you and the Company;
(b) will be regarded as making no representations
and having no responsibilities as to the validity, sufficiency,
value or genuineness of any of the certificates or the Old
Securities represented thereby deposited with you pursuant to
the Exchange Offer, and will not be required to and will make
no representation as to the validity, value or genuineness of
the Exchange Offer;
(c) shall not be obligated to take any legal action
hereunder which might in your reasonable judgment involve any
expense or liability, unless you shall have been furnished with
reasonable indemnity;
(d) may reasonably rely on and shall be protected in
acting in reliance upon any certificate, instrument, opinion,
notice, letter, telegram or other document or security
delivered to you and reasonably believed by you to be genuine
and to have been signed by the proper party or parties;
(e) may reasonably act upon any tender, statement,
request, comment, agreement or other instrument whatsoever not
only as to its due execution and validity and effectiveness of
its provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith
believe to be genuine or to have been signed or represented by
a proper person or persons;
(f) may rely on and shall be protected in acting
upon written or oral instructions from any officer of the
Company;
(g) may consult with your counsel with respect to
any questions relating to your duties and responsibilities and
the advice or opinion of such counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by you hereunder in good
faith and in accordance with the advice or opinion of such
counsel; and
<PAGE>
(h) shall not advise any person tendering Old
Securities pursuant to the Exchange Offer as to the wisdom of
making such tender or as to the market value or decline or
appreciation in market value of any Old Securities.
15. You shall take such action as may from time to time
be requested by the Company or its counsel (and such other
action as you may reasonably deem appropriate) to furnish
copies of the Prospectus, Letter of Transmittal and the Notice
of Guaranteed Delivery (as defined in the Prospectus) or such
other forms as may be approved from time to time by the
Company, to all persons requesting such documents and to accept
and comply with telephone requests for information relating to
the Exchange Offer, provided such information shall relate only
to the procedures for accepting (or withdrawing from) the
Exchange Offer. The Company will furnish you with copies of
such documents at your request. All other requests for
information relating to the Exchange Offer shall be directed to
the Information Agent as defined in the Prospectus.
16. You shall advise by facsimile transmission or
telephone, and promptly thereafter confirm in writing to
Richard T. O'Brien of the Company and such other person or
persons as it may request, daily (and more frequently during
the week immediately preceding the Expiration Date and if
otherwise requested) up to and including the Expiration Date,
as to the number of Old Securities which have been tendered
pursuant to the Exchange Offer and the items received by you
pursuant to this Agreement, separately reporting and giving
cumulative totals as to items properly received and items
improperly received. In addition, you will also inform, and
cooperate in making available to, the Company or any such other
person or persons upon oral request made from time to time
prior to the Expiration Date of such other information as it or
he or she reasonably requests. Such cooperation shall include,
without limitation, the granting by you to the Company and such
person as the Company may request of access to those persons on
your staff who are responsible for receiving tenders, in order
to ensure that immediately prior to the Expiration Date the
Company shall have received information in sufficient detail to
enable it to decide whether to extend the Exchange Offer. You
shall prepare a final list of all persons whose tenders were
accepted, the aggregate principal amount of Old Securities
tendered, the aggregate principal amount of Old Securities
accepted, a final list of Soliciting Dealers, the amount of
solicitation fees payable to each Soliciting Dealer according
to the Letters of Transmittal, if applicable, and the aggregate
amount of solicitation fees, and deliver said list to the
Company.
<PAGE>
17. Letters of Transmittal and Notices of Guaranteed
Delivery shall be stamped by you as to the date and the time of
receipt thereof and shall be preserved by you for a period of
time at least equal to the period of time you preserve other
records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus
materials by returning them to the Company.
18. You hereby expressly waive any lien, encumbrance or
right of set-off whatsoever that you may have with respect to
funds deposited with you for the payment of transfer taxes or
solicitation fees by reasons of amounts, if any, borrowed by
the Company, or any of its subsidiaries or affiliates pursuant
to any loan or credit agreement with you or for compensation
owed to you hereunder.
19. For services rendered as Exchange Agent hereunder,
you shall be entitled to such compensation as set forth on
Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus and
the Letter of Transmittal and further acknowledge that you have
examined each of them. Any inconsistency between this
Agreement, on the one hand, and the Prospectus and the Letter
of Transmittal (as they may be amended from time to time), on
the other hand, shall be resolved in favor of the latter two
documents, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent, which shall be
controlled by this Agreement.
21. The Company covenants and agrees to indemnify and
hold you harmless in your capacity as Exchange Agent hereunder
against any loss, liability, cost or expense, including
attorneys' fees and expenses arising out of or in connection
with any act, omission, delay or refusal made by you in
reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, instruction or other
instrument or document reasonably believed by you to be valid,
genuine and sufficient and in accepting any tender or effecting
any transfer of Old Securities reasonably believed by you in
good faith to be authorized, and in delaying or refusing in
good faith to accept any tenders or effect any transfer of Old
Securities; provided, however, that the Company shall not be
liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of your
gross negligence or willful misconduct. In no case shall the
Company be liable under this indemnity with respect to any
claim against you unless the Company shall be notified by you,
by letter or cable or by facsimile confirmed by letter, of the
written assertion of a claim against you or of any other action
commenced against you, promptly after you shall have received
<PAGE>
any such written assertion or notice of commencement of action.
The Company shall be entitled to participate at its own expense
in the defense of any such claim or other action, and, if the
Company so elects, the Company shall assume the defense of any
suit brought to enforce any such claim. In the event that the
Company so elects, the Company shall assume the defense of any
suit brought to enforce any such claim. In the event that the
Company shall assume the defense of any such suit, the Company
shall not be liable for the fees and expenses of any additional
counsel thereafter retained by you so long as the Company shall
retain counsel satisfactory to you to defend such suit.
22. You shall arrange to comply with all requirements
under the tax laws of the United States, including those
relating to missing Tax Identification Numbers, and shall file
any appropriate reports with the Internal Revenue Service. The
Company understands that you are required to deduct 31 percent
on payments to holders who have not supplied their correct
Taxpayer Identification Number or required certification. Such
funds will be turned over to the Internal Revenue Service in
accordance with applicable regulations.
23. You shall deliver or cause to be delivered, in a
timely manner to each governmental authority to which any
transfer taxes are payable in respect of the exchange of Old
Securities, your check in the amount of all transfer taxes so
payable, and the Company shall reimburse you for the amount of
any and all transfer taxes payable in respect of the exchange
of Old Securities; provided, however, that you shall reimburse
the Company for amounts refunded to you in respect of your
payment of any such transfer taxes, at such time as such refund
is received by you.
24. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with
the laws of the State of New York applicable to agreements made
and to be performed entirely within such state, and without
regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original
and all of which taken together shall constitute one and the
same agreement.
26. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
<PAGE>
27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or
in part, except by a written instrument signed by a duly
authorized representative of the party to be charged. This
Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices,
requests and other communications to any party hereunder shall
be in writing (including facsimile or similar writing) and
shall be given to such party, addressed to it, at its address
or telecopy number set forth below:
If to the Company:
PacifiCorp
700 NE Multnomah, Suite 1600
Portland, OR 97232
Facsimile: (503) 731-2136
Attention: Vice President (Finance)
If to the Exchange Agent:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Facsimile: (212) 815-5915
Attention: Corporate Trust Trustee
Administration
29. Unless terminated earlier by the parties
hereto, this Agreement shall terminate 90 days following the
Expiration Date. Notwithstanding the foregoing, paragraphs 19,
21 and 23 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Securities, funds
or property then held by you as Exchange Agent under this
Agreement.
30. This Agreement shall be binding and effective as of
the date hereof.
<PAGE>
Please acknowledge receipt of this Agreement and
confirm the arrangements herein provided by signing and
returning the enclosed copy.
PACIFICORP
By:______________________________
Name: Richard T. O'Brien
Title: Vice President
Accepted as the date
first above written:
THE BANK OF NEW YORK, as
Exchange Agent
By:_______________________________
Name:
Title:
<PAGE>
SCHEDULE I
FEES
Exchange Agent Services (per item) . . . . . . . . . . . .$7.50
Minimum Fee . . . . . . . . . . . . . . . . . . . . .$5,000.00
Processing Letters of Transmittal
/ / Administrative set-up
/ / Process letters of transmittals
/ / Receive and examine preferred stock
/ / Issue new security (debentures)
/ / Debit old certificates from records
/ / Answer phone inquiries
TERMS OF PROPOSAL
/ / Out-of-pocket expenses are defined as costs paid by
The Bank of New York for the purchase of goods or
services required to fulfill our obligations as
Exchange Agent or for other related services.
Examples of these expenses are: stationery,
postage, retention of records, etc. Out-of-pocket
expenses are billed to our customers on a cost-to-
us basis for goods or services received. The bills
you receive are for pass-through costs only. We do
not add on a service or handling charge.
/ / All fees are based upon the use of automatic
equipment. Any services requiring manual processing
and/or overtime, will result in a special or higher
charge.
EXHIBIT 99(c)
April 3, 1995
PacifiCorp
700 NE Multnomah
Portland, OR 97232
LETTER OF AGREEMENT
-------------------
This Letter of Agreement (the "Agreement") sets forth the terms
and conditions under which Georgeson & Company Inc.
("Georgeson") has been retained by PacifiCorp as Information
Agent for its offer to exchange shares of its $1.98 No Par
Serial Preferred Stock, Series 1992 (the "Series 1992 Preferred
Stock") (the "Offer"). The term of the Agreement shall be the
term of the Offer, including any extensions thereof.
1. During the term of the Agreement, Georgeson will:
provide advice and consultation with respect to the
planning and execution of the Offer; assist in the
preparation and placement of newspaper ads; assist in
the distribution of Offer documents to brokers,
banks, nominees, institutional investors, and other
shareholders and investment community accounts;
answer collect telephone inquiries from shareholders
and their representatives; and, if requested, call
individuals who are registered holders or Non-
Objecting Beneficial Owners ("NOBO's").
2. PacifiCorp will pay Georgeson a fee of $7,500, of
which half is payable in advance per the enclosed
invoice and the balance at the expiration of the
Offer, plus an additional fee to be mutually agreed
upon if the Offer is extended more than fifteen days
beyond the initial expiration date. PacifiCorp will
also pay Georgeson a fee of $5.00 per call for each
incoming call from registered shareholders. If
Georgeson is requested to call individuals who are
registered holders or NOBO's of the Series 1992
Preferred Stock. PacifiCorp will pay Georgeson an
additional sum computed on the basis of $5.00 per
call. In addition, PacifiCorp will reimburse
Georgeson for reasonable costs and expenses incurred
by Georgeson in fulfilling the Agreement, including
but not limited to: expenses incurred by Georgeson
in the preparation and placement of newspaper ads,
including typesetting and space charges; postage and
freight charges incurred by Georgeson in the delivery
of Offer documents; printing costs; charges for the
production of shareholder lists (paper, computer
cards, etc.), statistical analyses, mailing labels,
or other forms of information requested by PacifiCorp
or its agents and other expenses or disbursements
authorized by PacifiCorp or its agents.
3. Georgeson hereby agrees not to make any
representations not included in the Offer documents.
4. PacifiCorp agrees to indemnify and hold Georgeson
harmless against any loss, damage, expense
(including, without limitation, legal and other
related fees and expenses), liability or claim
arising out of Georgeson's fulfillment of the
Agreement (except for any loss, damage, expense,
liability or claim arising out of Georgeson's own
negligence or misconduct). At its election,
PacifiCorp may assume the defense of any such action.
Georgeson hereby agrees to advise PacifiCorp of any
such liability or claim promptly after receipt of any
notice thereof. The indemnification contained in
this paragraph will survive the term of the
Agreement.
5. Georgeson agrees to preserve the confidentiality of
all non-public information provided by PacifiCorp or
its agents for our use in providing services under
this Agreement, or information developed by Georgeson
based upon such nonpublic information.
By executing the Agreement below the undersigned agrees to be
bound by its terms.
ACCEPTED: Sincerely,
PACIFICORP GEORGESON & COMPANY INC.
By: RICHARD T. O'BRIEN By: DONNA M. ACKERLY
---------------------- -----------------------
Richard T. O'Brien Donna M. Ackerly
Title: Vice President Title: Vice President
Date: April 6, 1995
LETTER OF TRANSMITTAL
for
$1.98 No Par Serial Preferred Stock, Series 1992
of
PACIFICORP
The Exchange Offer Will Expire at 5:00 P.M.,
New York City Time,
on May __, 1995, Unless Extended
(the "Expiration Date") by PacifiCorp
Exchange Agent:
The Bank of New York
By Hand or Overnight Courier: By Mail:
The Bank of New York The Bank of New York
101 Barclay Street PO Box 11248
New York, NY 10286 Church Street Station
Attention: Tender and Exchange New York, NY 10286
Receive and Deliver Window, Attention: Tender and
Street Level Exchange
By Facsimile:
(for Eligible Institutions only)
(212) 815-6213
Confirm Receipt of Notice of Guaranteed
Delivery by Telephone:
(800) 507-9357
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges receipt of the Prospectus
dated April ___, 1995 (the "Prospectus") of PacifiCorp (the
"Company") which, together with this Letter of Transmittal (the
"Letter of Transmittal"), describes the Company's offer (the
"Exchange Offer") to exchange up to $125,000,000 aggregate
principal amount of its ___% Quarterly Income Debt Securities
(QUIDSSM) (Junior Subordinated Deferrable Interest Debentures,
Series A, due 2025) (the "Debentures") for up to all of the
outstanding shares of its $1.98 No Par Serial Preferred Stock,
Series 1992 (the "Series 1992 Preferred Stock"). Exchanges
will be effected on the basis of $25 principal amount of
Debentures (the minimum permitted denomination) for each share
of Series 1992 Preferred Stock (liquidation preference $25 per
share) validly tendered and accepted for exchange in the
Exchange Offer.
The undersigned has checked the appropriate boxes below and
signed this Letter of Transmittal to indicate the action the
undersigned desires to take with respect to the Exchange Offer.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND
THE PROSPECTUS CAREFULLY BEFORE CHECKING ANY BOX BELOW.
THE INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL
MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE
REGARDING THE EXCHANGE OFFER AND REQUESTS FOR ADDITIONAL COPIES
OF THE PROSPECTUS AND THIS LETTER OF TRANSMITTAL AND FOR
NOTICES OF GUARANTEED DELIVERY MAY BE DIRECTED TO THE
INFORMATION AGENT REFERRED TO BELOW.
Information Agent:
GEORGESON
& COMPANY INC.
Wall Street Plaza
New York, NY 10005
Banks and Brokers call collect (212) 440-9800
Call Toll Free: (800) 223-2064
List below the Series 1992 Preferred Stock to which this
Letter of Transmittal relates. If the space provided below is
inadequate, the Certificate Number(s) and Number of Shares
should be listed on a separate signed schedule affixed hereto.
<TABLE>
DESCRIPTION OF SERIES 1992 PREFERRED STOCK TENDERED HEREWITH
<CAPTION>
- ------------------------------------------------------------------------------------------
Number of
Name(s) and Address(es) Shares Number of
of Registered Holder(s) Certificate Represented by Shares
(Please fill in) Number(s)* Certificate(s)* Tendered**
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C>
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Total
- ------------------------------------------------------------------------------------------
<FN>
* Need not be completed by holders of Series 1992 Preferred Stock tendered by book-entry
transfer.
** Unless otherwise indicated, the holder will be deemed to have tendered the full number of
shares of Series 1992 Preferred Stock represented by the tendered certificates. See
Instruction 2.
</TABLE>
<PAGE>
This Letter of Transmittal is to be used either (i) if
certificates for Series 1992 Preferred Stock are to be
forwarded herewith or (ii) unless an Agent's Message (as
defined in the Prospectus) is to be utilized, if delivery of
Series 1992 Preferred Stock is to be made by book-entry
transfer to an account maintained by the Exchange Agent at The
Depository Trust Company ("DTC"), Midwest Securities Trust
Company ("MSTC") or Philadelphia Depository Trust Company
("PDTC") (each, a "Book-Entry Transfer Facility"), pursuant to
the procedures set forth in "The Exchange Offer - Procedures
for Tendering" in the Prospectus.
Unless the context requires otherwise, the term "Holder"
for purposes of this Letter of Transmittal means (i) any person
in whose name Series 1992 Preferred Stock is registered on the
books of the Company, (ii) any other person who has obtained a
properly completed stock power from the registered holder or
(iii) any person whose Series 1992 Preferred Stock is held of
record by any Book-Entry Transfer Facility who desires to
deliver such Series 1992 Preferred Stock by book-entry transfer
at such Book-Entry Transfer Facility.
Holders whose Series 1992 Preferred Stock is not
immediately available or who cannot deliver their Series 1992
Preferred Stock and all other documents required hereby to the
Exchange Agent prior to the Expiration Date may tender their
Series 1992 Preferred Stock according to the guaranteed
delivery procedure set forth in the Prospectus under the
caption "The Exchange Offer - Procedures for Tendering -
Guaranteed Delivery."
(BOXES BELOW FOR USE BY ELIGIBLE INSTITUTIONS ONLY)
/ / CHECK HERE IF TENDERED SERIES 1992 PREFERRED STOCK IS
BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT
MAINTAINED BY THE EXCHANGE AGENT AT ONE OF THE BOOK-ENTRY
TRANSFER FACILITIES AND COMPLETE THE FOLLOWING:
Name of Tendering Institution: __________________________
Check applicable box: / / DTC / / MSTC / /
PDTC
Account Number: _______ Transaction Code Number: _______
/ / CHECK HERE IF TENDERED SERIES 1992 PREFERRED STOCK IS
BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s): ________________________
Name of Eligible Institution
that Guaranteed Delivery: _____________________________
IF DELIVERED BY BOOK-ENTRY TRANSFER:
Account Number: __________ at / / DTC / / MSTC / / PDTC
Transaction Code Number: _________________________________<PAGE>
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the
Exchange Offer, the undersigned hereby tenders to the Company
the above-described Series 1992 Preferred Stock. Subject to,
and effective upon, the acceptance for exchange of the Series
1992 Preferred Stock tendered herewith, the undersigned hereby
exchanges, assigns and transfers to,or upon the order of, the
Company all right, title and interest in and to such Series
1992 Preferred Stock. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as the true and
lawful agent and attorney-in-fact of the undersigned (with full
knowledge that the Exchange Agent acts as the agent of the
undersigned in connection with the Exchange Offer) to cause the
Series 1992 Preferred Stock to be assigned, transferred and
exchanged. The undersigned represents and warrants that the
undersigned has full power and authority to tender, exchange,
assign and transfer the Series 1992 Preferred Stock and to
acquire Debentures issuable upon the exchange of such tendered
Series 1992 Preferred Stock, and that,when the Series 1992
Preferred Stock is accepted for exchange, the Company will
acquire good and unencumbered title to the tendered Series 1992
Preferred Stock, free and clear of all liens, restrictions,
charges and encumbrances and not subject to any adverse claim.
The undersigned also warrants that the undersigned will, upon
request, execute and deliver any additional documents deemed by
the Exchange Agent or the Company to be necessary or desirable
to complete the exchange, assignment and transfer of tendered
Series 1992 Preferred Stock or to transfer ownership of such
Series 1992 Preferred Stock on the account books maintained by
the applicable Book-Entry Transfer Facility. All authority
herein conferred or agreed to be conferred shall survive the
death, bankruptcy or incapacity of the undersigned and every
obligation of the undersigned hereunder shall be binding upon
the heirs, personal representatives, successors and assigns of
the undersigned.
The Company has expressly reserved the right to amend or
modify the terms of the Exchange Offer in any manner and to
withdraw or terminate the Exchange Offer, at any time for any
reason, including (without limitation) if fewer than 1,000,000
shares of Series 1992 Preferred Stock are tendered (which
condition may be waived by the Company). The undersigned
recognizes that as a result of the foregoing, the Company may
not be required to exchange any of the Series 1992 Preferred
Stock tendered hereby and, in such event, the Series 1992
Preferred Stock not exchanged will be returned to the
undersigned at the address shown below the signature of the
undersigned. Tendered Series 1992 Preferred Stock may be
withdrawn at any time prior to the Expiration Date and, unless
accepted for exchange by the Company, may be withdrawn by
written notice to the Exchange Agent at any time after 40
business days after the date of the Prospectus.
Unless otherwise indicated under "Special Exchange
Instructions," certificates for all Debentures delivered in
exchange for tendered Series 1992 Preferred Stock and any
Series 1992 Preferred Stock delivered herewith but not
exchanged shall be registered in the name of the undersigned.
Similarly, unless otherwise indicated under "Special Delivery
Instructions," certificates for all Debentures delivered in
exchange for tendered Series 1992 Preferred Stock and any
Series 1992 Preferred Stock delivered herewith but not
exchanged shall be delivered to the undersigned at the address
shown below the signature of the undersigned. If both "Special
Exchange Instructions" and "Special Delivery Instructions" are
completed, certificates for all Debentures delivered in
exchange for tendered Series 1992 Preferred Stock and any
Series 1992 Preferred Stock delivered herewith but not
exchanged shall be registered in the name of the person
indicated and delivered to the address shown in such
instructions.
- ---------------------------------------------------------------
SOLICITED TENDERS
(See Instruction 12)
The Company will pay to any Soliciting Dealer, as defined in
Instruction 12, a solicitation fee of $0.50 per share for each
share of Series 1992 Preferred Stock tendered and exchanged
pursuant to the Exchange Offer.
The tendering Holder represents that the Soliciting Dealer
which solicited and obtained this tender is:
Name of Firm: _________________________________________________
(Please Print)
Name of Individual Broker or Financial Consultant: ____________
_______________________________________________________________
Identification Number (if known): _____________________________
Address: ______________________________________________________
(Include Zip Code)
The following to be completed ONLY if customers' shares held in
nominee name are tendered.
Name of Beneficial Owner Number of Shares Tendered
_____________________________ _____________________________
_____________________________ _____________________________
_____________________________ _____________________________
_____________________________ _____________________________
_____________________________ _____________________________
The acceptance of compensation by such Soliciting Dealer will
constitute a representation by it that: (i) it has complied
with the applicable requirements of the Securities Exchange Act
of 1934, as amended, and the applicable rules and regulations
of the Securities and Exchange Commission thereunder, in
connection with such solicitation; (ii) it is entitled to such
compensation for such solicitation under the terms and
conditions of the Exchange Offer; (iii) in soliciting tenders
of shares of Series 1992 Preferred Stock it has used no
soliciting materials other than those furnished by the Company;
and (iv) if it is a foreign broker or dealer not eligible for
membership in the National Association of Securities Dealers,
Inc. (the "NASD"), it has agreed to conform to the NASD's Rules
of Fair Practice in making solicitations.
- ---------------------------------------------------------------
<PAGE>
TENDERING HOLDER(S) SIGN HERE
(Complete Accompanying Substitute Form W-9)
_______________________________________________________________
_______________________________________________________________
Signature of Holder(s)
Dated: _______________, 1995
(Must be signed by registered holder(s) exactly as name(s)
appear(s) on certificate(s) for Series 1992 Preferred Stock or
by any person(s) authorized to become registered holder(s) by
endorsements and documents transmitted herewith. If signature
is by a trustee, executor, administrator, guardian, attorney-
in-fact, officer of a corporation or other person acting in a
fiduciary or representative capacity, please set forth the full
title of such person.) See Instruction 3.
Name(s): ______________________________________________________
_______________________________________________________________
(Please Print)
Capacity (full title): ________________________________________
Address: ______________________________________________________
_______________________________________________________________
(Including Zip Code)
Area Code and Telephone No. ___________________________________
Taxpayer Identification No. ___________________________________
GUARANTEE OF SIGNATURE(S)
(If Required - See Instruction 3)
Authorized Signature: _________________________________________
Name: _________________________________________________________
Title: ________________________________________________________
Address: ______________________________________________________
Name of Firm: _________________________________________________
Area Code and Telephone No. ___________________________________
Dated: _______________, 1995
SPECIAL EXCHANGE INSTRUCTIONS
(See Instructions 1, 2, 3, 4 and 11)
To be completed ONLY if the Debentures to be exchanged for
Series 1992 Preferred Stock, or if certificates for shares of
Series 1992 Preferred Stock not tendered or not accepted for
exchange, are to be issued or recorded in the name of someone
other than the tendering Holder.
/ / Record beneficial interest in the Debentures by book-
entry transfer to:
/ / Issue certificates for the Debentures to:
/ / Record beneficial interest in Series 1992 Preferred Stock
by book-entry transfer to:
/ / Issue certificates for the Series 1992 Preferred Stock
to:
Name(s): ______________________________________________________
(Please Print)
Address: ______________________________________________________
_______________________________________________________________
_______________________________________________________________
(Including Zip Code)
Taxpayer Identification No. ___________________________________
If recorded by book-entry transfer:
Name of Institution: __________________________________________
Account Number: _______________________________________________
at / / DTC / / MSTC / / PDTC
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 3 and 11)
To be completed ONLY if the Debentures to be exchanged for
Series 1992 Preferred Stock, or if certificates for shares of
Series 1992 Preferred Stock not tendered or not accepted for
exchange, are to be mailed to someone other than the tendering
Holder or to the tendering Holder at an address other than that
shown below the undersigned's signature.
/ / Mail Debentures and/or certificates to:
Name(s): ______________________________________________________
(Please Print)
Address: ______________________________________________________
_______________________________________________________________
_______________________________________________________________
(Including Zip Code)
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of This Letter of Transmittal and
Certificates. Certificates for all physically delivered Series
1992 Preferred Stock, as well as a properly completed and duly
executed copy of this Letter of Transmittal or facsimile
thereof, and any other documents required by this Letter of
Transmittal, or confirmation of any book-entry transfer to the
Exchange Agent's account at one of the Book-Entry Transfer
Facilities of Series 1992 Preferred Stock tendered by book-
entry transfer (together with an Agent's Message or this Letter
of Transmittal), must be received by the Exchange Agent at
either of its addresses set forth herein prior to the
Expiration Date.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE
SERIES 1992 PREFERRED STOCK AND ANY OTHER REQUIRED DOCUMENTS IS
AT THE ELECTION AND RISK OF THE HOLDER AND, EXCEPT AS OTHERWISE
PROVIDED BELOW, THE DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF SUCH DELIVERY IS
BY MAIL, IT IS SUGGESTED THAT REGISTERED MAIL WITH RETURN
RECEIPT REQUESTED, PROPERLY INSURED, BE USED AND THAT THE
MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE EXPIRATION DATE
TO PERMIT DELIVERY TO THE EXCHANGE AGENT ON OR BEFORE THE
EXPIRATION DATE.
Holders whose Series 1992 Preferred Stock is not
immediately available or who cannot deliver their Series 1992
Preferred Stock and all other required documents to the
Exchange Agent prior to the Expiration Date or comply with
book-entry transfer procedures on a timely basis may tender
their Series 1992 Preferred Stock pursuant to the guaranteed
delivery procedure set forth in the Prospectus under "The
Exchange Offer - Procedures for Tendering - Guaranteed
Delivery." Pursuant to such procedure: (i) such tender must
be made by or through an Eligible Institution (as defined in
Instruction 3); (ii) on or prior to the Expiration Date the
Exchange Agent must have received from such Eligible
Institution a letter, telegram or facsimile transmission
setting forth the name and address of the tendering Holder, the
name(s) in which such Series 1992 Preferred Stock is registered
and, if possible, the certificate number(s) of the Series 1992
Preferred Stock to be tendered; and (iii) all tendered Series
1992 Preferred Stock as well as this Letter of Transmittal and
all other documents required by this Letter of Transmittal, or
a confirmation of any book-entry transfer of such Series 1992
Preferred Stock into the Exchange Agent's account at one of the
Book-Entry Transfer Facilities (together with an Agent's
Message or this Letter of Transmittal), must be received by the
Exchange Agent within five New York Stock Exchange trading days
after the date of execution of such letter, telegram or
facsimile transmission, all as provided in the Prospectus under
the caption "The Exchange Offer - Procedures for Tendering -
Guaranteed Delivery."
Alternative, conditional, irregular or contingent tenders
are subject to rejection. All tendering Holders, by execution
of this Letter of Transmittal (or facsimile thereof), shall
waive any right to receive notice of the acceptance of the
Series 1992 Preferred Stock for exchange.
2. Partial Tenders; Withdrawals. If less than the
entire number of shares of Series 1992 Preferred Stock
evidenced by a submitted certificate is tendered, the tendering
Holder must fill in the number of shares of Series 1992
Preferred Stock tendered in the box entitled "Number of Shares
Tendered." A newly issued certificate for Series 1992
Preferred Stock submitted but not tendered will be sent to such
Holder (unless otherwise provided in the appropriate box on
this Letter of Transmittal) as soon as practicable after the
Expiration Date. All Series 1992 Preferred Stock delivered to
the Exchange Agent will be deemed to have been tendered unless
otherwise indicated.
Tenders of Series 1992 Preferred Stock pursuant to the
Exchange Offer may be withdrawn at any time prior to the
Expiration Date and, unless accepted for exchange by the
Company, may be withdrawn at any time after 40 business days
after the date of the Prospectus. To be effective, a written
notice of withdrawal delivered by mail, hand delivery or
facsimile transmission must be timely received by the Exchange
Agent. Any such notice of withdrawal must specify (i) the
Holder named in the Letter of Transmittal as having tendered
Series 1992 Preferred Stock to be withdrawn, (ii) if the Series
1992 Preferred Stock is held in certificated form, the
certificate number(s) of the Series 1992 Preferred Stock to be
withdrawn, (iii) a statement that such Holder is withdrawing
its election to have such Series 1992 Preferred Stock exchanged
and (iv) the name of the registered Holder of such Series 1992
Preferred Stock, and must be signed by such Holder in the same
manner as the original signature on this Letter of Transmittal
(including any required signature guarantees) or be accompanied
by evidence satisfactory to the Company that the person
withdrawing the tender has succeeded to the beneficial
ownership of the Series 1992 Preferred Stock being withdrawn.
The Exchange Agent will return properly withdrawn Series 1992
Preferred Stock promptly following receipt of notice of
withdrawal. If Series 1992 Preferred Stock has been tendered
pursuant to the procedure for book-entry transfer, any notice
of withdrawal must specify the name and number of the account
at a Book-Entry Transfer Facility to be credited with the
withdrawn Series 1992 Preferred Stock and otherwise comply with
such Book-Entry Transfer Facility's procedures. All questions
as to the validity of notice of withdrawal, including time of
receipt, will be determined by the Company, and such
determination will be final and binding on all parties.
Withdrawals of tenders of Series 1992 Preferred Stock may not
be rescinded and any Series 1992 Preferred Stock withdrawn will
thereafter be deemed not validly tendered for purposes of the
Exchange Offer. Properly withdrawn Series 1992 Preferred
Stock, however, may be retendered by following the procedures
therefor at any time prior to the Expiration Date.
3. Signature on This Letter of Transmittal; Written
Instruments and Endorsements; Guarantee of Signatures. If this
Letter of Transmittal is signed by the registered Holder(s) of
the Series 1992 Preferred Stock tendered hereby, the signature
must correspond with the name(s) as written on the face of the
certificate(s) for Series 1992 Preferred Stock, without
alteration, enlargement or any change whatsoever.
If any of the Series 1992 Preferred Stock tendered hereby
is owned of record by two or more joint owners, all such owners
must sign this Letter of Transmittal.
If a number of shares of Series 1992 Preferred Stock
registered in different names are tendered, it will be
necessary to complete, sign and submit as many separate copies
of this Letter of Transmittal as there are different
registrations of Series 1992 Preferred Stock.
When this Letter of Transmittal is signed by the
registered Holder or Holders of Series 1992 Preferred Stock
listed and tendered hereby, no endorsements of certificates or
separate written instruments of transfer or exchange are
required.
If this Letter of Transmittal is signed by a person other
than the registered Holder(s) of the Series 1992 Preferred
Stock listed, such Series 1992 Preferred Stock must be endorsed
or accompanied by separate written instruments of transfer or
exchange in form <PAGE>
satisfactory to the Company and duly executed by the registered
Holder(s), in either case signed exactly as the name(s) of the
registered Holder(s) appear(s) on the Series 1992 Preferred
Stock.
If this Letter of Transmittal, any certificates for
Series 1992 Preferred Stock or separate written instruments of
transfer or exchange are signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and,
unless waived by the Company, proper evidence satisfactory to
the Company of their authority so to act must be submitted.
Endorsements on certificates for Series 1992 Preferred
Stock or signatures on separate written instruments of transfer
or exchange required by this Instruction 3 must be guaranteed
by a financial institution (including most banks, savings and
loans associations and brokerage houses) that is a participant
in the Security Transfer Agents Medallion Program, The New York
Stock Exchange Medallion Signature Guarantee Program or the
Stock Exchange Medallion Program (any of the foregoing
hereinafter referred to as an "Eligible Institution").
Signatures on this Letter of Transmittal need not be
guaranteed by an Eligible Institution, provided the Series 1992
Preferred Stock is tendered (i) by a registered Holder of such
Series 1992 Preferred Stock or (ii) for the account of an
Eligible Institution.
4. Transfer Taxes. The Company shall pay all transfer
taxes, if any, applicable to the transfer and exchange of
Series 1992 Preferred Stock pursuant to the Exchange Offer.
If, however, certificates representing Debentures, or shares of
Series 1992 Preferred Stock not tendered or accepted for
exchange, are to be delivered to, or are to be registered or
issued in the name of, any person other than the registered
Holder(s) of the Series 1992 Preferred Stock tendered hereby,
or if a transfer tax is imposed for any reason other than the
transfer and exchange of Series 1992 Preferred Stock pursuant
to the Exchange Offer, the amount of any such transfer taxes
(whether imposed on the registered Holder(s) or any other
person(s)) will be payable by the tendering Holder(s). If
satisfactory evidence of payment of such taxes or exception
therefrom is not submitted herewith, the amount of such
transfer taxes will be billed directly to such tendering
Holder(s).
Except as provided in this Instruction 4, it will not be
necessary for transfer tax stamps to be affixed to the
certificates for Series 1992 Preferred Stock listed in this
Letter of Transmittal.
5. Extensions, Amendments and Termination. The Company
expressly reserves the right to amend or modify the terms of
the Exchange Offer in any manner and to withdraw or terminate
the Exchange Offer and not accept for exchange any Series 1992
Preferred Stock, at any time for any reason, including (without
limitation) if fewer than 1,000,000 shares of Series 1992
Preferred Stock are tendered (which condition may be waived by
the Company).
6. Mutilated, Lost, Stolen or Destroyed Certificates.
Any Holder whose certificates for Series 1992 Preferred Stock
have been mutilated, lost, stolen or destroyed should contact
the Exchange Agent at the address indicated below for further
instructions.
7. Requests for Assistance or Additional Copies.
Questions relating to the procedure for tendering, as well as
requests for additional copies of the Prospectus and this
Letter of Transmittal and for Notices of Guaranteed Delivery,
may be directed to the Exchange Agent at the addresses and
telephone number set forth above. In addition, all questions
relating to the Exchange Offer, as well as requests for
assistance or additional copies of the Prospectus and this
Letter of Transmittal, may be directed to Georgeson & Company
Inc., the Information Agent for the Exchange Offer, at Wall
Street Plaza, New York, NY 10005, telephone (800) 223-2064.
8. Irregularities. All questions as to the validity,
form, eligibility (including time of receipt) and acceptance
for exchange of Letters of Transmittal or Series 1992 Preferred
Stock will be resolved by the Company, whose determination will
be final and binding on all parties. The Company reserves the
absolute right to reject any or all Letters of Transmittal or
tenders that are not in proper form or the acceptance for
exchange of which may, in the opinion of the Company's counsel,
be unlawful. The Company also reserves the absolute right to
waive any defect or irregularity in the tender of any Series
1992 Preferred Stock covered by any Letter of Transmittal.
None of the Company, the Exchange Agent or any other person
will be under any duty to give notification of any defects or
irregularities in tenders or incur any liability for failure to
give any such notification. The Company's interpretation of
the terms and conditions of the Exchange Offer (including these
Instructions) will be final and binding on all parties.
9. Substitute Form W-9. Except as described below under
"Important Tax Information," federal income tax laws require
each tendering Holder to provide the Company with a correct
taxpayer identification number ("TIN") on the Substitute Form
W-9 which is provided below, and to indicate whether or not the
Holder is subject to backup withholding by crossing out item
(2) in Part 2 on the Substitute Form W-9 if the holder is
currently subject to backup withholding. Failure to provide
the information on the Form or to cross out item (2) in Part 2
of the Form (if applicable) may subject the tendering Holder to
31% federal income tax withholding on payments made to the
holder. The box in Part 3 of the Form may be checked if the
tendering Holder has not been issued a TIN and has applied for
a TIN or intends to apply for a TIN in the near future. If the
box in Part 3 is checked and the Holder is not provided with a
TIN within sixty (60) days, the Company will withhold 31% on
all such payments thereafter until a TIN is provided to the
Company.
10. Withholding on Foreign Holders in Connection with the
Exchange Offer. United States federal withholding tax
generally will be withheld from the gross proceeds payable to a
holder that is a non-United States person (a "foreign holder")
(including Debentures that such foreign holder would otherwise
be entitled to receive) unless such foreign holder provides the
Exchange Agent with a Foreign Holder Certification, in form and
substance satisfactory to the Company, in which such holder
certifies that such holder's exchange of Series 1992 Preferred
Stock for Debentures pursuant to the Exchange Offer qualifies
as a sale or exchange, rather than as a distribution taxable as
a dividend, for federal income tax purposes (as described in
"Certain Federal Tax Considerations for Non-United States
Persons -- Exchange of Series 1992 Preferred Stock for
Debentures" in the Prospectus), and such holder agrees that it
will provide additional information to the Company if necessary
to demonstrate such qualification and that it will reimburse
the Company if it is determined that federal withholding tax
was due. The withholding rate is ordinarily 30% unless the
foreign holder is eligible for a reduced tax treaty rate with
respect to dividend income, in which case withholding will be
made at the reduced tax treaty rate, or the foreign holder
otherwise establishes to the satisfaction of the withholding
agent that such holder is exempt from tax on such exchange
(e.g., by certifying to the withholding agent on IRS Form 8709
as to such holder's status as a foreign government). For this
purpose, a non-United States person is any person that is not
(i) an individual citizen or resident of the United States,
(ii) a corporation, partnership or other entity created or
organized in or under the laws of the United States or any
political subdivision thereof or (iii) any estate or trust the
income of which is subject to United States federal income
taxation regardless of the source of such income. Copies of
the Foreign Holder Certification are available from the
Exchange Agent. A shareholder's status as a foreign holder and
eligibility for a reduced tax treaty rate of withholding will
be determined by reference to the shareholder's address and to
any outstanding certificates (i.e., Form W-8 or substitute) or
statements concerning eligibility for a reduced rate of
withholding, unless facts and <PAGE>
circumstances indicate that reliance is not warranted. EACH
FOREIGN HOLDER SHOULD CONSULT WITH THE HOLDER'S TAX ADVISOR
REGARDING THE FOREGOING.
A holder that exchanges Series 1992 Preferred Stock for
Debentures on behalf of a beneficial owner that is a non-United
States person will be responsible for determining whether or
not, and what rate of, withholding is required on such exchange
and for obtaining any required forms or certifications from
such beneficial owner.
A foreign holder may be eligible to obtain from the U.S.
Internal Revenue Service a refund of any tax withheld if such
shareholder meets one of the three tests for sale or exchange
treatment described in "Certain Federal Tax Considerations for
Non-United States Persons -- Exchange of Series 1992 Preferred
Stock for Debentures" in the Prospectus or otherwise is able to
establish that no tax (or a reduced amount of tax) was due.
11. Special Exchange and Delivery Instructions. If the
Debentures to be exchanged for Series 1992 Preferred Stock, or
if certificates for shares of Series 1992 Preferred Stock not
tendered or accepted for exchange, are to be issued or recorded
in the name of someone other than the tendering Holder, the
tendering Holder must fill in the information in the box
entitled "Special Exchange Instructions." If the Debentures to
be exchanged for Series 1992 Preferred Stock, or if
certificates for shares of Series 1992 Preferred Stock not
tendered or accepted for exchange, are to be mailed to someone
other than the tendering Holder or to the tendering Holder at
an address other than that appearing below the tendering
Holder's signature, the tendering Holder must fill in the
information in the box entitled "Special Delivery
Instructions."
12. Solicited Tenders. The Company will pay a
solicitation fee of $0.50 per share on any shares of Series
1992 Preferred Stock tendered and accepted for exchange
pursuant to the Exchange Offer covered by this Letter of
Transmittal that designates, in the box captioned "Solicited
Tenders," as having solicited and obtained the tender, the name
of (i) any broker or dealer in securities, including the Dealer
Managers in their capacity as a dealer or broker, which is a
member of any national securities exchange or of the National
Association of Securities Dealers, Inc. (the "NASD"), (ii) any
foreign broker or dealer not eligible for membership in the
NASD which agrees to conform to the NASD's Rules of Fair
Practice in soliciting tenders outside the United States to the
same extent as though it were an NASD member, or (iii) any bank
or trust company (each of which is referred to herein as a
"Soliciting Dealer"). No such fee shall be payable to a
Soliciting Dealer with respect to the tender of shares by a
Holder unless, except in the case of an Agent's Message, the
Letter of Transmittal accompanying such tender designates such
Soliciting Dealer. No such fee shall be payable to a
Soliciting Dealer if such Soliciting Dealer is required for any
reason to transfer the amount of such fee to a tendering Holder
(other than itself). Soliciting Dealers are not entitled to
any such fee for any Series 1992 Preferred Stock tendered for
their own account. No broker, dealer, bank, trust company or
fiduciary shall be deemed to be the agent of the Company, the
Exchange Agent, the Information Agent or the Dealer Managers
for purposes of the Exchange Offer.
13. Definitions. Capitalized terms used in this Letter
of Transmittal and not otherwise defined have the meanings
given in the Prospectus.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE
HEREOF (TOGETHER WITH CERTIFICATES FOR SERIES 1992 PREFERRED
STOCK AND ALL OTHER REQUIRED DOCUMENTS) OR CONFIRMATION OF
BOOK-ENTRY TRANSFER (TOGETHER WITH AN AGENT'S MESSAGE OR THIS
LETTER OF TRANSMITTAL) OR A NOTICE OF GUARANTEED DELIVERY MUST
BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under federal income tax laws, a holder whose tendered
Series 1992 Preferred Stock is accepted for exchange is
required to provide the Company with such holder's correct
Taxpayer Identification Number ("TIN") on Substitute Form W-9
below. If a holder is an individual, the TIN is such holder's
social security number. If the Company is not provided with
the correct TIN, such holder may be subject to a penalty
imposed by the Internal Revenue Service. In addition, payments
that are made to such holder with respect to Debentures
acquired pursuant to the Exchange Offer may be subject to
backup withholding.
If backup withholding applies, the Company is required to
withhold 31% of all payments made to such holder. Backup
withholding is not an additional tax. Rather, the tax
liability of persons subject to backup withholding will be
reduced by the amount of tax withheld. If withholding results
in an overpayment of taxes, a refund may be obtained.
To prevent backup withholding on payments that are made
to a holder with respect to Debentures, such holder is required
to notify the Company of such holder's correct TIN by
completing the Form below, certifying that the TIN provided on
Substitute Form W-9 is correct (or that such holder is awaiting
a TIN) and whether or not (i) such holder has not been notified
by the Internal Revenue Service that such holder is subject to
backup withholding as a result of a failure to report all
interest or dividends or (ii) the Internal Revenue Service has
notified such holder that such holder is no longer subject to
backup withholding.
Certain holders (including, among others, all
corporations and certain foreign individuals) are not subject
to these backup withholding requirements. A corporation must,
however, complete the Substitute Form W-9, including providing
its TIN (unless it is a foreign corporation that does not have
a TIN) and indicating that it is exempt from backup
withholding, in order to establish its exemption from backup
withholding. A foreign corporation or individual, or other
foreign person, must submit a statement (i.e., Form W-8 or
substitute), signed under penalties of perjury, attesting to
such person's status as a non-United States person. Such
statements can be obtained from the Exchange Agent.
<PAGE>
See the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for
additional instructions.
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------
PAYER'S NAME: THE BANK OF NEW YORK
- -----------------------------------------------------------------------------------------------
<S> <C> <C>
Substitute Part 1 - PLEASE PROVIDE ____________________________________
Form W-9 YOUR TIN IN THE BOX AT Social Security Number
(See Instruction 9) RIGHT AND CERTIFY BY OR
Please fill in your SIGNING AND DATING ____________________________________
name and address below BELOW Employer Identification Number
----------------------------------------------------------------
___________________________ Part 2 - Certification - Under Penalties
Name of Perjury, I certify that: Part 3 -
(1) The number shown in this form is
___________________________ my correct Taxpayer Identification
Address (number and street) Number (or I am waiting for a Awaiting TIN / /
number to be issued to be) and
___________________________ (2) I am not subject to backup withholding ------------------
City, State and Zip Code because (a) I am exempt from backup
withholding or (b) I have not been Part 4 -
Department of the Treasury notified by the Internal Revenue
Internal Revenue Service Service ("IRS") that I am subject to
withholding as a result of failure to Exempt / /
Payer's Request for Taxpayer report all interest or dividends or
Identification Number (TIN) (c) the IRS has notified me that I am
no longer subject to backup withholding.
----------------------------------------------------------------
Certification Instructions - You must cross out item (2) in
Part 2 above if you have been notified by the IRS that you are
subject to backup withholding because of underreporting interest
or dividends on your tax return. However, if after being
notified by the IRS that you were subject to backup withholding
you received another notification from the IRS stating that you
are no longer subject to backup withholding, do not cross out
item (2). If you are exempt from backup withholding, check the
box in Part 4 above.
SIGNATURE _____________________________ DATE _____________, 1995
- -----------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT
IN BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO
YOU PURSUANT TO THE EXCHANGE OFFER. PLEASE REVIEW
THE ENCLOSED "GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM
W-9" FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE
BOX IN PART 3 OF THE SUBSTITUTE FORM W-9.
- ---------------------------------------------------------------
CERTIFICATE OF TAXPAYER AWAITING TIN
I certify under penalties of perjury that a taxpayer
identification number has not been issued to me, and either
(a) I have mailed or delivered an application to receive a
taxpayer identification number to the appropriate Internal
Revenue Service Center or Social Security Administration
Office, or (b) I intend to mail or deliver an application in
the near future. I understand that if I do not provide a
taxpayer identification number within 60 days, 31% of all
reportable payments made to me thereafter will be withheld
until I provide a number.
_______________________________________________________________
Signature
_______________________________________________________________
Date
<PAGE>
Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9
Section references are to the Internal Revenue Code.
Purpose of Form. - A person who is required to file an
information return with the Internal Revenue Service (the
"IRS") must obtain your correct Taxpayer Identification Number
("TIN") to report income paid to you, real estate transactions,
mortgage interest you paid, the acquisition or abandonment of
secured property or contributions you made to an Individual
Retirement Account ("IRA"). Use Form W-9 to furnish your
correct TIN to the requester (the person asking you to furnish
your TIN) and, when applicable, (1) to certify that the TIN you
are furnishing is correct (or that you are waiting for a number
to be issued), (2) to certify that you are not subject to
backup withholding and (3) to claim exemption from backup
withholding if you are an exempt payee. Furnishing your
correct TIN and making the appropriate certifications will
prevent certain payments from being subject to backup
withholding.
Note: If a requester gives you a form other than a W-9 to
request your TIN, you must use the requester's form.
How To Obtain a TIN. - If you do not have a TIN, apply for
one immediately. To apply, get Form SS-5, Application for a
Social Security Card (for individuals), from your local office
of the Social Security Administration, or Form SS-4,
Application for Employer Identification Number (for businesses
and all other entities), from your local IRS office.
To complete Form W-9 if you do not have a TIN, write
"Applied for" in the space for the TIN in Part I (or check the
box in Part 3 of Substitute Form W-9), sign and date the form,
and give it to the requester. Generally, you must obtain a TIN
and furnish it to the requester by the time of payment. If the
requester does not receive your TIN by the time of payment,
backup withholding, if applicable, will begin and continue
until you furnish your TIN to the requester.
Note: Writing "Applied for" (or checking the box in Part 3
of the Substitute Form W-9) on the form means that you have
already applied for a TIN or that you intend to apply for one
in the near future.
As soon as you receive your TIN, complete another Form
W-9, include your TIN, sign and date the form, and give it to
the requester.
What Is Backup Withholding? - Persons making certain
payments to you after 1992 are required to withhold and pay to
the IRS 31% of such payments under certain conditions. This is
called "backup withholding." Payments that could be subject to
backup withholding include interest, dividends, broker and
barter exchange transactions, rents, royalties, nonemployee
<PAGE>
compensation and certain payments from fishing boat operators,
but do not include real estate transactions.
If you give the requester your correct TIN, make the
appropriate certifications and report all your taxable interest
and dividends on your tax return, your payments will not be
subject to backup withholding. Payments you receive will be
subject to backup withholding if:
1. You do not furnish your TIN to the requester, or
2. The IRS notifies the requester that you furnished an
incorrect TIN, or
3. You are notified by the IRS that you are subject to
backup withholding because you failed to report all your
interest and dividends on your tax return (for reportable
interest and dividends only), or
4. You do not certify to the requester that you are not
subject to backup withholding under 3 above (for
reportable interest and dividend accounts opened after
1983 only), or
5. You do not certify your TIN. This applies only to
reportable interest, dividend, broker or barter exchange
accounts opened after 1983, or broker accounts considered
inactive in 1983.
Except as explained in 5 above, other reportable payments
are subject to backup withholding only if 1 or 2 above applies.
Certain payees and payments are exempt from backup withholding
and information reporting. See Payees and Payments Exempt From
Backup Withholding, below, and Example Payees and Payments
under Specific Instructions, below, if you are an exempt payee.
Payees and Payments Exempt From Backup Withholding. - The
following is a list of payees exempt from backup withholding
and for which no information reporting is required. For
interest and dividends, all listed payees are exempt except
item (9). For broker transactions, payees listed in (1)
through (13) and a person registered under the Investment
Advisers Act of 1940 who regularly acts as a broker are exempt.
Payments subject to reporting under sections 6041 and 6041A are
generally exempt from backup withholding only if made to payees
described in items (1) through (7), except that a corporation
that provides medical and health care services or bills and
collects payments for such services is not exempt from backup
withholding or information reporting. Only payees described in
items (2) through (6) are exempt from backup withholding for
barter exchange transactions, patronage dividends, and payments
by certain fishing boat operators.
(1) A corporation. (2) An organization exempt from tax
under Section 501(a), or an IRA, or a custodial account under
section 403(b)(7). (3) The United States or any of its
agencies or instrumentalities. (4) A state, the District of
Columbia, a possession of the United States or any of their
<PAGE>
political subdivisions or instrumentalities. (5) A foreign
government or any of its political subdivisions, agencies or
instrumentalities. (6) An international organization or any of
its agencies or instrumentalities. (7) A foreign central bank
of issue. (8) A dealer in securities or commodities required
to register in the United States or a possession of the United
States. (9) A futures commission merchant registered with the
Commodity Futures Trading Commission. (10) A real estate
investment trust. (11) An entity registered at all times
during the tax year under the Investment Company Act of 1940.
(12) A common trust fund operated by a bank under section
584(a). (13) A financial institution. (14) A middleman known
in the investment community as a nominee or listed in the most
recent publication of the American Society of Corporate
Securities, Inc., Nominee List. (15) A trust exempt from tax
under section 664 or described in section 4947.
Payments of dividend and patronage dividends generally not
subject to backup withholding include the following:
-- Payments to nonresident aliens subject to withholding
under section 1441.
-- Payments to partnerships not engaged in a trade or
business in the United States and that have at least
one nonresident partner.
-- Payments of patronage dividends not paid in money.
-- Payments made by certain foreign organizations.
Payments of interest generally not subject to backup
withholding include the following:
-- Payments of interest on obligations issued by
individuals.
Note: You may be subject to backup withholding if this
interest is $600 or more and is paid in the course of the
payer's trade or business and you have not provided your
correct TIN to the payer.
-- Payments of tax-exempt interest (including except-
interest dividends under section 852).
-- Payments described in section 6049(b)(5) to
nonresident aliens.
-- Payments on tax-free covenant bonds under section
1451.
-- Payments made by certain foreign organizations.
-- Mortgage interest paid by you.
Payments that are not subject to information reporting are
also not subject to backup withholding. For details, see
<PAGE>
sections 6041, 6041A(a), 6042, 6044, 6045, 6049, 6050A and
6050N, and their regulations.
Penalties
Failure To Furnish TIN. - If you fail to furnish your
correct TIN to a requester, you will be subject to a penalty of
$50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
Civil Penalty for False Information With Respect to
Withholding. - If you make a false statement with no reasonable
basis that results in no backup withholding, you are subject to
a $500 penalty.
Criminal Penalty for Falsifying Information. - Willfully
falsifying certifications or affirmations may subject you to
criminal penalties including fines and/or imprisonment.
Misuse of TINs. - If the requester discloses or uses TINs
in violation of federal law, the requester may be subject to
civil and criminal penalties.
Specific Instructions
Name. - If you are an individual, you must generally
provide the name shown on your Social Security card. However,
if you have changed your last name, for instance, due to
marriage, without informing the Social Security Administration
of the name change, please enter your first name, the last name
shown on your Social Security card and your new last name.
If you are a sole proprietor, you must furnish your
individual name and either your SSN or EIN. You may also enter
your business name or "doing business as" name on the business
name line. Enter your name(s) as shown on your Social Security
card and/or as it was used to apply for your EIN on Form SS-4.
Signing the Certification
1. Interest, Dividend, Broker and Barter Exchange Accounts
Opened Before 1984 and Broker Accounts Considered Active During
1983. You are required to furnish your correct TIN, but you
are not required to sign the certification.
2. Interest, Dividend, Broker, and Barter Exchange
Accounts Opened After 1983 and Broker Accounts Considered
Inactive During 1983. You must sign the certification or else
backup withholding will apply. If you are subject to backup
withholding and you are merely providing your correct TIN to
the requester, you must cross out item 2 in the certification
before signing the form.
3. Real Estate Transactions. You must sign the
certification. You may cross out item 2 of the certification.
4. Other Payments. You are required to furnish your
correct TIN, but you are not required to sign the certification
<PAGE>
unless you have been notified of an incorrect TIN. Other
payments include payments made in the course of the requester's
trade or business for rents, royalties, goods (other than bills
for merchandise), medical and health care services, payments to
a nonemployee for services (including attorney and accounting
fees) and payments to certain fishing boat crew members.
5. Mortgage Interest Paid by You, Acquisition or
Abandonment of Secured Property or IRA Contributions. You are
required to furnish your correct TIN, but you are not required
to sign the certification.
6. Exempt Payees and Payments. If you are exempt from
backup withholding, you should complete this form to avoid
possible erroneous backup withholding. Enter your correct TIN
in Part I, write 'EXEMPT" in the block in Part II and sign and
date the form. If you are a nonresident alien or foreign
entity not subject to backup withholding, give the requester a
completed Form W-8, Certificate of Foreign Status.
7. TIN "Applied for." Follow the instructions under How
to Obtain a TIN on page 1, and sign and date this form.
Signature. - For a joint account, only the person whose
TIN is shown in Part I should sign.
Privacy Act Notice. - Section 6109 requires you to furnish
your correct TIN to persons who must file information returns
with the IRS to report interest, dividends and certain other
income paid to you, mortgage interest you paid, the acquisition
or abandonment of secured property or contributions you made to
an IRA. The IRS uses the numbers for identification purposes
and to help verify the accuracy of your tax return. You must
provide your TIN whether or not you are required to file a tax
return. Payers must generally withhold 31% of taxable
interest, dividend and certain other payments to a payee who
does not furnish a TIN to a payer. Certain penalties may also
apply.
<TABLE>
What Name and Number To Give the Requester
<CAPTION>
For this type of account: Give name and SSN of:
<S> <C>
1. Individual. . . . . . . . . . . . . . . . . . The individual
2. Two or more individuals (joint account) . . . The actual owner of the
account or, if combined
funds, the first individual
on the account (1)
3. Custodian account of a minor (Uniform Gift
to Minors Act). . . . . . . . . . . . . . . . The minor (2)
4. a. The usual revocable savings trust
(grantor is also trustee) . . . . . . . . The grantor-trustee (1)
b. So-called trust account that is not a legal
or valid trust under state law. . . . . . The actual owner (1)
5. Sole proprietorship . . . . . . . . . . . . . The owner (3)
For this type of account: Give name and EIN of:
6. Sole proprietorship . . . . . . . . . . . . . The owner (3)
7. A valid trust, estate or pension trust. . . . Legal entity (4)
8. Corporate . . . . . . . . . . . . . . . . . . The corporation
9. Association, club, religious, charitable, educational
or other tax-exempt organization. . . . . . . The organization
10. Partnership . . . . . . . . . . . . . . . . . The partnership
11. A broker or registered nominee. . . . . . . . The broker or nominee
12. Account with the Department of Agriculture in
the name of a public entity (such as a state
or local government, school district or prison)
that receives agriculture program payments. . The public entity
_____________
<FN>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's SSN.
(3) Show your individual name. You may also enter your business name. You may use your
SSN or EIN.
(4) List first and circle the name of the legal trust, estate or pension trust. (Do not furnish the
TIN of the personal representative or trustee unless the legal entity itself is not designated
in the account title.)
Note: If no name is circled when there is more than one name, the number will be considered to
be that of the first name listed.
</TABLE>
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Salomon Brothers Inc
7 World Trade Center
New York, New York 10048
PACIFICORP
Tender of All Outstanding
$1.98 No Par Serial Preferred Stock, Series 1992
In Exchange for
___% Quarterly Income Debt Securities (QUIDSSM)
(Junior Subordinated Deferrable Interest Debentures,
Series A, due 2025)
- ---------------------------------------------------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00
P.M., NEW YORK CITY TIME, ON MAY __, 1995, UNLESS THE EXCHANGE
OFFER IS EXTENDED (THE "EXPIRATION DATE").
- ---------------------------------------------------------------
To Brokers, Dealers, Commercial
Banks, Trust Companies and
Other Nominees:
In our capacity as Dealer Managers, we are enclosing the
material listed below relating to the offer by PacifiCorp, an
Oregon corporation (the "Company"), to exchange up to
$125,000,000 aggregate principal amount of its __% Junior
Subordinated Deferrable Interest Debentures, Series A, due 2025
(the "Debentures") for up to all shares of its outstanding
$1.98 No Par Serial Preferred Stock, Series 1992 (the "Series
1992 Preferred Stock"), upon the terms and subject to the
conditions set forth in the Prospectus, dated April __, 1995
(the "Prospectus"), of the Company and in the related Letter of
Transmittal (which together constitute the "Exchange Offer").
Exchanges will be effected on the basis of $25 principal amount
of Debentures (the minimum permitted denomination) for each
share of Series 1992 Preferred Stock (liquidation preference
$25 per share) validly tendered and accepted for exchange in
the Exchange Offer.
The Company has expressly reserved the right to amend or
modify the terms of the Exchange Offer in any manner and to
withdraw or terminate the Exchange Offer, at any time for any
reason, including (without limitation) if fewer than 1,000,000
shares of Series 1992 Preferred Stock are tendered (which
condition may be waived by the Company).
We are asking you to contact your clients for whom you
hold Series 1992 Preferred Stock registered in your name (or in
the name of your nominee) or who hold Series 1992 Preferred <PAGE>
Stock registered in their own names. Please bring the Exchange
Offer to their attention as promptly as possible.
The Company will pay a solicitation fee of $0.50 per share
of Series 1992 Preferred Stock for any Series 1992 Preferred
Stock tendered and accepted for exchange pursuant to the
Exchange Offer covered by a Letter of Transmittal that
designates, as having solicited and obtained such tender, the
name of any of the following persons: (i) any broker or dealer
in securities, including either of the Dealer Managers in its
capacity as a broker or dealer, which is a member of any
national securities exchange or of the National Association of
Securities Dealers, Inc. (the "NASD"), (ii) any foreign broker
or dealer not eligible for membership in the NASD which agrees
to conform to the NASD's Rules of Fair Practice in soliciting
tenders outside the United States to the same extent as though
it were an NASD member or (iii) any bank or trust company (each
of which is referred to herein as a "Soliciting Dealer").
No such fee shall be payable to a Soliciting Dealer if
such Soliciting Dealer is required for any reason to transfer
the amount of such fee to a tendering holder (other than
itself). Soliciting Dealers are not entitled to receive
solicitation fees for any Series 1992 Preferred Stock tendered
for their own account. No broker, dealer, bank, trust company
or fiduciary shall be deemed to be the agent of the Company,
the Exchange Agent, the Dealer Managers or the Information
Agent for purposes of the Exchange Offer.
The Company will also, upon request, reimburse Soliciting
Dealers for reasonable and customary handling and mailing
expenses incurred by them in forwarding materials relating to
the Exchange Offer to their customers. The Company will pay
all stock transfer taxes applicable to its purchase of Series
1992 Preferred Stock pursuant to the Exchange Offer, subject to
Instruction 4 of the Letter of Transmittal.
For your information and for forwarding to your clients,
we are enclosing the following documents:
1. The Prospectus.
2. The Letter of Transmittal for your use and for the
information of your clients.
3. Exchange Offer questions and answers.
4. A letter to shareholders of the Company from the
President and Chief Executive Officer of the Company.
5. The Notice of Guaranteed Delivery to be used to accept
the Exchange Offer if the Series 1992 Preferred Stock and all
other required documents cannot be delivered to the Exchange
Agent by the Expiration Date.
6. A letter which may be sent to your clients for whose
accounts you hold Series 1992 Preferred Stock registered in
your name or in the name of your nominee, with space for
obtaining such clients' instructions with regard to the
Exchange Offer.
7. Guidelines of the Internal Revenue Service for
Certification of Taxpayer Identification Number on Substitute
Form W-9, providing information relating to backup federal
income tax withholding.
<PAGE>
8. A return envelope addressed to The Bank of New York,
the Exchange Agent.
We urge you to contact your clients as promptly as
possible. Please note that the Exchange Offer and any
withdrawal rights expire at 5:00 P.M., New York City time, on
May __, 1995, unless the Exchange Offer is extended.
Neither the Company nor its Board of Directors makes any
recommendation to any shareholder as to whether or not to
tender for exchange all or any Series 1992 Preferred Stock.
Shareholders must make their own decision as to whether to
tender Series 1992 Preferred Stock and, if so, how many shares
of Series 1992 Preferred Stock to tender.
Any questions, requests for assistance or additional
copies of the enclosed materials may be directed to Georgeson &
Company Inc., the Information Agent, at 1-800-223-2064, or to
us, as Dealer Managers, at the respective addresses and
telephone numbers set forth on the back cover of the enclosed
Prospectus.
Very truly yours,
GOLDMAN, SACHS & CO.
SALOMON BROTHERS INC
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS
SHALL CONSTITUTE YOU THE AGENT OF THE COMPANY, THE DEALER
MANAGERS, THE INFORMATION AGENT OR THE EXCHANGE AGENT, OR
AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE
ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE
OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE
STATEMENTS CONTAINED THEREIN.
TENDER OF ALL OUTSTANDING
$1.98 NO PAR SERIAL PREFERRED STOCK, SERIES 1992
In Exchange for
_____% Quarterly Income Debt Securities (QUIDSSM)
(Junior Subordinated Deferrable Interest Debentures,
Series A, due 2025)
of
PACIFICORP
To Our Clients:
PacifiCorp (the "Company") is making an offer to exchange
$25 principal amount of its ____% Junior Subordinated Deferrable
Interest Debentures, Series A, due 2025 (the "Debentures") for
each share of its $1.98 No Par Serial Preferred Stock, Series
1992 (liquidation preference $25 per share) (the "Series 1992
Preferred Stock"), upon the terms and subject to the conditions
set forth in a Prospectus, dated April ___, 1995 (the
"Prospectus"), and a related Letter of Transmittal (the "Letter
of Transmittal," which together with the Prospectus constitute
the "Exchange Offer"). We are enclosing for your review a copy
of the Prospectus and the Letter of Transmittal.
Please note that the Exchange Offer will expire at 5:00 pm.,
New York City time, on May ___, 1995, unless the Exchange Offer
is extended.
The Company expressly reserves the right to (i) amend or
modify the terms of the Exchange Offer in any manner and
(ii) withdraw or terminate the Exchange Offer and not accept for
exchange any Series 1992 Preferred Stock, at any time for any
reason, including (without limitation) if fewer than 1,000,000
shares of Series 1992 Preferred Stock are tendered (which
condition may be waived by the Company).
We are the holder of record of Series 1992 Preferred Stock
held by us for your account. A tender of such Series 1992
Preferred Stock can be made only by us as the record holder and
pursuant to your instructions. The Letter of Transmittal is
furnished to you for your information only and cannot be used by
you to tender Series 1992 Preferred Stock held by us for your
account.
We request instructions on the attached schedule as to
whether or not you wish to tender any or all of the Series 1992
Preferred Stock held by us for your account pursuant to the terms
and conditions of the Exchange Offer.
Very truly yours,
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE
TENDER OF ALL OUTSTANDING
$1.98 NO PAR SERIAL PREFERRED STOCK, SERIES 1992
In Exchange for
_____% Quarterly Income Debt Securities (QUIDSSM)
(Junior Subordinated Deferrable Interest Debentures,
Series A, due 2025)
of
PACIFICORP
The undersigned acknowledges receipt of your letter
enclosing the Prospectus, dated April ___, 1995, of PacifiCorp
and the related Letter of Transmittal relating to the Exchange
Offer. This will instruct you to tender the number of shares of
Series 1992 Preferred Stock indicated below held by you for the
account of the undersigned, pursuant to the terms and subject to
the conditions of the Exchange Offer, and confirm that you may
make the representations contained in the Letter of Transmittal
on behalf of the undersigned.
Series 1992 Preferred Stock to be Tendered
------------------------------------------------------
Aggregate Number of
Shares of Series 1992
Preferred Stock Held by Number of Shares
You for the Account of Series 1992
of the Undersigned Preferred Stock Tendered*
------------------------------------------------------
------------------------------------------------------
- ---------------------------------------------------------------
Signature(s)
- ---------------------------------------------------------------
Please print name
- ---------------------------------------------------------------
Date
* Unless otherwise indicated, it will be assumed that all of
the undersigned's shares of Series 1992 Preferred Stock are
to be tendered.
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF ALL OUTSTANDING
$1.98 NO PAR SERIAL PREFERRED STOCK, SERIES 1992
IN EXCHANGE FOR
_____% QUARTERLY INCOME DEBT SECURITIES (QUIDS SM)
(JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES,
SERIES A, DUE 2025)
of
PACIFICORP
Registered holders of outstanding $1.98 No Par Serial
Preferred Stock, Series 1992 (the "Series 1992 Preferred Stock")
of PacifiCorp (the "Company") who wish to tender Series 1992
Preferred Stock in exchange for the Company's _____% Junior
Subordinated Deferrable Interest Debentures, Series A, due 2025
(the "Debentures"), on a basis of $25 principal amount of
Debentures for each share of Series 1992 Preferred Stock
(liquidation preference $25 per share) accepted for exchange, on
the terms and subject to the conditions set forth in the
Company's Prospectus, dated April ___, 1995 (the "Prospectus"),
and the related Letter of Transmittal (the "Letter of
Transmittal") and, in each case, whose Series 1992 Preferred Stock
is not immediately available or who cannot deliver their Series
1992 Preferred Stock and Letter of Transmittal (and any other
documents required by the Letter of Transmittal) to The Bank of
New York (the "Exchange Agent") prior to the Expiration Date or
comply with book-entry procedures on a timely basis, may use this
Notice of Guaranteed Delivery or one substantially equivalent
hereto. This Notice of Guaranteed Delivery may be delivered by
hand or sent by facsimile transmission (receipt confirmed by
telephone and an original delivered by guaranteed overnight
delivery) or mail to the Exchange Agent. See "The Exchange Offer
- -- Procedures for Tendering -- Guaranteed Delivery " in the
Prospectus.
The Exchange Agent for the Exchange Offer is:
The Bank of New York
By Hand or Overnight Courier: By Mail:
The Bank of New York The Bank of New York
101 Barclay Street PO Box 11248
New York, NY 10286 Church Street Station
Attention: Tender and Exchange New York, NY 10286
Receive and Deliver Window, Attention: Tender and Exchange
Street Level
By Facsimile:
(For Eligible Institutions Only)
(212) 815-6213
Confirm Receipt of Notice of
Guaranteed Delivery by Telephone:
(800) 507-9357
Delivery of this Notice of Guaranteed Delivery to an address
other than as set forth above or transmission of instructions via
a facsimile transmission to a number other than as set forth
above will not constitute a valid delivery.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO
GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL
IS REQUIRED TO BE GUARANTEED BY AN ELIGIBLE INSTITUTION, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED
ON THE LETTER OF TRANSMITTAL FOR GUARANTEE OF SIGNATURES.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders the number of shares of
Series 1992 Preferred Stock indicated below, upon the terms and
subject to the conditions contained in the Prospectus, dated
April ___, 1995, of PacifiCorp (the "Prospectus"), receipt of
which is hereby acknowledged. If the space provided below is
inadequate, the Certificate Number(s) and Number of Shares should
be listed on a separate signed schedule affixed hereto.
DESCRIPTION OF SERIES 1992 PREFERRED STOCK TENDERED
- -----------------------------------------------------------------
SERIES 1992 PREFERRED STOCK
- -----------------------------------------------------------------
Name and address of
registered holder as it Certificate Certificate
appears on the Number(s) Number(s)
Certificate(s) for of Series of Series
Series 1992 Preferred Stock 1992 Preferred 1992 Preferred
(Please Print) Stock Tendered* Stock Tendered*
- -----------------------------------------------------------------
---------------------------------
---------------------------------
---------------------------------
---------------------------------
---------------------------------
- -----------------------------------------------------------------
* Need not be completed by holders of Series 1992 Preferred
Stock tendered by book-entry transfer.
** Unless otherwise indicated, the holder will be deemed to
have tendered the full number of shares of Series 1992
Preferred Stock represented by the tendered certificates.
<PAGE>
THE FOLLOWING GUARANTEE MUST BE COMPLETED
GUARANTEE OF DELIVERY
(Not to be used for signature guarantee)
The undersigned, a firm that is a member of a
registered national securities exchange or a member of the
National Association of Securities Dealers, Inc. or a commercial
bank or trust company having an office, branch, agency or
correspondent in the United States, hereby guarantees to deliver
to the Exchange Agent at one of its addresses set forth above the
certificate(s) representing the Series 1992 Preferred Stock,
together with a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), with any required signature
guarantees, and any other documents required by the Letter of
Transmittal within five New York Stock Exchange trading days
after the date of execution of this Notice of Guaranteed
Delivery.
______________________________ ______________________________
Name of Firm Authorized Signature
______________________________ ______________________________
Address Title
______________________________ Name:_________________________
Zip Code (Please Type or Print)
Area Code and
Telephone Number: __________ Dated: _______________________
NOTE: DO NOT SEND CERTIFICATES FOR SERIES 1992 PREFERRED
STOCK WITH THIS NOTICE OF GUARANTEED DELIVERY.
CERTIFICATES FOR SERIES 1992 PREFERRED STOCK SHOULD
BE SENT WITH YOUR LETTER OF TRANSMITTAL.
[PacifiCorp Letterhead]
April __, 1995
To Holders of $1.98 No Par Serial
Preferred Stock, Series 1992:
PacifiCorp, an Oregon corporation (the "Company"), is
proposing an exchange offer for up to all of its outstanding
$1.98 No Par Serial Preferred Stock, Series 1992 (the "Series
1992 Preferred Stock"). The Company is offering (the "Exchange
Offer") to exchange its ___% Junior Subordinated Deferrable
Interest Debentures, Series A, due 2025 (the "Debentures") for
shares of Series 1992 Preferred Stock on the basis of $25
principal amount of Debentures for each share of Series 1992
Preferred Stock validly tendered and accepted for exchange in
the Exchange Offer. Shares of Series 1992 Preferred Stock not
accepted for exchange will be returned.
The Exchange Offer is explained in detail in the
enclosed Prospectus and Letter of Transmittal. If you want to
tender your shares and participate in the Exchange Offer, the
instructions for tendering are also set forth in detail in the
enclosed materials. I encourage you to read these materials
carefully before making any decision with respect to the
Exchange Offer. Neither the Company nor its Board of Directors
makes any recommendation to shareholders as to whether or not
to tender in the Exchange Offer.
Very truly yours,
Frederick W. Buckman
President and
Chief Executive Officer
