AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 29, 1996
REGISTRATION NO. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PACIFICORP
(Exact name of registrant as specified in its charter)
Oregon 93-0246090
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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
Senior Vice President and Chief Financial Officer
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 LLP Winthrop, Stimson, Putnam & 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: From time to time after this Registration Statement becomes
effective as determined by market conditions and other factors.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. / X /
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
---------------
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Proposed
Proposed maximum
Title of each Amount maximum aggregate Amount of
class of securities to be offering price offering registration
to be registered registered(1)(2) per unit(1) price(1)(2) fee(3)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock; No Par Serial Preferred
Stock; First Mortgage Bonds; and
Unsecured Debt Securities --- --- $853,491,250 $294,308(4)
- --------------------------------------------------------------------------------------------------------------------
<FN>
(1) The amount to be registered, the proposed maximum offering price per
unit and the proposed maximum aggregate offering price for each class
of securities being registered have been omitted in accordance with
General Instruction II.D of Form S-3.
(2) In no event will the aggregate initial offering price (excluding
accrued interest) of the securities issued under this Registration
Statement exceed $853,491,250.
(3) The amount of the registration fee has been calculated in accordance
with Rule 457(o) under the Securities Act of 1933.
(4) An aggregate of $146,508,750 of Common Stock and First Mortgage Bonds
is being carried forward from registration statement No. 33-51163, as
to which securities a registration fee of $50,520 was previously paid
with such registration statement.
</FN>
</TABLE>
------------------------------
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
filed as part of this Registration Statement will be used as a combined
prospectus in connection with this Registration Statement and registration
statement No. 33-51163.
------------------------------
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>
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.
Subject to Completion, Dated July 29, 1996
$1,000,000,000
PACIFICORP
COMMON STOCK
NO PAR SERIAL PREFERRED STOCK
FIRST MORTGAGE BONDS
UNSECURED DEBT SECURITIES
PacifiCorp, an Oregon corporation (the "Company"), may from time to
time offer (i) shares of its Common Stock ("Additional Common Stock"), (ii)
shares of its No Par Serial Preferred Stock ("Additional Preferred Stock"),
(iii) First Mortgage Bonds ("Additional Bonds") and (iv) other debt
securities, including unsecured debt securities that are subordinated to
other debt of the Company ("Unsecured Debt Securities"), all at prices and
on terms to be determined at the time of sale. Additional Common Stock,
Additional Preferred Stock, Additional Bonds and Unsecured Debt Securities
(collectively, the "Securities") may be issued in one or more issuances or
series and the aggregate initial offering price thereof will not exceed
$1,000,000,000, of which no more than an aggregate of $853,491,250 may
consist of Additional Preferred Stock and Unsecured Debt Securities.
This Prospectus will be supplemented by a prospectus supplement or
supplements (each, a "Prospectus Supplement" that will set forth: (i) in
the case of any Additional Common Stock, the number of shares of such
Common Stock, their purchase price, the initial public offering price or
prices and other specific terms of such Common Stock in respect of which
this Prospectus is being delivered; (ii) in the case of any Additional
Preferred Stock, the number of shares of such Preferred Stock, their
purchase price, the initial public offering price or prices, dividend
rights and restrictions, voting rights and redemption or conversion
provisions, if any, and other specific terms of such Preferred Stock in
respect of which this Prospectus is being delivered; (iii) in the case of
any Additional Bonds, the form in which such Bonds are to be issued, their
aggregate principal amount, rate or rates and times of payment of interest,
maturity or maturities, the initial public offering price or prices,
redemption or repurchase provisions, if any, and other specific terms of
such Bonds in respect of which this Prospectus is being delivered; and (iv)
in the case of any Unsecured Debt Securities, their aggregate principal
amount, rate of interest, maturity, the initial public offering price or
prices, redemption provisions, if any, and other specific terms of such
Unsecured Debt Securities in respect of which this Prospectus is being
delivered. See "Description of Capital Stock," "Description of Additional
Bonds" and "Description of Unsecured Debt Securities" herein.
<PAGE>
The Common Stock of the Company is listed on the New York Stock
Exchange (the "NYSE") and the Pacific Stock Exchange (the "PSE") (Symbol:
PPW). The Additional Common Stock will be listed, subject to notice of
issuance, on those exchanges. The $1.98 No Par Serial Preferred Stock,
Series 1992 (the "Series 1992 Preferred Stock") of the Company is listed on
the NYSE (Symbol: PPW E). No other class or series of Preferred Stock of
the Company is listed on any exchange, although the Preferred Securities,
Series A of PacifiCorp Capital I, a Delaware business trust, all of the
common securities of which are owned by the Company, are listed on the NYSE
(Symbol: PPW PrA). The Junior Subordinated Deferrable Interest Debentures,
Series A and Series B of the Company (the "Series A Debentures" and the
"Series B Debentures," respectively) are also listed on the NYSE (Symbols:
PCQ and PCX, respectively).
The Securities may be sold directly by the Company, through agents
designated from time to time or through underwriters or dealers. See "Plan
of Distribution." If any agents of the Company or underwriters are involved
in the sale of any Securities in respect of which this Prospectus is being
delivered, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in a Prospectus Supplement. The
net proceeds to the Company from such sale also will be set forth in a
Prospectus Supplement.
-----------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------------------------------------
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement relating to the Securities
offered.
THE DATE OF THIS PROSPECTUS IS JULY ___, 1996
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE
CLASSES OR SERIES OF SECURITIES OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE
EFFECTED ON THE APPLICABLE EXCHANGES, IN THE OVER-THE-COUNTER MARKET OR
OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
-----------------------------------------
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 the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 10549, 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, Citicorp Center, 500 West
Madison Street, Suite 1400, 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, at prescribed
rates. The Commission maintains a Website that contains reports, proxy and
information statements and other information regarding reporting companies
under the Exchange Act, including the Company at http ://www.sec.gov. The
Common Stock of the Company is listed on the NYSE and the PSE. The Series
1992 Preferred Stock, the Series A Debentures and the Series B Debentures
are also listed on the NYSE. 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-3 (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 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 are qualified by reference
to the copy of such document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission. Reference is made to the
Registration Statement, including the exhibits thereto, for further
information with respect to the Company and the Securities offered hereby.
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<PAGE>
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) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995, as amended by Form 10-K/A dated June 24, 1996;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996; and
(3) The Company's Current Reports on Form 8-K dated January 16, 1996
and February 12, 1996.
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 termination of this offering 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"; provided,
however, that all documents subsequently filed by the Company pursuant to
Section 13 or 14 of the Exchange Act in each year during which the offering
made by this Prospectus is in effect prior to the filing with the
Commission of the Company's Annual Report on Form 10-K covering such year
shall not be Incorporated Documents or be incorporated by reference in this
Prospectus or be a part hereof from and after such filing of such Annual
Report on Form 10-K).
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 COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH
PERSON, INCLUDING ANY BENEFICIAL OWNER, TO WHOM A COPY OF THIS PROSPECTUS
IS 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 PACIFICORP, 700 NE MULTNOMAH, SUITE
1600, PORTLAND, OREGON 97232, ATTENTION: RICHARD T. O'BRIEN, SENIOR VICE
PRESIDENT AND CHIEF FINANCIAL OFFICER, TELEPHONE NUMBER (503) 731-2000. 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.
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<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR IN ANY PROSPECTUS
SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION
SHOULD NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS AND
ANY PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY OR
THEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER IN SUCH JURISDICTION.
NEITHER THE DELIVERY OF THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT
NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY OR ITS SUBSIDIARIES SINCE THE DATE OF THIS PROSPECTUS OR THE DATE
OF THE LATEST PROSPECTUS SUPPLEMENT, AS THE CASE MAY BE.
THE COMPANY
The Company is an electric utility headquartered in Portland, Oregon
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 100% of each of Powercor Australia Limited
("Powercor"), an Australian electric distribution company, and Pacific
Telecom, Inc. ("Pacific Telecom"), a leading provider of local telephone
exchange service to rural and suburban markets.
The Company furnishes electric service to approximately 1,300,000
customers in portions of seven western states: California, Idaho, Montana,
Oregon, Utah, Washington and Wyoming. Powercor serves approximately 540,000
customers in suburban Melbourne and the western and central regions of the
State of Victoria in southeast Australia. 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 cellular mobile telephone services in six
states and is engaged in sales of capacity in and operation of a submarine
fiber optic cable between the United States and Japan. PacifiCorp Holdings,
Inc. also has interests in the independent power and cogeneration business
through its wholly-owned subsidiary, Pacific Generation Company, and
continues to liquidate portions of the loan, leasing and real estate
investment portfolio of its wholly-owned subsidiary, PacifiCorp Financial
Services, Inc. ("PFS"). PFS expects to retain only its tax advantaged
investments in leveraged lease assets (primarily aircraft) and affordable
housing, and is limiting its pursuit of tax-advantaged investment
opportunities to affordable housing.
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.
4
<PAGE>
USE OF PROCEEDS
Unless otherwise indicated in a Prospectus Supplement, the net
proceeds to be received by the Company from the issuance and sale of the
Securities will initially become part of the general funds of the Company
and will be used to repay all or a portion of the Company's short-term
borrowings outstanding at the time of issuance of the Securities or may be
applied to utility asset purchases, new construction or other corporate
purposes, including the refunding of long-term debt. Reference is made to
the Incorporated Documents with respect to the Company's capital
requirements and its general financing plans.
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 Preferred Stock of the stated value of $100 per
share ("Serial Preferred Stock") and 16,000,000 shares of No Par Serial
Preferred Stock ("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 Company's Second Restated Articles
of Incorporation, as amended (the "Articles"), a copy of which is an
exhibit to the Registration Statement.
GENERAL. The Company's Articles provide that Serial Preferred Stock
and 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.
The specific terms of the series of Additional Preferred Stock to
which this Prospectus relates, including the dividend rate (or, if the rate
is not fixed, the method of determining the dividend rate) and
restrictions, the liquidation preference per share, the voting rights for
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<PAGE>
shares of such series, redemption or conversion provisions, if any, and
other specific terms of such series, will be set forth in a Prospectus
Supplement.
DIVIDENDS. Each class of Preferred Stock is entitled, pari passu with
each other class 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 each class of Preferred Stock (and
to the rights of any other classes of preferred stock hereafter
authorized), the Common Stock alone is entitled to all dividends other than
those payable in respect of each class of Preferred Stock.
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 and to "Description of Additional Bonds--Dividend Restrictions"
herein.
LIQUIDATION RIGHTS. Upon involuntary liquidation of the Company, each
class of Preferred Stock is entitled, pari 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 of the Company dividends
to the date of distribution.
Upon voluntary liquidation of the Company, 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 class and in preference to the
Common Stock.
Subject to the rights of each class of Preferred Stock (and to the
rights of any other class of preferred 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 each class
of Preferred Stock.
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 any class of Preferred Stock are in default in an
amount equal to four full
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quarterly payments or more per share, the holders of all classes of
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, 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 Preferred Stock.
None of the Company's outstanding shares of capital stock has
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.
None of the Company's outstanding shares of capital stock has any
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 any Voting Stock acquired by
it;
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(c) At least 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 at least two-thirds of the
Continuing Directors.
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
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 or revision of this
provision requires the approval of at least 80% of the votes entitled to be
cast at an election of directors.
DESCRIPTION OF ADDITIONAL BONDS
GENERAL. Additional Bonds may be issued from time to time under the
Company's Mortgage and Deed of Trust, dated as of January 9, 1989, as
amended and supplemented (the "Mortgage"), with The Chase Manhattan Bank
(formerly known as Chemical Bank), as successor trustee (the "Mortgage
Trustee"). The following summary is subject to the provisions of and is
qualified by reference to the Mortgage, a copy of which is an exhibit to
the Registration Statement. Whenever particular provisions or defined terms
in the Mortgage are referred to herein, such provisions or defined terms
are incorporated by reference herein. Section and Article references used
herein are references to provisions of the Mortgage unless otherwise noted.
The Company assumed the Mortgages and Deeds of Trust, as
supplemented, of Pacific Power & Light Company (the "Pacific Mortgage") and
Utah Power & Light Company (the "Utah Mortgage") (each, a "Class "A"
Mortgage") as the surviving corporation in its 1989 merger with PacifiCorp,
a Maine corporation, and Utah Power & Light Company, a Utah corporation.
The first mortgage bonds issued under these Class "A" Mortgages were
secured by a first mortgage lien on certain properties owned by the
particular company prior to the merger and on improvements, extensions and
additions to, and renewals and replacements of, such properties. The
Mortgage was a second mortgage lien on these properties. The Company is
currently in the process of discharging the Pacific and Utah Mortgages,
which discharge will be completed prior to the issuance of any Additional
Bonds.
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The Mortgage provides that in the event of the merger or
consolidation of another electric utility company with or into the Company
or the conveyance or transfer to the Company by another such company of all
or substantially all of such company's property that is of the same
character as Property Additions under the Mortgage, an existing mortgage
constituting a first lien on operating properties of such other company may
be designated by the Company as an additional Class "A" Mortgage. (Section
11.06) Bonds thereafter issued pursuant to such additional mortgage would
be Class "A" Bonds and could provide the basis for the issuance of Bonds
under the Mortgage.
The Company expects to issue Additional Bonds in the form of fully
registered bonds and, except as may be set forth in any Prospectus
Supplement relating to such Additional Bonds, in denominations of $1,000
and any multiple thereof. They may be transferred without charge, other
than for applicable taxes or other governmental charges, at the offices of
the Mortgage Trustee, New York, New York. Any Additional Bonds issued will
be equally and ratably secured with all other bonds issued under the
Mortgage.
MATURITY AND INTEREST PAYMENTS. Reference is made to the Prospectus
Supplement relating to any Additional Bonds for the date or dates on which
such Bonds will mature; the rate or rates per annum at which such Bonds
will bear interest; and the times at which such interest will be payable.
These terms and conditions, as well as the terms and conditions relating to
redemption and purchase referred to under "Redemption or Purchase of
Additional Bonds" below, will be as established in or pursuant to
resolutions of the Board of Directors of the Company at the time of
issuance of the Additional Bonds.
REDEMPTION OR PURCHASE OF ADDITIONAL BONDS. The Additional Bonds may
be redeemable, in whole or in part, on not less than 30 days' notice either
at the option of the Company or as required by the Mortgage. The Additional
Bonds may be subject to repurchase at the option of the holder.
Reference is made to the Prospectus Supplement relating to any
Additional Bonds for the redemption or repurchase terms and other specific
terms of such Bonds.
If, at the time notice of redemption is given, the redemption moneys
are not held by the Mortgage Trustee, the redemption may be made subject to
their receipt on or before the date fixed for redemption and such notice
shall be of no effect unless such moneys are so received.
While the Mortgage, as described below, contains provisions for the
maintenance of the Mortgaged and Pledged Property, the Mortgage does not
permit redemption of Bonds pursuant to these provisions. There is no
sinking or analogous fund in the Mortgage.
Cash deposited under any provisions of the Mortgage may be applied
(with certain exceptions) to the redemption or repurchase of Bonds of any
series. (Articles XII and XIII)
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SECURITY AND PRIORITY. The Bonds issued under the Mortgage will be
secured by a first mortgage lien on certain utility property owned from
time to time by the Company and/or Class "A" Bonds held by the Mortgage
Trustee. The Lien of the Mortgage is subject to Excepted Encumbrances,
including tax and construction liens, purchase money liens and certain
other exceptions.
There are excepted from the Lien of the Mortgage all cash and
securities (except those specifically deposited); equipment, materials or
supplies held for sale or other disposition; any fuel and similar
consumable materials and supplies; automobiles, other vehicles, aircraft
and vessels; timber, minerals, mineral rights and royalties; receivables,
contracts, leases and operating agreements; electric energy, gas, water,
steam, ice and other products for sale, distribution or other use; natural
gas wells; gas transportation lines or other property used in the sale of
natural gas to customers or to a natural gas distribution or pipeline
company, up to the point of connection with any distribution system; the
Company's interest in the Wyodak Facility; and all properties that have
been released from the Pacific Mortgage or the Utah Mortgage and that
PacifiCorp, a Maine corporation, or Utah Power & Light Company, a Utah
corporation, contracted to dispose of, but title to which had not passed at
the date of the Mortgage. The Company has reserved the right, without any
consent or other action by holders of Bonds of the Eighth Series or any
subsequently created series of Bonds (including the Additional Bonds), to
amend the Mortgage in order to except from the Lien of the Mortgage
allowances allocated to steam-electric generating plants owned by the
Company, or in which the Company has interests, pursuant to Title IV of the
Clean Air Act Amendments of 1990, as now in effect or as hereafter
supplemented or amended.
The Mortgage contains provisions subjecting after-acquired property
to the Lien thereof. These provisions may be limited, at the option of the
Company, in the case of consolidation or merger (whether or not the Company
is the surviving corporation), conveyance or transfer of all or
substantially all of the utility property of another electric utility
company to the Company or sale of substantially all of the Company's
assets. In addition, after-acquired property may be subject to a Class "A"
Mortgage, purchase money mortgages and other liens or defects in title.
(Section 18.03)
The Mortgage provides that the Mortgage Trustee shall have a lien
upon the mortgaged property, prior to the holders of Bonds, for the payment
of its reasonable compensation and expenses and for indemnity against
certain liabilities. (Section 19.09)
ISSUANCE OF ADDITIONAL BONDS. The maximum principal amount of Bonds
which may be issued under the Mortgage is not limited. Bonds of any series
may be issued from time to time on the basis of: (1) Class "A" Bonds (which
need not bear interest) delivered to the Mortgage Trustee; (2) 70% of
qualified Property Additions after adjustments to offset retirements; (3)
retirement of Bonds or certain prior lien bonds; and/or (4) deposits of
cash. With certain exceptions in the case of (1) and (3) above, the
issuance of Bonds is subject to Adjusted Net Earnings of the Company for 12
consecutive months out of the preceding 15 months, before income taxes,
being at least twice the Annual Interest Requirements on all
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Bonds at the time outstanding, including the issue of Additional Bonds, all
outstanding Class "A" Bonds held other than by the Mortgage Trustee or by
the Company, and all other indebtedness secured by a lien prior to the Lien
of the Mortgage. In general, interest on variable interest bonds, if any,
is calculated using the rate then in effect. (Articles IV through VII)
Property Additions generally include electric, gas, steam and/or hot
water utility property but not fuel, securities, automobiles, other
vehicles or aircraft, or property used principally for the production or
gathering of natural gas. (Section 1.04)
The issuance of Bonds on the basis of Property Additions subject to
prior liens is restricted. Bonds may, however, be issued against the
deposit of Class "A" Bonds. (Sections 1.04 to 1.07 and 4.01 to 7.01)
RELEASE AND SUBSTITUTION OF PROPERTY. Property subject to the Lien of
the Mortgage may be released upon the basis of: (1) the release of such
property from the Lien of a Class "A" Mortgage; (2) the deposit of cash or,
to a limited extent, purchase money mortgages; (3) Property Additions,
after making adjustments for certain prior lien bonds outstanding against
Property Additions; and/or (4) waiver of the right to issue Bonds. Cash may
be withdrawn upon the bases stated in (1), (3) and (4) above. Property that
does not constitute Funded Property may be released without funding other
property. Similar provisions are in effect as to cash proceeds of such
property. The Mortgage contains special provisions with respect to certain
prior lien bonds deposited and disposition of moneys received on deposited
prior lien bonds. (Sections 1.05, 7.02, 7.03, 9.05, 10.01 to 10.04 and
13.03 to 13.09)
CERTAIN COVENANTS. The Mortgage contains a number of covenants by the
Company for the benefit of bondholders, including provisions requiring the
Company to maintain the Mortgaged and Pledged Property as an operating
system or systems capable of engaging in all or any of the generating,
transmission, distribution or other utility businesses described in the
Mortgage. (Article IX; Section 9.06)
DIVIDEND RESTRICTIONS. The Mortgage provides that the Company may not
declare or pay dividends (other than dividends payable solely in shares of
Common Stock) on any shares of Common Stock if, after giving effect to such
declaration or payment, the Company would not be able to pay its debts as
they become due in the usual course of business. (Section 9.07) 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 for information relating to other restrictions.
FOREIGN CURRENCY DENOMINATED BONDS. The Mortgage authorizes the
issuance of Bonds denominated in foreign currencies, provided that the
Company deposits with the Mortgage Trustee a currency exchange agreement
with an entity having, at the time of such deposit, a financial rating at
least as high as that of the Company that, in the opinion of an independent
expert, gives the Company at least as much protection against currency
exchange
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fluctuation as is usually obtained by similarly situated borrowers. The
Company believes that such a currency exchange agreement will provide
effective protection against currency exchange fluctuations. However, if
the other party to the exchange agreement defaults and the foreign currency
is valued higher at the date of maturity than at the date of issuance of
the relevant Bonds, holders of such Bonds would have a claim on the assets
of the Company which is greater than that to which holders of
dollar-denominated Bonds issued at the same time would be entitled.
THE MORTGAGE TRUSTEE. The Chase Manhattan Bank acts as lender and
agent under loan agreements with the Company and affiliates of the Company,
and serves as trustee under indentures and other agreements involving the
Company and its affiliates.
MODIFICATION. The rights of bondholders may be modified with the
consent of holders of 60% of the Bonds, or, if less than all series of
Bonds are adversely affected, the consent of the holders of 60% of the
series of Bonds adversely affected. In general, no modification of the
terms of payment of principal, premium, if any, or interest and no
modification affecting the Lien or reducing the percentage required for
modification is effective against any bondholder without the consent of
such holder. (Article XXI)
Unless there is a Default under the Mortgage, the Mortgage Trustee
generally is required to vote Class "A" Bonds held by it with respect to
any amendment of the applicable Class "A" Mortgage proportionately with the
vote of the holders of all Class "A" Bonds then actually voting. (Section
11.03)
DEFAULTS AND NOTICE THEREOF. Defaults are defined in the Mortgage as:
default in payment of principal; default for 60 days in payment of interest
or an installment of any fund required to be applied to the purchase or
redemption of any Bonds; default in payment of principal or interest with
respect to certain prior lien bonds; certain events in bankruptcy,
insolvency or reorganization; default in other covenants for 90 days after
notice; and the existence of any default under a Class "A" Mortgage which
permits the declaration of the principal of all of the bonds secured by
such Class "A" Mortgage and the interest accrued thereupon due and payable.
(Section 15.01) An effective default under any Class "A" Mortgage or under
the Mortgage will result in an effective default under all such mortgages.
The Mortgage Trustee may withhold notice of default (except in payment of
principal, interest or funds for retirement of Bonds) if it determines that
it is not detrimental to the interests of the bondholders. (Section 15.02)
The Mortgage Trustee or the holders of 25% of the Bonds may declare
the principal and interest due and payable on Default, but a majority may
annul such declaration if such Default has been cured. (Section 15.03) No
holder of Bonds may enforce the Lien of the Mortgage without giving the
Mortgage Trustee written notice of a Default and unless the holders of 25%
of the Bonds have requested the Mortgage Trustee to act and offered it
reasonable opportunity to act and indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred thereby and the Mortgage
Trustee shall have failed to act. (Section
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15.16) The holders of a majority of the Bonds may direct the time, method
and place of conducting any proceedings for any remedy available to the
Mortgage Trustee or exercising any trust or power conferred on the Mortgage
Trustee. (Section 15.07) The Mortgage Trustee is not required to risk its
funds or incur personal liability if there is reasonable ground for
believing that repayment is not reasonably assured. (Section 19.08)
DESCRIPTION OF UNSECURED DEBT SECURITIES
GENERAL
The Unsecured Debt Securities may be issued from time to time in one
or more series under an indenture or indentures (each, an "Indenture"),
between the Company and the trustees named below, or other bank or trust
company to be named as trustee (each, an "Indenture Trustee"). The
Unsecured Debt Securities will be unsecured obligations of the Company. If
so provided in the Prospectus Supplement, the Unsecured Debt Securities
will be subordinated obligations of the Company ("Subordinated Debt
Securities"). Except as may otherwise be described in the Prospectus
Supplement, Subordinated Debt Securities will be issued under the
Indenture, dated as of May 1, 1995, as supplemented (the "Subordinated
Indenture"), between the Company and The Bank of New York, as trustee.
Except as may otherwise be described in the Prospectus Supplement,
Unsecured Debt Securities other than Subordinated Debt Securities will be
issued under an Indenture, dated as of August 1, 1996 (the "Unsecured
Indenture"), between the Company and The Chase Manhattan Bank, as Trustee.
Except as otherwise specified herein, the term "Indenture" includes the
Subordinated Indenture and the Unsecured Indenture.
The following summary is subject to the provisions of and is
qualified by reference to the Indenture, which is filed as an exhibit to or
incorporated by reference in 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. Section and Article references used herein are references to
provisions of the Indenture unless otherwise noted.
The Indenture provides that Unsecured Debt Securities 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. (Section 2.01) The Indenture does not limit the aggregate
principal amount of Unsecured Debt Securities which may be issued
thereunder. The Company's 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 March 31, 1996, approximately $874
million of unsecured debt was outstanding and approximately $1.3 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 would afford holders of Unsecured
Debt Securities protection in the event of a highly leveraged or similar
transaction involving the Company or in the event of a change of control.
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Reference is made to the Prospectus Supplement which will accompany
this Prospectus for the following terms of the series of Unsecured Debt
Securities being offered thereby: (i) the specific title of such Unsecured
Debt Securities; (ii) any limit on the aggregate principal amount of such
Unsecured Debt Securities; (iii) the date or dates on which the principal
of such Unsecured Debt Securities is payable; (iv) the rate or rates at
which such Unsecured Debt Securities will bear interest or the manner of
calculation of such rate or rates; (v) 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 dates for the determination of holders to whom
interest is payable on any such interest payment dates; (vi) the period or
periods within which, the price or prices at which and the terms and
conditions upon which such Unsecured Debt Securities may be redeemed, in
whole or in part, at the option of the Company; (vii) the obligation, if
any, of the Company to redeem or purchase such Unsecured Debt Securities
pursuant to any sinking fund or analogous provisions or at the option of
the holder thereof and the period or periods, the price or prices at which
and the terms and conditions upon which such Unsecured Debt Securities
shall be redeemed or purchased, in whole or part, pursuant to such
obligation; (viii) the form of such Unsecured Debt Securities; (ix) if
other than denominations of $1,000 (except with respect to Subordinated
Debt Securities issued pursuant to the Subordinated Indenture, in which
case other than denominations of $25) or, in either case, any integral
multiple thereof, the denominations in which such Unsecured Debt Securities
shall be issuable; (x) whether such Unsecured Debt Securities are issuable
as a global security, and in such case, the identity of the depository; and
(xi) any and all other terms with respect to such series. (Section 2.01.)
For Subordinated Debt Securities issued pursuant to the Subordinated
Indenture, the applicable Prospectus Supplement will also describe (a) the
right, if any, to extend the interest payment periods and the duration of
such extension and (b) the subordination terms of the Subordinated Debt
Securities to the extent such subordination terms vary from those described
under "--Subordination" below.
SUBORDINATION
The Subordinated Indenture provides that Subordinated Debt Securities
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 Subordinated Indenture. No payment of principal of (including
redemption and sinking fund payments), or premium, if any, or interest on,
the Subordinated Debt Securities 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 Subordinated
Debt Securities are entitled to receive or retain any payment. The rights
of the holders of the Subordinated Debt Securities will be subrogated to
the rights of the holders of Senior Indebtedness to receive
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payments or distributions applicable to Senior Indebtedness until all
amounts owing on the Subordinated Debt Securities (including the
Subordinated Debt Securities to be offered hereby) are paid in full.
(Sections 14.01 to 14.04 of the Subordinated Indenture)
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
Subordinated Indenture or thereafter incurred, created or assumed:
(a) all indebtedness of the Company evidenced by notes (including
indebtedness owed to banks), 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 Subordinated Debt Securities. Such Senior
Indebtedness shall continue to be Senior Indebtedness and entitled to the
benefits of the subordination provisions contained in the Subordinated
Indenture irrespective of any amendment, modification or waiver of any term
of such Senior Indebtedness. (Section 1.01 of the Subordinated Indenture)
The Subordinated Indenture does not limit the aggregate amount of
Senior Indebtedness which may be issued. As of March 31, 1996, Senior
Indebtedness of the Company aggregated approximately $3.7 billion.
As the Subordinated Debt Securities will be issued by the Company,
the Subordinated Debt Securities effectively will be subordinate to all
obligations of the Company's subsidiaries, and the rights of the Company's
creditors, including holders of Bonds issued under the Mortgage,
Subordinated Debt Securities and any other Unsecured Debt Securities issued
by the Company, 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.
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CERTAIN COVENANTS OF THE COMPANY
If, with respect to Subordinated Debt Securities issued pursuant to
the Subordinated Indenture, 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 described in clause (a) in the last sentence under "
General" above, the Company will not, until all defaulted interest on the
Subordinated Debt Securities and all interest accrued on the Subordinated
Debt Securities during any such extended interest payment period and all
principal and premium, if any, then due and payable on the Subordinated
Debt Securities 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 Common Stock, 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 that
are subject to mandatory redemption or sinking fund requirements, provided
that the aggregate stated value of all such series of Preferred Stock
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 of the Subordinated Indenture) As of March
31, 1996, the aggregate stated value of such series of Preferred Stock
outstanding was approximately $219 million, which represented approximately
three percent of the aggregate of clauses (1) and (2) above at such date.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Each series of Unsecured Debt Securities will be issued in registered
form and in certificated form or will be represented by one or more global
securities. If not represented by one or more global securities, Unsecured
Debt Securities may be presented for registration of transfer (with the
form of transfer endorsed thereon duly executed) or exchange, at the office
of the Registrar or at the office of any transfer agent designated by the
Company for such purpose with respect to any series of Unsecured Debt
Securities and referred to in an applicable Prospectus Supplement, without
service charge and upon payment of any taxes and other governmental charges
as described in the Indenture. Such transfer or exchange will be effected
upon the registrar or such transfer agent, as the case may be, being
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satisfied with the documents of title and identity of the person making the
request. (Section 2.05) If a Prospectus Supplement refers to any transfer
agent (in addition to the registrar) initially designated by the Company
with respect to any series of Unsecured Debt Securities, the Company may at
any time rescind the designation of any such transfer agent or approve a
change in the location through which any such transfer agent acts, except
that the Company will be required to maintain a transfer agent in each
place of payment for such series. (Section 4.02) The Company may at any
time designate additional transfer agents with respect to any series of
Unsecured Debt Securities. The Unsecured Debt Securities may be transferred
or exchanged without service charge, other than any tax or governmental
charge imposed in connection therewith. (Section 2.05)
In the event of any redemption in part, the Company shall not be
required to (i) issue, register the transfer of or exchange any Unsecured
Debt Security during a period beginning at the opening of business 15 days
before any selection for redemption of Unsecured Debt Securities of like
tenor and of the series of which such Unsecured Debt Security is a part,
and ending at the close of business on the earliest date in which the
relevant notice of redemption is deemed to have been given to all holders
of Unsecured Debt Securities of like tenor and of such series to be
redeemed and (ii) register the transfer of or exchange any Unsecured Debt
Securities so selected for redemption, in whole or in part, except the
unredeemed portion of any Unsecured Debt Security being redeemed in part.
(Section 2.05)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the Prospectus Supplement, payment of
principal of and premium (if any) on any Unsecured Debt Security will be
made only against surrender to the Paying Agent of such Unsecured Debt
Security. Unless otherwise indicated in the Prospectus Supplement,
principal of and any premium and interest, if any, on Unsecured Debt
Securities will be payable, subject to any applicable laws and regulations,
at the office of such Paying Agent or Paying Agents as the Company may
designate from time to time, except that at the option of the Company
payments on the Unsecured Debt Securities may be made (i) by checks mailed
by the Indenture Trustee to the holders entitled thereto at their
registered addresses as specified in the Register for such Unsecured Debt
Securities or (ii) to a holder of $1,000,000 or more in aggregate principal
amount of such Unsecured Debt Securities who has delivered a written
request to the Indenture Trustee at least 14 days prior to the relevant
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 Unsecured Debt Security will
be made only upon surrender of such Unsecured Debt Security to the
Indenture Trustee. Unless otherwise indicated in the Prospectus Supplement,
payment of interest on a Unsecured Debt Security on any Interest Payment
Date will be made to the person in whose name such Unsecured Debt Security
(or Predecessor Security) is registered at the close of business on the
Regular Record Date for such interest payment. (Sections 2.03 and 4.03)
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The Company will act as Paying Agent with respect to the Unsecured
Debt Securities. 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 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 Unsecured Debt Securities. (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 Unsecured Debt
Security 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 Unsecured Debt
Security will thereafter look only to the Company for payment thereof.
(Section 11.06)
GLOBAL DEBENTURES
If any Unsecured Debt Securities of a series are represented by one
or more global securities, the Prospectus Supplement will describe the
circumstances, if any, under which beneficial owners of interests in any
such global Unsecured Debt Security may exchange such interests for
Unsecured Debt Securities of such series and of like tenor and principal
amount in any authorized form and denomination. Principal of and premium,
if any, and interest on a global Unsecured Debt Security will be payable in
the manner described in the Prospectus Supplement. (Section 2.11)
The specific terms of the depository arrangement with respect to any
portion of a series of Unsecured Debt Securities to be represented by a
global Unsecured Debt Security will be described in the Prospectus
Supplement.
AGREED TAX TREATMENT
The Subordinated Indenture provides that each holder of a
Subordinated Debt Securities, each person that acquires a beneficial
ownership interest in a Subordinated Debt Securities and the Company agree
that for United States federal, state and local tax purposes it is intended
that such Subordinated Debt Security constitute indebtedness. (Section
13.12 of the Subordinated Indenture)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the
Indenture Trustee, with the consent of the holders of not less than a
majority in principal amount of the Unsecured Debt Securities 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 Unsecured Debt Securities; provided that no such
modification may, without the consent of the holder of each outstanding
Unsecured Debt Security affected thereby,
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(i) extend the fixed maturity of any Unsecured Debt Securities 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, (ii) reduce the percentage of
Unsecured Debt Securities, the holders of which are required to consent to
any such supplemental indenture or, in the case of the Unsecured Indenture,
(iii) reduce the percentage of Unsecured Debt Securities, the holders of
which are required to waive any default and its consequences or modify any
provision of the Indenture relating to the percentage of Unsecured Debt
Securities (except to increase such percentage) required to rescind and
annul any declaration of principal due and payable upon an Event of
Default. (Section 9.02)
In addition, the Company and the Indenture Trustee may execute,
without the consent of any holder of Unsecured Debt Securities (including
the Unsecured Debt Securities being offered hereby), any supplemental
indenture for certain other usual purposes, including the creation of any
new series of Unsecured Debt Securities. (Sections 2.01, 9.01 and 10.01)
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 Unsecured Debt
Securities:
(a) failure for 30 days (except with respect to Subordinated Debt
Securities issued under the Subordinated Indenture, in which case failure
for 10 days) to pay interest on the Unsecured Debt Securities of that
series when due; or
(b) failure to pay principal of or premium, if any, on the Unsecured
Debt Securities 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 under which Unsecured Debt Securities of that series were issued
for 90 days after notice; or
(d) 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 and, in the case of the
Unsecured Indenture, such order shall have continued unvacated and unstayed
for a period of 90 days; 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
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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
(e) 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. (Section 6.01)
The holders of a majority in aggregate outstanding principal amount
of any series of the Unsecured Debt Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy
available to the Indenture Trustee for that series. (Section 6.06) The
applicable Indenture Trustee or the holders of not less than 25% in
aggregate outstanding principal amount of any particular series of the
Unsecured Debt Securities 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 such Indenture
Trustee. (Sections 6.01 and 6.06)
The holders of a majority in aggregate outstanding principal amount
of all series of the Unsecured Debt Securities issued under the Indenture
and affected thereby may, on behalf of the holders of all the Unsecured
Debt Securities 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 applicable Indenture 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))
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 Unsecured
Debt Securities of any series (except in each case for certain obligations
to register the transfer or exchange of Unsecured
20
<PAGE>
Debt Securities, replace stolen, lost or mutilated Unsecured Debt
Securities, maintain paying agencies and hold moneys for payment in trust)
if the Company deposits with the Indenture Trustee, in trust, moneys or
Government Obligations, in an amount sufficient to pay all the principal
of, and interest on, the Unsecured Debt Securities of such series on the
dates such payments are due in accordance with the terms of such Unsecured
Debt Securities and, if, among other things, such Unsecured Debt Securities
are not due and payable, or are not to be called for redemption, within one
year, the Company delivers to the Indenture Trustee an Opinion of Counsel
to the effect that the holders of Unsecured Debt Securities 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 (a) the Company delivers to the Indenture Trustee an
Opinion of Counsel (in lieu of the Opinion of Counsel referred to above) to
the effect that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (ii) 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 Subordinated Debt Securities 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 (iii) such deposit shall not result in
the Company, the Indenture Trustee or the trust resulting from the
defeasance being deemed an investment company under the Investment Company
Act of 1940, as amended and, (b) in the case of the Unsecured Indenture, no
event or condition shall exist that would prevent the Company from making
payments of the principal of (and premium, if any) or interest on the
Securities on the date of such deposit or at any time during the period
ending on the ninety-first day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period), then, in such event, the Company will be deemed
to have paid and discharged the entire indebtedness on the Unsecured Debt
Securities of such series. In the event of any such defeasance and
discharge of Unsecured Debt Securities of such series, holders of Unsecured
Debt Securities 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 Unsecured Debt Securities of such series. (Sections 11.01,
11.02 and 11.03 of the Indenture)
GOVERNING LAW
The Indenture and the Unsecured Debt Securities will be governed by,
and construed in accordance with, the laws of the State of New York.
(Section 13.04)
21
<PAGE>
INFORMATION CONCERNING THE INDENTURE TRUSTEE
The Indenture 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 person would
exercise in the conduct of his or her own affairs. (Section 7.01) Subject
to such provision, the Indenture Trustee is under no obligation to exercise
any of the powers vested in it by the Indenture at the request of any
holder of Unsecured Debt Securities, unless offered reasonable indemnity by
such holder against the costs, expenses and liabilities which might be
incurred thereby. (Section 7.02) The Indenture 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 Indenture Trustee
reasonably believes that repayment or adequate indemnity is not reasonably
assured to it. (Section 7.01)
The Bank of New York and The Chase Manhattan Bank serve as trustees
and agents 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 of the Subordinated Indenture and
Section 13.10 of the Unsecured Indenture)
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges of the Company for the years
ended December 31, 1991 through 1995 and for the three months ended March
31, 1996, calculated as required by the Commission, are 2.4x, 1.6x, 2.5x,
3.0x, 2.9x and 2.7x, respectively. Excluding the effect of special charges,
the ratio was 1.9x for the year 1992. For the purpose of computing such
ratios, "earnings" represents the aggregate of (a) income from continuing
operations, (b) taxes based on income from continuing operations, (c)
minority interest in the income of majority-owned subsidiaries that have
fixed charges, (d) fixed charges and (e) undistributed losses (income) of
less than 50% owned affiliates without loan guarantees. "Fixed charges"
represents consolidated interest charges, an estimated amount representing
the interest factor in rents and preferred stock dividend requirements of
majority-owned subsidiaries, and excludes discontinued operations.
22
<PAGE>
CONSOLIDATED RATIOS OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS
The ratios of earnings to combined fixed charges and preferred stock
dividends of the Company for the years ended December 31, 1991 through 1995
and for the three months ended March 31, 1996, calculated as required by
the Commission, are 2.2x, 1.4x, 2.2x, 2.6x, 2.5x and 2.4x, respectively.
Excluding the effect of special charges, the ratio was 1.8x for the year
1992. For the purpose of computing such ratios, "earnings" represents the
aggregate of (a) income from continuing operations, (b) taxes based on
income from continuing operations, (c) minority interest in the income of
majority-owned subsidiaries that have fixed charges, (d) fixed charges and
(e) undistributed losses (income) of less than 50% owned affiliates without
loan guarantees. "Fixed charges" represents consolidated interest charges,
an estimated amount representing the interest factor in rents and preferred
stock dividend requirements of majority-owned subsidiaries, and excludes
discontinued operations. "Preferred stock dividends" represents preferred
dividend requirements multiplied by the ratio which pre-tax income from
continuing operations bears to income from continuing operations.
PLAN OF DISTRIBUTION
The Company may sell the Securities through underwriters, dealers or
agents, or directly to one or more purchasers. The Prospectus Supplement
with respect to the Securities offered thereby will set forth the terms of
the offering of such Securities, including the name or names of any
underwriters, dealers or agents, the purchase price of such Securities and
the proceeds to the Company from such sale, any underwriting discounts and
other items constituting underwriters' or agents' compensation, any initial
public offering price and any discounts or concessions allowed or reallowed
or paid to dealers.
If underwriters are involved in the sale of any Securities, such
Securities will be acquired by the underwriters for their own account and
may be resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying
prices determined at the time of sale. The underwriter or underwriters with
respect to a particular underwritten offering of Securities will be named
in the Prospectus Supplement relating to such offering and, if an
underwriting syndicate is used, the managing underwriter or underwriters
will be set forth on the cover page of such Prospectus Supplement. Unless
otherwise set forth in such Prospectus Supplement, the obligations of the
underwriters to purchase the Securities will be subject to certain
conditions precedent, and the underwriters will be obligated to purchase
all such Securities if any are purchased.
If a dealer is used in the sale of any Securities, the Company will
sell such Securities to the dealer, as principal. The dealer may then
resell such Securities to the public at varying prices to be determined by
such dealer at the time of resale. The name of any dealer involved in a
particular offering of Securities and any discounts or concessions allowed
or
23
<PAGE>
reallowed or paid to the dealer will be set forth in the Prospectus
Supplement relating to such offering.
The Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any such agent, who may be
deemed to be an underwriter as that term is defined in the Securities Act,
involved in the offer or sale of any of the Securities will be named, and
any commissions payable by the Company to such agent will be set forth, in
the Prospectus Supplement relating to such offer or sale. Unless otherwise
indicated in such Prospectus Supplement, any such agent will be acting on a
reasonable best efforts basis for the period of its appointment.
If sold through agents, the Additional Common Stock may be sold from
time to time through such agents, by means of (i) ordinary brokers'
transactions, (ii) block transactions (which may involve crosses) in
accordance with the rules of the NYSE, the PSE or other stock exchanges on
which the Common Stock is admitted to trading privileges (the "Exchanges"),
in which such agent may attempt to sell the Additional Common Stock as
agent but may position and resell all or a portion of the blocks as
principal, (iii) "fixed price offerings" off the floor of the Exchanges or
"exchange distributions" and "special offerings" in accordance with the
rules of the Exchanges or (iv) a combination of any such methods of sale,
in each case at market prices prevailing at the time of sale in the case of
transactions on the Exchanges and at negotiated prices related to
prevailing market prices in the case of transactions off the floor of the
Exchanges. In connection therewith, distributors' or sellers' commissions
may be paid or allowed that will not exceed those customary in the types of
transactions involved. If an agent purchases Additional Common Stock as
principal, such stock may be resold by any of the methods of sale described
above.
From time to time an agent may conduct a "fixed price offering" of
Additional Common Stock covered by this Prospectus off the floor of the
Exchanges. In such case, such agent would purchase a block of shares from
the Company and would form a group of selected dealers to participate in
the resale of the shares. Any such offering would be described in the
Prospectus Supplement setting forth the terms of the offering and the
number of shares being offered. It is also possible that an agent may
conduct from time to time "special offerings" or "exchange distributions"
in accordance with the rules of the Exchanges. Any such offering or
distribution would be described in the Prospectus Supplement at the time
thereof.
If so indicated in an applicable Prospectus Supplement, the Company
will authorize dealers acting as the Company's agents to solicit offers by
certain institutions to purchase Securities from the Company at the public
offering price set forth in such Prospectus Supplement pursuant to delayed
delivery contracts ("Contracts") providing for payment and delivery on the
date or dates stated in such Prospectus Supplement. Each Contract will be
for an amount not less than, and the aggregate principal amount of
Securities sold pursuant to Contracts shall be not less nor more than, the
respective amounts stated in such Prospectus Supplement. Institutions with
whom Contracts, when authorized, may be made include
24
<PAGE>
commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and other
institutions, but will in all cases be subject to the approval of the
Company. Contracts will not be subject to any conditions except (i) the
purchase by an institution of the Securities covered by its Contracts shall
not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject, and
(ii) if the Securities are being sold to underwriters, the Company shall
have sold to such underwriters the total principal amount of the Securities
less the principal amount thereof covered by Contracts. Agents and
underwriters will have no responsibility in respect of the delivery or
performance of Contracts.
Certain of the underwriters, dealers or agents and their associates
may be customers of, engage in the transactions with or perform services
for the Company and its affiliates in the ordinary course of business.
The Company will indicate in a Prospectus Supplement the extent to
which it anticipates that a secondary market for the Securities will be
available.
Underwriters, dealers and agents participating in the distribution of
the Securities may be deemed to be "underwriters" within the meaning of,
and any discounts and commissions received by them and any profit realized
by them on resale of such Securities may be deemed to be underwriting
discounts and commissions under, the Securities Act. Subject to certain
conditions, the Company may agree to indemnify the several underwriters,
dealers or agents and their controlling persons against certain civil
liabilities, including certain liabilities under the Securities Act, or to
contribute to payments any such person may be required to make in respect
thereof.
LEGAL OPINIONS
The validity of the Securities will be passed upon for the Company by
Stoel Rives LLP, counsel to the Company, 700 NE Multnomah, Suite 950,
Portland, Oregon 97232, and for any underwriters, dealers or agents by
Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New
York 10004. John M. Schweitzer and John Detjens III, who are assistant
secretaries of the Company, are partners in the firm of Stoel Rives LLP.
EXPERTS
The financial statements incorporated in this Prospectus by reference
from the Company's Annual Report on Form 10-K have been audited by Deloitte
& Touche LLP, independent auditors, as stated in their reports incorporated
by reference herein (which report with respect to the Form 10-K for the
year ended December 31, 1995 expresses an unqualified opinion and includes
an explanatory paragraph relating to changes adopted in accounting for
income taxes and other postretirement benefits), and have been so
incorporated in reliance upon the report of such firm given upon its
authority as experts in accounting and auditing.
25
<PAGE>
With respect to any unaudited interim financial information which 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 the
Company's 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 of which this
Prospectus is a part prepared or certified by an accountant within the
meaning of Sections 7 and 11 of the Securities Act.
26
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Registration fee......................................... $294,308
*Fees of state regulatory authorities..................... 2,500
*Counsel fees............................................. 345,000
*Accountants' fees........................................ 60,000
*Stock exchange listing fees.............................. 60,000
*Trustee fees............................................. 25,000
*Rating agency fees....................................... 150,000
*Indenture recording fees................................. 45,000
*Blue sky expenses........................................ 5,000
*Printing and delivery of registration statement,
prospectus, certificates, etc.......................... 150,000
*Miscellaneous expenses................................... 63,192
----------
Total................................................ $1,200,000
- -------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Second Restated Articles of Incorporation as amended
("Restated Articles"), and Bylaws, as amended ("Bylaws"), require the
Company to indemnify directors and officers to the fullest extent not
prohibited by law. The right to and amount of indemnification ultimately
will be 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 the Company 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 the Company, 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 the Company, 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
II-1
<PAGE>
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 the Company to grant a right of
indemnification in respect of any proceeding by or in the right of
the Company 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 the Company, except that no indemnification may be
granted if such person is adjudged to be liable to the Company unless
permitted by a court.
(c) Under the OBCA, the Company 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 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, the Company 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. Resolutions adopted by the Company's Board of
Directors require the Company to indemnify directors and officers of
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<PAGE>
the Company 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.
The Company has directors' and officers' liability insurance coverage
which insures directors and officers of the Company against certain
liabilities.
ITEM 16. 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 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement provided, however, that any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective registration statement; and
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<PAGE>
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
under Item 15, 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 Securities Act of 1933 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 Securities Act of 1933 and will be governed by the final adjudication
of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portland, State of Oregon, on
July 29, 1996.
PACIFICORP
By: RICHAD T. O'BRIEN
-------------------------------
Richard T. O'Brien
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been duly signed by the following persons on
July 29, 1996 in the capacities indicated.
Signature Title
--------- -----
*FREDERICK W. BUCKMAN President, Chief Executive Officer
- ---------------------------------- and Director
Frederick W. Buckman
RICHARD T. O'BRIEN Senior Vice President and Chief
- ---------------------------------- Financial Officer (also Chief
Richard T. O'Brien Accounting Officer)
*KATHRYN A. BRAUN Director
- ----------------------------------
Kathryn A. Braun
*C. TODD CONOVER Director
- ----------------------------------
C. Todd Conover
*NOLAN E. KARRAS Director
- ----------------------------------
Nolan E. Karras
*KEITH R. McKENNON Director
- ----------------------------------
Keith R. McKennon
(Chairman)
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*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
*PETER I. WOLD Director
- ----------------------------------
Peter I. Wold
*By RICHARD T. O'BRIEN
------------------------------
Richard T. O'Brien
(Attorney-in-Fact)
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<PAGE>
EXHIBIT INDEX
Exhibit Sequential
No. Description Page No.
--- ----------- --------
*1(a) Form of Underwriting Agreement relating to Additional
Common Stock (Exhibit (1)(b), File No. 33-49607).
*1(b) Form of Underwriting Agreement relating to Additional
Preferred Stock (Exhibit (1), File No. 33-41983).
*1(c) Form of Underwriting Agreement relating to Additional
Bonds (Exhibit (1)(a), File No. 33-49607).
*1(d) Form of Underwriting Agreement relating to Unsecured
Debt Securities (Exhibit (1)(b), File No. 33-55309).
*4(a) Second Restated Articles of Incorporation of the
Company, as amended (Exhibit (3)a, Form 10-K for
fiscal year ended December 31, 1992, File No.
1-5152).
*4(b) Form of Certificate evidencing Common Stock (Exhibit
4-A to Form 8-B, File No. 1-5152).
*4(c) Form of Certificate evidencing No Par Serial
Preferred Stock (Exhibit 4-D to Form 8-B, File No.
1-5152).
*4(d) Bylaws of the Company (as restated and amended
November 17, 1993) (Exhibit (3)b, Form 10-K for
fiscal year ended December 31, 1993, File No.
1-5152).
*4(e) Mortgage and Deed of Trust dated as of January 9,
1989 between the Company and Morgan Guaranty Trust
Company of New York (The Chase Manhattan Bank
(formerly Chemical Bank), successor), Trustee, as
supplemented and modified by eleven Supplemental
Indentures (Exhibit 4-E, Form 8-B, File No. 1-5152;
Exhibit (4)(b), File No. 33-31861; Exhibit (4)(a),
Form 8-K dated January 9, 1990, File No. 1-5152;
Exhibit 4(a), Form 8-K dated September 11, 1991, File
No. 1-5152; Exhibit 4(a), Form 8-K dated January 7,
1992, File No. 1-5152; and Exhibit 4(a), Form 10-Q
for the quarter ended March 31, 1992, File No.
1-5152; and Exhibit 4(a), Form 10-Q for the quarter
ended September 30, 1992, File No. 1-5152;
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Exhibit Sequential
No. Description Page No.
--- ----------- --------
Exhibit 4(a), Form 8-K dated April 1, 1993, File No.
1-5152; Exhibit 4(a), Form 10-Q for the quarter ended
September 30, 1993, File No. 1-5152; Exhibit 4(a),
Form 10-Q for the quarter ended June 30, 1994, File
No. 1-5152; Exhibit 4(b), Form 10-K for fiscal year
ended December 31, 1994, File No. 1-5152; and Exhibit
(4)b, Form 10-K for the fiscal year ended December
31, 1995, File No. 1-5152).
*4(f) Form of First Mortgage Bond (Exhibit (4)(h), File
No. 33-26517).
*4(g) Indenture dated as of May 1, 1995 between the Company
and The Bank of New York, as Trustee, as supplemented
by two Supplemental Indentures (Exhibit (4)(a), File
No. 333- 03357).
*4(h) Third Supplemental Indenture to Indenture dated as of
June 1, 1996.
*4(i) Form of Supplemental Indenture to Subordinated
Indenture to be used in connection with the issuance
of Subordinated Debt Securities (Exhibit 4(d), File
No. 33-58569).
*4(j) Form of Subordinated Debt Securities (included in
Exhibit 4(g) above).
4(k) Form of Indenture between the Company and The Chase
Manhattan Bank, as Trustee, relating to Unsecured
Debt Securities other than Subordinated Debt
Securities.
4(l) Form of Unsecured Debt Security other than
Subordinated Debt Securities (included in Exhibit
4(k) above).
5 Opinion of Stoel Rives LLP.
*12(a) Statements re Computation of Ratios of Earnings to
Fixed Charges (Exhibit 12(a), Form 10-Q for the
quarter ended March 31, 1996, File No. 1-5152).
II-8
<PAGE>
Exhibit Sequential
No. Description Page No.
--- ----------- --------
*12(b) Statements re Computation of Ratios of Earnings to
Combined Fixed Charges and Preferred Stock Dividends.
(Exhibit 12(b), Form 10-Q for the quarter ended March
31, 1996, File No. 1-5152).
15 Letter re Unaudited Interim Financial Information.
23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Stoel Rives LLP (included in Exhibit 5
above).
24 Powers of Attorney.
25(a) Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, as
Trustee under the Indenture dated as of May 1, 1995
relating to Subordinated Debt Securities, as
supplemented, between the Company and The Bank of New
York.
25(b) Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Chase Manhattan Bank,
as Trustee under the Indenture relating to Debt
Securities other than Subordinated Debt Securities,
between the Company and The Chase Manhattan Bank.
25(c) Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Chase Manhattan Bank,
as Trustee, under the Mortgage and Deed of Trust,
dated as of January 9, 1989 between the Company and
Morgan Guaranty Trust Company of New York (The Chase
Manhattan Bank (formerly Chemical Bank), successor),
Trustee, as supplemented and modified, relating to
First Mortgage Bonds.
- ------------------
* Incorporated by reference.
II-9
- --------------------------------------------------------------------------------
PACIFICORP
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
----------------
INDENTURE
DATED AS OF AUGUST 1, 1996
----------------
DEBT SECURITIES
- --------------------------------------------------------------------------------
<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
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)
313(d)...................................................... 5.04(c)
314(a)...................................................... 5.03
314(b)...................................................... Inapplicable
314(c)...................................................... 13.07
314(d)...................................................... Inapplicable
314(e)...................................................... 13.07
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)...................................................... 13.09
<PAGE>
TABLE OF CONTENTS*
Page
----
PARTIES......................................................................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.........................................................2
Authenticating Agent............................................2
Board of Directors..............................................2
Board Resolution................................................2
Business Day....................................................2
Certificate.....................................................2
Commission......................................................2
Company.........................................................3
Corporate Trust Office..........................................3
Default.........................................................3
Depository......................................................3
Exchange Act....................................................3
Event of Default................................................3
Global Security.................................................3
Governmental Obligations........................................4
Indenture.......................................................4
Interest Payment Date...........................................4
Officers' Certificate...........................................4
Opinion of Counsel..............................................4
Outstanding.....................................................5
Person..........................................................5
Predecessor Security............................................5
Responsible Officer.............................................5
Securities Act..................................................6
Security or Securities..........................................6
Security Register and Security Registrar........................6
Securityholder..................................................6
Trustee.........................................................6
Trust Indenture Act.............................................6
- -------------
* 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>
Page
----
Vice President..................................................6
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation, terms, amount, authentication and
delivery of Securities..........................................7
SECTION 2.02 Form of Securities and Trustee's certificate....................8
SECTION 2.03 Date and denominations of Securities, and provisions
for payment of principal, premium and interest..................8
SECTION 2.04 Execution of Securities........................................10
SECTION 2.05 Exchange of Securities.........................................12
(a) Registration and transfer of Securities...................12
(b) Securities to be accompanied by proper
instruments of transfer...................................12
(c) Charges upon exchange, transfer or registration
of Securities.............................................12
(d) Restrictions on transfer or exchange at time
of redemption.............................................12
SECTION 2.06 Temporary Securities...........................................13
SECTION 2.07 Mutilated, destroyed, lost or stolen Securities................13
SECTION 2.08 Cancellation of surrendered Securities.........................14
SECTION 2.09 Provisions of Indenture and Securities for sole
benefit of parties and Securityholders.........................14
SECTION 2.10 Appointment of Authenticating Agent............................14
SECTION 2.11 Global Security................................................15
SECTION 2.12 CUSIP Numbers..................................................17
<PAGE>
Page
----
ARTICLE THREE
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption of Securities.......................................17
SECTION 3.02 (a) Notice of redemption......................................17
(b) Selection of Securities in case less than all
Securities to be redeemed.................................18
SECTION 3.03 (a) When Securities called for redemption become
due and payable...........................................19
(b) Receipt of new Security upon partial payment..............19
SECTION 3.04 Sinking Fund for Securities....................................19
SECTION 3.05 Satisfaction of Sinking Fund Payments with Securities..........19
SECTION 3.06 Redemption of Securities for Sinking Fund......................20
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01 Payment of principal of (and premium, if any) and
interest on Securities.........................................20
SECTION 4.02 Maintenance of office or agency for payment of Securities,
designation of office or agency for payment, registration,
transfer and exchange of Securities............................20
SECTION 4.03 (a) Duties of paying agent....................................21
(b) Company as paying agent...................................21
(c) Holding sums in trust.....................................21
SECTION 4.04 Appointment to fill vacancy in office of Trustee...............22
SECTION 4.05 Restriction on consolidation, merger or sale...................22
<PAGE>
Page
----
ARTICLE FIVE
SECURITYHOLDERS' LISTS, AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01 Company to furnish Trustee information as to names
and addresses of Securityholders...............................22
SECTION 5.02 (a) Trustee to preserve information as to names and
addresses of Securityholders received by it in
capacity of paying agent..................................22
(b) Trustee may destroy list of Securityholders
on certain conditions.....................................22
(c) Trustee to make information as to names and
addresses of Securityholders available to
"applicants" or mail communications to
Securityholders in certain circumstances..................22
(d) Procedure if Trustee elects not to make
information available to applicants.......................23
(e) Company and Trustee not accountable for
disclosure of information.................................23
SECTION 5.03 (a) Annual and other reports to be filed by Company
with Trustee..............................................23
(b) Additional information and reports to be filed
with Trustee and Securities and Exchange Commission.......24
(c) Summaries of information and reports to be
transmitted by Company to Securityholders.................24
(d) Annual Certificate to be furnished to Trustee.............24
SECTION 5.04 (a) Trustee to transmit annual report to Securityholders......24
(b) Trustee to transmit certain further reports to
Securityholders...........................................25
(c) Copies of reports to be filed with stock exchanges
and Securities and Exchange Commission....................25
<PAGE>
Page
----
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
UPON EVENT OF DEFAULT
SECTION 6.01 (a) Events of Default defined.................................26
(b) Acceleration of maturity upon Event of Default............27
(c) Waiver of default and rescission of declaration
of maturity...............................................27
(d) Restoration of former position and rights upon
curing default............................................27
SECTION 6.02 (a) Covenant of Company to pay to Trustee whole
amount due on Securities on default in payment
of interest or principal (and premium, if
any)......................................................28
(b) Trustee may recover judgment for whole amount
due on Securities on failure of Company to
pay.......................................................28
(c) Filing of proof of claim by Trustee in
bankruptcy, reorganization or receivership
proceeding................................................28
(d) Rights of action and of asserting claims may
be enforced by Trustee without possession of
Securities................................................29
SECTION 6.03 Application of moneys collected by Trustee.....................29
SECTION 6.04 Limitation on suits by holders of Securities...................29
SECTION 6.05 (a) Remedies cumulative.......................................30
(b) Delay or omission in exercise of rights not
waiver of default.........................................30
SECTION 6.06 Rights of holders of majority in principal amount
of Securities to direct Trustee and to waive defaults..........30
SECTION 6.07 Trustee to give notice of defaults known to it, but
may withhold in certain circumstances..........................31
SECTION 6.08 Requirements of an undertaking to pay costs in
certain suits under Indenture or against Trustee...............31
<PAGE>
Page
----
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.................32
(b) Trustee not relieved from liability for negligence
or willful misconduct except as provided in this
section...................................................32
(1) Prior to Event of Default and after the curing of
all Events of Default which may have occurred.............32
(i) Trustee not liable except for performance of
duties specifically set forth.............................32
(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...............32
(2) Trustee not liable for error of judgment made in
good faith by Responsible Officer unless Trustee
negligent.................................................33
(3) Trustee not liable for action or non-action in
accordance with direction of holders of majority
in principal amount of Securities.........................33
(4) Trustee need not expend own funds without adequate
indemnity.................................................33
(c) Provisions regarding liability of Trustee subject
to Section 7.01...........................................33
SECTION 7.02 Subject to provisions of Section 7.01:
(a) Trustee may rely on documents believed genuine and
properly signed or presented..............................33
(b) Sufficient evidence by certain instruments
provided for..............................................33
(c) Trustee may consult with counsel and act on
advice or Opinion of Counsel..............................33
(d) Trustee may require indemnity from Securityholders........34
<PAGE>
Page
----
(e) Prior to Event of Default Trustee not bound to
investigate facts or matters stated in
certificates, etc., unless requested in writing by
Securityholders...........................................34
(f) Trustee not liable for actions in good faith
believed to be authorized.................................34
(g) Trustee not bound to make investigation...................34
(h) Trustee may perform duties directly or through
agents or attorneys.......................................34
(i) Application for Instructions..............................34
SECTION 7.03 (a) Trustee not liable for recitals in Indenture
or in Securities..........................................35
(b) No representations by Trustee as to validity
of Indenture or of Securities.............................35
(c) Trustee not accountable for use of Securities
or proceeds...............................................35
SECTION 7.04 Trustee, paying agent or Security Registrar may own
Securities.....................................................35
SECTION 7.05 Moneys received by Trustee to be held in trust
without interest...............................................35
SECTION 7.06 (a) Trustee entitled to compensation, reimbursement
and indemnity.............................................35
(b) Obligations to Trustee to be secured by claim
prior to Securities.......................................36
(c) Services in connection with Event of Default..............36
SECTION 7.07 Right of Trustee to rely on certificate of officers of
Company where no other evidence specifically
prescribed.....................................................36
SECTION 7.08 Trustee acquiring conflicting interest to eliminate
conflict or resign.............................................36
SECTION 7.09 Requirements for eligibility of Trustee........................36
SECTION 7.10 (a) Resignation of Trustee and appointment of successor.......37
(b) Removal of Trustee by Company or by court on
Securityholders' application..............................37
<PAGE>
Page
----
(c) Removal of Trustee by holders of majority in
principal amount of Securities............................38
(d) Time when resignation or removal of Trustee effective.....38
(e) One Trustee for each series...............................38
SECTION 7.11 (a) Acceptance by successor to Trustee........................38
(b) Trustee with respect to less than all series..............38
(c) Company to confirm Trustee's rights.......................39
(d) Successor Trustee to be qualified.........................39
(e) Notice of succession......................................39
SECTION 7.12 Successor to Trustee by merger, consolidation or
succession to business.........................................39
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...........................39
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of action by Securityholders..........................40
SECTION 8.02 Proof of execution of instruments and of holding
of Securities..................................................40
SECTION 8.03 Who may be deemed owners of Securities.........................40
SECTION 8.04 Securities owned by Company or controlled or controlling
companies disregarded for certain purposes.....................41
SECTION 8.05 Instruments executed by Securityholders
bind future holders............................................41
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01 Purposes for which supplemental indenture may be
entered into without consent of Securityholders................41
SECTION 9.02 Modification of Indenture with consent of
Securityholders................................................43
<PAGE>
Page
----
SECTION 9.03 Effect of supplemental indentures..............................44
SECTION 9.04 Securities may bear notation of changes by supplemental
indentures.....................................................44
SECTION 9.05 Opinion of Counsel.............................................44
ARTICLE TEN
CONSOLIDATION, MERGER AND SALE
SECTION 10.01 Consolidations or mergers of Company and sales or
conveyances of property of Company permitted...................44
SECTION 10.02 (a) Rights and duties of successor company....................44
(b) Appropriate changes may be made in phraseology
and form of Securities....................................45
(c) Company may consolidate or merge into itself or acquire
properties of other corporations..........................45
SECTION 10.03 Opinion of Counsel.............................................45
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 11.01 Satisfaction and discharge of Indenture........................45
SECTION 11.02 Discharge of Company's Obligations.............................46
SECTION 11.03 Opinion of Counsel.............................................47
SECTION 11.04 Application by Trustee of funds deposited for payment
of Securities..................................................47
SECTION 11.05 Repayment of moneys held by paying agent.......................47
SECTION 11.06 Repayment of moneys held by Trustee............................47
<PAGE>
Page
----
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 Incorporators, stockholders, officers and directors
of Company exempt from individual liability....................48
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01 Successors and assigns of Company bound by Indenture...........48
SECTION 13.02 Acts of board, committee or officer of successor
company valid..................................................48
SECTION 13.03 Required notices or demands may be served by mail..............49
SECTION 13.04 Indenture and Securities to be construed in accordance
with laws of the State of New York.............................49
SECTION 13.05 (a) Officers' Certificate and Opinion of Counsel
to be furnished upon applications or demands
by Company................................................49
(b) Statements to be included in each certificate
or opinion with respect to compliance with
condition or covenant.....................................49
SECTION 13.06 Payments due on Sundays or holidays............................49
SECTION 13.07 Provisions required by Trust Indenture Act
of 1939 to control.............................................50
SECTION 13.08 Indenture may be executed in counterparts......................50
SECTION 13.09 Separability of Indenture provisions...........................50
SECTION 13.10 Assignment by Company to subsidiary............................50
ACCEPTANCE OF TRUST BY TRUSTEE................................................50
TESTIMONIUM...................................................................50
SIGNATURES....................................................................50
<PAGE>
THIS INDENTURE, dated as of the 1st day of August, 1996, 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 Chase Manhattan Bank, 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 debt securities (hereinafter referred to as the "Securities")
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
Securities without coupons, to be authenticated by the certificate of the
Trustee;
WHEREAS, to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered, the Company has
duly authorized the execution of this Indenture;
WHEREAS, the Securities and the certificate of authentication to be
borne by the Securities (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 Securities 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
Securities, and the execution of this Indenture and the issuance hereunder
of the Securities 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 Securities;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities are and are to be authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of the
Securities 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
Securities or of any series thereof, without any discrimination, preference
or priority of any one Security over any other by reason of priority in the
time of issue, sale or negotiation thereof, or otherwise, except as
provided herein, as follows:
1
<PAGE>
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 Board Resolution and 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, (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 Securities, as the case may be, appointed
with respect to all or any series of the Securities, 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.
Business Day:
The term "Business Day" 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.
Commission:
The term "Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this
2
<PAGE>
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, the body (if any) performing
such duties at such time.
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.
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 450 West 33rd Street, New York, New York 10001-2697.
default:
The term "default" means any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
Depository:
The term "Depository" means, with respect to Securities of any series for
which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency or any successor registered as a clearing agency under 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 Securities of a
particular series, any event specified in Section 6.01(a), continued for
the period of time, if any, therein designated.
Exchange Act:
The term "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
Global Security:
The term "Global Security" means, with respect to any series of Securities,
a Security 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.
3
<PAGE>
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 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.
The term "Indenture" shall also include the terms of a particular series of
Securities established as contemplated by Section 2.01.
Interest Payment Date:
The term "Interest Payment Date" means, when used with respect to any
installment of interest on a Security of a particular series, the date
specified in such Security, 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 Securities 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.
4
<PAGE>
Outstanding:
The term "outstanding" means, when used with reference to Securities of any
series, subject to the provisions of Section 8.04, as of any particular
time, all Securities of that series theretofore authenticated and delivered
by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee, or delivered to the Trustee for cancellation or
which have previously been canceled; (b) Securities 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 Securities or portions of
such Securities 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) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.07; and (d) Securities paid pursuant to Section 2.07.
Periodic Offering:
The term "Periodic Offering" means an offering of Securities of a series
from time to time the specific terms of which Securities, including without
limitation the rate or rates of interest thereon or formula for determining
the rate or rates of interest thereon, if any, the maturity or maturities
thereof and the redemption provisions, if any, with respect thereto, are to
be determined by the Company upon the issuance of such Securities.
Person:
The term "Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
Predecessor Security:
The term "Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by that particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 2.07 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Security.
Responsible Officer:
The term "Responsible Officer" means, when used with respect to the
Trustee, the chairman of the board of directors, president, any vice
president, secretary, treasurer, any senior trust officer, 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
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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.
Securities Act:
The term "Securities Act" means the Securities Act of 1933, as amended.
Security or Securities:
The term "Security" or "Securities" means any Security or Securities, as
the case may be, authenticated and delivered under this Indenture.
Security Register and Security Registrar:
The terms "Security Register" and "Security Registrar" have the respective
meanings set forth in Section 2.05(b).
Securityholder:
The term "Securityholder," "holder of Securities," "registered holder" or
other similar term means the person or persons in whose name or names a
particular Security shall be registered on the books of the Company kept
for that purpose in accordance with the terms of this Indenture.
Trustee:
The term "Trustee" means The Chase Manhattan Bank 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 Securities means the trustee
with respect to that series.
Trust Indenture Act:
The term "Trust Indenture Act," subject to the provisions of Sections 9.01
and 9.02, means the Trust Indenture Act of 1939, as amended and in effect
at the date of execution of this Indenture.
Vice President:
The term "Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
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ARTICLE TWO
Issue, Description, Terms, Execution,
Registration and Exchange of Securities
SECTION 2.01. The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series up to the
aggregate principal amount of Securities 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 Securities
of a particular series. Prior to the initial issuance of Securities of any
series, there shall be established in or pursuant to a Board Resolution
delivered to the Trustee, and set forth or determined in the manner
provided in an Officers' Certificate delivered to the Trustee, or
established in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which shall
distinguish the Securities of that series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of that series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, in exchange for or in
lieu of other Securities of that series); provided, however, that,
notwithstanding this Section 2.01(2) or any other provision hereof,
and unless otherwise expressly provided with respect to a series of
Securities, the aggregate principal amount of a series of Securities
may be increased and additional Securities of such series may be
issued up to the maximum aggregate principal amount authorized with
respect to such series as increased;
(3) the date or dates on which the principal of the Securities
of that series is payable;
(4) the rate or rates at which the Securities 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 period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of that
series may be redeemed, in whole or in part, at the option of the
Company;
(7) the obligation, if any, of the Company to redeem or
purchase Securities 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
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holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which, Securities
of that series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(8) the form of the Securities of that series, including the
form of the Certificate of Authentication for that series;
(9) if denominations of other than $1,000 or any integral
multiple thereof, the denominations in which Securities of that
series shall be issuable;
(10) whether the Securities are issuable as a Global Security
and, in such case, the identity of the Depository for that series;
and
(11) any and all other terms with respect to that series (which
terms shall not be inconsistent with the terms of this Indenture).
All Securities 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 Securities of any series and the Certificate of
Authentication to be borne by such Securities 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 Securities of that series may be listed, or to conform to usage.
SECTION 2.03. The Securities shall be issuable as registered
Securities and in denominations of $1,000 or any integral multiple thereof,
subject to Section 2.01(9). The Securities 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 Securities
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 the Corporate Trust Office of the Trustee). At the
Company's option, payments on the Securities 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
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more in aggregate principal amount of the Securities of a series who has
delivered a written request to the Trustee at least 14 days prior to the
relevant 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 Security will be made only
upon surrender of that Security to the Trustee. Each Security shall be
dated the date of its authentication. Interest on the Securities 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.
Except as otherwise provided with respect to a particular series of
Securities, the interest installment on any Security which is payable, and
is punctually paid or duly provided for, on any Interest Payment Date for
Securities of that series shall be paid to the person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In
the event that any Security 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 Date and prior to such
Interest Payment Date, interest on that Security will be paid upon
presentation and surrender of that Security as provided in Section 3.03.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Securities 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
Securities to the persons in whose names such Securities (or their
respective Predecessor Securities) 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 Security 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 Securityholder at his or her address as it appears
in the Security Register (as hereinafter defined), not less than 10
days prior to such special record date. Notice of the
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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 Securities
(or their respective Predecessor Securities) 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 Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term "regular record date"
as used in this Section with respect to a series of Securities 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 Security of
a series delivered under this Indenture upon transfer of or in exchange for
or in lieu of any other Security of such series shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other
Security.
SECTION 2.04. The Securities 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 and 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 upon the
Securities 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
Securities 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 Securities 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.
Only such Securities as shall bear thereon a Certificate of
Authentication substantially in the form established for such Securities,
executed manually by an authorized officer of the
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Trustee, or by any Authenticating Agent with respect to such Securities,
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
Securities, upon any Security executed by the Company shall be conclusive
evidence that the Security 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 Securities 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
Securities, 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 Securities; provided, however,
that in the case of Securities offered in a Periodic Offering, the Trustee
shall authenticate and deliver such Securities from time to time in
accordance with such procedures (including, without limitation, the receipt
by the Trustee of oral or electronic instructions from the Company or its
duly authorized agents, promptly confirmed in writing) acceptable to the
Trustee as may be specified by or pursuant to such written order delivered
to the Trustee prior to the time of the first authentication of Securities
of such series.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, 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 or, in
the case of a Periodic Offering, the form or forms thereof and the manner
of determining the terms thereof have been established in conformity with
the provisions of the 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. Such Opinion of Counsel
shall also be to the effect that when such Securities have been executed by
the Company and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will be valid and legally binding obligations of
the Company, enforceable in accordance with their terms (subject to
customary exceptions) and will be entitled to the benefits of this
Indenture.
Notwithstanding the provisions of Section 2.01 and of the preceding
two paragraphs, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board
Resolution, Officers' Certificate, written order or Opinion of Counsel
otherwise required pursuant to such Section or paragraphs at or prior to
the authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will, in the good
faith judgment of the Trustee, affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
that is not reasonably acceptable to the Trustee.
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SECTION 2.05. (a) Securities 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 Securities of such series and tenor 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 Securities so surrendered for
exchange, the Company shall execute, the Trustee shall authenticate and
such office or agency shall deliver in exchange therefor the Security or
Securities of the same series and tenor which the Securityholder 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 (herein referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall
register the Securities and the transfers of Securities 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 Securities and
transfer of Securities as herein provided shall be appointed by Board
Resolution (the "Security Registrar").
Upon surrender for transfer of any Security 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 Security or Securities of the same series
and tenor as the Security presented for a like aggregate principal amount.
All Securities 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 Security Registrar) by a written instrument
or instruments of transfer, in form satisfactory to the Company and the
Security Registrar, duly executed by the registered holder or by his
attorney duly authorized 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 Securities, 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, Section 3.03(b) 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 Securities of any series during a period
beginning at the opening of business 15 days before the day of selection
for redemption of Securities 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 Securities of that series to be
redeemed, nor (ii) to register the transfer of or exchange any Securities
of any series or portions thereof called for redemption. The provisions of
this Section 2.05 are, with respect to any Global Security, subject to
Section 2.11 hereof.
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SECTION 2.06. Pending the preparation of definitive Securities of any
series, the Company may execute, and the Trustee shall authenticate and
deliver, temporary Securities (printed, lithographed or typewritten) of any
authorized denomination, and substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions,
insertions and variations as may be appropriate for temporary Securities,
all as may be determined by the Company. Every temporary Security 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 Securities of that series in accordance with
the terms of Section 2.04 hereof. Without unnecessary delay the Company
will execute and will furnish definitive Securities of such series and
thereupon any or all temporary Securities 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 Securities an equal aggregate principal amount of definitive
Securities of that series and tenor, unless the Company advises the Trustee
to the effect that definitive Securities need not be executed and furnished
until further notice from the Company. Until so exchanged, the temporary
Securities of that series shall be entitled to the same benefits under this
Indenture as definitive Securities of that series authenticated and
delivered hereunder.
SECTION 2.07. In case any temporary or definitive Security 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
Security of the same series and tenor bearing a number not
contemporaneously outstanding, in exchange and substitution for the
mutilated Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen. In every case the applicant for a substituted
Security 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 Security and of the ownership
thereof. The Trustee may authenticate any such substituted Security and
deliver the same upon the written order of the Company. Upon the issuance
of any substituted Security, 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 Security 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 Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Security) 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 Security and of the ownership thereof.
Every Security issued pursuant to the provisions of this Section in
substitution for any Security 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 Security
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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 Securities of the same series duly issued hereunder.
All Securities 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 Securities, 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 Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer or for credit against a
sinking fund 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 Securities 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 Securities held by the Trustee. In the absence of such
request the Trustee may dispose of canceled Securities in accordance with
its standard procedures. If the Company shall otherwise acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are delivered to the Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the Securities, 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
Securities, 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
Securities.
SECTION 2.10. So long as any of the Securities of any series remain
outstanding there may be an Authenticating Agent for any or all such series
of Securities which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, transfer or
partial redemption thereof, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
All references in this Indenture to the authentication of Securities 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
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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.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
SECTION 2.11. (a) If the Company shall establish pursuant to Section
2.01 that the Securities of a particular series are to be issued as a
Global Security, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a Global Security
which (i) shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, all or a portion of the Outstanding
Securities 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 Security may be
transferred, in whole but not in part, only to the Depository, 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 Security of a series may be
transferred, in whole but not in part and in the manner provided in Section
2.05, only to the Depository, 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) If so provided with respect to a particular series of
Securities, an interest in any Global Security of such series
shall be exchangeable at the option of the beneficial owner of
such interest in such Global Security for a definitive Security
or Securities registered in the name of any holder other than
the Depository or its nominee at any time following issuance of
such Global Security.
(ii) A beneficial owner of an interest in any Global Security
of such series desiring to exchange such beneficial interest
for a definitive Security or Securities 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
Security to be reduced by the principal amount of such
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beneficial interest so exchanged and shall appropriately
reflect such reduction of the aggregate principal amount of
this Global Security as described in paragraph (iii) of this
Section 2.11(c). Following such reduction, the Trustee shall
authenticate and deliver to such beneficial owner or the
transferee, as the case may be, a definitive Security or
Securities 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 Security for
a definitive Security or Securities, the Security Registrar
shall reflect the reduction of the principal amount of such
Global Security by the principal amount of such beneficial
interest so exchanged on the Security Register. Until exchanged
in full for definitive Securities, such Global Security shall
in all respects be entitled to the same benefits under the
Indenture as the definitive Securities authenticated and
delivered hereunder.
(d) (i) If and so long as the Securities of any series are issued
as a Global Security, any definitive Security or Securities of
such series shall be exchangeable at the option of the
registered holder thereof for a beneficial interest in such
Global Security at any time following the exchange of such
Global Security for such definitive Security or Securities
pursuant to Section 2.11(c).
(ii) A registered holder of a definitive Security or Securities
desiring to exchange such definitive Security or Securities for
a beneficial interest in such Global Security 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 Security or Securities, 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 Security to be
increased by the principal amount of such definitive Security
or Securities so exchanged and shall appropriately reflect such
increase of the aggregate principal amount of the Global
Security as described in paragraph (iii) of this Section
2.11(d).
(iii) Upon any exchange of a definitive Security or Securities
for a beneficial interest in such Global Security, the Security
Registrar shall reflect the increase of the principal amount of
such Global Security by the principal amount of such definitive
Security or Securities so exchanged on the Security Register.
(e) If at any time the Depository for a series of Securities notifies
the Company that it is unwilling or unable to continue as Depository for
that series or if at any time the
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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 Securities of that series and the Company will execute and, subject
to Section 2.05, the Trustee will authenticate and deliver Securities 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 Security of that series in exchange for such Global
Security. In addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer apply
to the Securities 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 Securities 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 Security of such series in
exchange for such Global Security. Upon the exchange of the Global Security
for such Securities in definitive registered form without coupons, in
authorized denominations, the Global Security shall be canceled by the
Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security 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 Security Registrar. The
Trustee shall deliver such Securities to the Depository for delivery to the
persons in whose names such Securities are so registered.
SECTION 2.12. The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so used, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to holders of
Securities; provided that any such notice may state that no representation
is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance
may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers. The Company will promptly notify the Trustee
of any change in the CUSIP numbers.
ARTICLE THREE
Redemption of Securities and Sinking Fund Provisions
SECTION 3.01. The Company may redeem the Securities 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 Securities of
any series in accordance with the right reserved so to do, it shall give
notice of such redemption to holders of the Securities 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 Security Register. Any
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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 Security 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 Securities of that series or
any other series. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption or subject to compliance
with certain conditions provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with any such restriction or
condition.
Each such notice of redemption shall identify the Securities to be
redeemed (including CUSIP numbers), specify the date fixed for redemption
and the redemption price at which Securities of that series are to be
redeemed, and shall state that payment of the redemption price of the
Securities 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 Securities, 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
Securities of a series are to be redeemed, the notice to the holders of
Securities of that series to be redeemed shall specify the particular
Securities to be so redeemed. In case any Security is to be redeemed in
part only, the notice which relates to such Security 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 Security, a
new Security or Securities 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 Securities
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 $1,000 or any integral multiple thereof) of the principal amount
of such Securities of a denomination larger than $1,000, the Securities to
be redeemed and shall thereafter promptly notify the Company in writing of
the numbers of the Securities 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
Securities 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 Security 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.
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SECTION 3.03. (a) If the giving of notice of redemption shall have
been completed as above provided, the Securities or portions of Securities
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 Securities or portions of
Securities 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 Security or
portion thereof. On presentation and surrender of such Securities on or
after the date fixed for redemption at the place of payment specified in
the notice, such Securities 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 Security 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 Security is presented shall
deliver to the holder thereof, at the expense of the Company, a new
Security or Securities of the same series and tenor, of authorized
denominations in principal amount equal to the unredeemed portion of the
Security so presented.
SECTION 3.04. The provisions of this Section 3.04 and Sections 3.05
and 3.06 shall apply to any sinking fund for the retirement of Securities
of a series, except as otherwise specified as contemplated by Section 2.01
for Securities of that series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities 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 Securities of any series is herein referred to
as an "optional sinking fund payment". If provided for by the terms of
Securities 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 Securities of any series as
provided for by the terms of Securities of that series.
SECTION 3.05. The Company (i) may deliver Outstanding Securities of a
series and (ii) may apply as a credit Securities of a series which have
been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to
the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of that series; provided that
such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the redemption
price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
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SECTION 3.06. Not less than 45 days prior to each sinking fund
payment date for any series of Securities, 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 Securities of that series pursuant to Section 3.05 and the basis
for such credit and stating that such Securities have not previously been
so credited and will, together with such Officers' Certificate, deliver to
the Trustee any Securities to be so delivered. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities
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
Securities 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 Securities 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 Securities
of that series at the time and place and in the manner provided herein and
established with respect to such Securities.
SECTION 4.02. So long as any series of the Securities 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 the Corporate Trust Office 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) Securities of that
series may be presented for payment, (ii) Securities 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 Securities 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 within the Borough of Manhattan,
City of New York. 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.
The Company may also from time to time, by written notice signed
by its President or a Vice President and delivered to the Trustee,
designate one or more other offices or agencies for the foregoing purposes
within or outside the Borough of Manhattan, City of New York and may from
time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligations to maintain an office or agency in the Borough of Manhattan,
City of New York for the
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foregoing purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
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 Securities,
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 Securities
of that series (whether such sums have been paid to it by the Company
or by any other obligor of such Securities) 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 Securities) to make any payment of the
principal of (and premium, if any) or interest on the Securities 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 Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on Securities 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 Securities of that series
until such sums 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 Securities) to take such
action. Whenever the Company shall have one or more paying agents for any
series of Securities, it will, on or prior to each due date of the
principal of (and premium, if any) or interest on any Securities 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
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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 Securities
remain outstanding, consolidate with, merge into, merge into itself or sell
or convey all or substantially all of its property to any other Person,
unless the provisions of Article Ten hereof are complied with.
ARTICLE FIVE
Securityholders' 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 each regular record date (as defined in Section 2.03)
for the Securities of a series a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of such
Securities 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 Security 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 Securities 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
Securities received by the Trustee in its capacity as Security Registrar
(if acting in such capacity).
(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 Securities 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 Security 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 Securities of that series or holders of
all Securities with respect to their rights under this Indenture or under
such Securities, 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:
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(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 Securities of such series or of all Securities, 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 Securityholders 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 Securities, 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 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
Securities of that series or of all Securities, 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
Securityholders 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 Securities, 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 Security Registrar shall be
held accountable by reason of the disclosure of any such information as to
the names and addresses of the holders of Securities 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) that the Company is 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
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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 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.
(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 Securityholders, as their names and addresses
appear upon the Security 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 Securities 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 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.
SECTION 5.04. (a) On or before July 15 in each year in which any of
the Securities are outstanding, the Trustee shall transmit by mail,
first-class postage prepaid, to the Securityholders, as their names and
addresses appear upon the Security 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 310(b) of the Trust Indenture Act;
(2) the creation of or any material change to a relationship
described in Section 310(b)(1) through 310(b)(10) of the Trust
Indenture Act;
(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
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which it claims or may claim a lien or charge, prior to that of the
Securities, 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 Securities 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 Securities, 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 Section 311(b) of the Trust
Indenture Act;
(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 Securities 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 Securities or the
Securities 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 Securityholders, as their names and addresses appear upon the
Security 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 Securities of any
series on property or funds held or collected by it as Trustee, and which
it has not previously reported pursuant to this subsection if such advances
remaining unpaid at any time aggregate more than 10% of the principal
amount of Securities 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 Securityholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Securities are listed (if so
listed) and also with the Commission. The Company agrees to promptly notify
the Trustee when any Securities become listed on any stock exchange.
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ARTICLE SIX
Remedies of the Trustee and Securityholders
on Event of Default
SECTION 6.01. (a) Whenever used herein with respect to Securities 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 Securities of that series, as and when the same shall
become due and payable, and continuance of such default for a period
of 30 days;
(2) default in the payment of the principal of (or premium, if
any, on) any of the Securities 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 Securities or
otherwise established with respect to that series of Securities
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
Securities 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 Securities 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 and such order shall have continued unvacated and
unstayed for a period of 90 days; 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
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(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, unless the principal of all the
Securities 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 Securities of that series then outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by such
Securityholders), may declare the principal of all the Securities 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 Securities of that series or
established with respect to that series pursuant to Section 2.01 hereof to
the contrary notwithstanding. 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.
(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
Securities 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 Securities of that series and the
principal of (and premium, if any, on) any and all Securities 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 Securities 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 Securities 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 Securities
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 Securities 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
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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
Securities of a series, and such default shall have continued for a period
of 30 days, or (2) in case default shall be made in the payment of the
principal of (or premium, if any, on) any of the Securities of a series
when the same shall have become due and payable, whether upon maturity of
the Securities 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 Securities of
that series, the whole amount that then shall have become due and payable
on all such Securities 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 Securities 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 Securities of that series and collect in
the manner provided by law out of the property of the Company or other
obligor upon the Securities 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 Securities 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 Securities 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 Securities 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
Securityholders, to pay to the Trustee any amount due it under Section
7.06.
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(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of
any of such Securities, 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 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 Securities 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 Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting
the Securities of that series or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any Securityholder
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 Securities 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 Securities 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
Securities 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 Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: To the Company.
SECTION 6.04. No holder of any Security 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
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with respect to Securities 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 Securities 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 Security of that
series with every other such taker and holder and the Trustee, that no one
or more holders of Securities 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 Securities, 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 Securities of that series. For the
protection and enforcement of the provisions of this Section, each and
every Securityholder 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 Security to receive payment of the principal of
(and premium, if any) and interest on such Security, as therein provided,
on or after the respective due dates expressed in such Security (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 Securityholders 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
Securities, 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 Securities.
(b) No delay or omission of the Trustee or of any holder of any of
the Securities 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
Securityholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.06. The holders of a majority in aggregate principal amount
of the Securities 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 Securities
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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 Securities 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 Securities 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 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 Securities of that series as
and when the same shall become due by the terms of such Securities or a
call for redemption of Securities 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 Securities 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 Securities of that series, as
their names and addresses appear upon the Security 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
Securities 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 Securities 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 Securities of that series,
no such notice to the holders of the Securities 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 Securities 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 Securities 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
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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 and expenses, 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 Securityholder, or group of Securityholders, holding
more than 10% in aggregate principal amount of the outstanding Securities
of any series, or any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or
interest on any Security of such series, on or after the respective due
dates expressed in such Security 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 Securities of a series and after the curing of all
Events of Default with respect to Securities of that series which may have
occurred, shall undertake to perform with respect to Securities 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 Securities
of a series has occurred (which has not be cured or waived), the Trustee
shall exercise with respect to Securities 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 person 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 Securities 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 Securities of that series be determined solely by
the express provisions of this Indenture, and the Trustee shall
not be liable with respect to Securities 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 Securities 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
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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 Securities 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 Securities 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);
(c) 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
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respect of any action taken or suffered or omitted hereunder in good
faith and in reliance thereon;
(d) 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 Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders 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
Securities (which has not been cured or waived) to exercise with respect to
Securities 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 person would exercise or use under the circumstances
in the conduct of his or her own affairs;
(e) 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;
(f) 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;
(g) 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 Securities 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;
(h) 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
(i) 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
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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 Securities
(other than the Certificate of Authentication on the Securities) 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 Securities.
(c) The Trustee shall not be accountable for the use or application
by the Company of any of the Securities or of the proceeds of the
Securities, 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.
SECTION 7.04. The Trustee or any paying agent or Security Registrar,
in its individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not Trustee,
paying agent or Security 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 in writing 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.
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(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 Securities
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
Securities, and the Securities are hereby subordinated to each such senior
lien.
(c) Without prejudice to any other rights available to the Trustee
under applicable law, 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 Securities 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, 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.
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SECTION 7.10. (a) The Trustee or any successor hereafter appointed
may at any time resign with respect to the Securities of one or more series
by giving written notice thereof to the Company and by transmitting notice
of resignation by mail, first-class postage prepaid, to the Securityholders
of that series, as their names and addresses appear upon the Security
Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Securities 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 Securities of that
series, or any Securityholder of that series who has been a bona fide
holder of a Security or Securities of that series 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 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or
Securities 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 Securityholder; 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 Securities 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, with respect to clause (b)(1) above,
the Trustee's duty to resign is stayed as provided in Section 310(b) of the
Trust Indenture Act, any Securityholder who has been a bona fide holder of
a Security or Securities 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. If a notice of removal shall have been delivered to the
Trustee and no successor trustee shall have been appointed and accepted
appointment within 30 days after the Trustee's receipt of such notice of
removal, the Trustee may petition any court of competent jurisdiction for
the appointment of a successor trustee.
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(c) The holders of a majority in aggregate principal amount of the
Securities 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 Securities 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 Securities of one or more series or all of
such series, and at any time there shall be only one Trustee with respect
to the Securities of any particular series.
SECTION 7.11. (a) In case of the appointment hereunder of a successor
trustee with respect to all Securities, 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 Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor trustee with respect to the
Securities 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 Securities of that or those 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
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee and (3) 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 Securities 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
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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 Securities of
that or those series to which the appointment of such successor trustee
relates; but, on request of the Company or any successor trustee, such
retiring Trustee 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 Securities 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 under the
Trust Indenture Act 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
Securityholders, as their names and addresses appear upon the Security
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 all or substantially all of 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 the Trust Indenture Act 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 Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 7.13. If and when the Trustee shall become a creditor of the
Company (or any other obligor upon the Securities), 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
Securities).
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ARTICLE EIGHT
Concerning the Securityholders
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 Securities of a particular series may take any action (including the
making of 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
Securities of that series in person or by agent or proxy appointed in
writing.
If the Company shall solicit from the Securityholders 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 Securityholders 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, including any revocation thereof, may be given before or
after the record date, but only the Securityholders of record at the close
of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite
proportion of outstanding Securities of that series have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the
outstanding Securities of that series shall be computed as of the record
date; provided that no such authorization, agreement or consent by such
Securityholders 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 Securityholder (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 Securities 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 Securities shall be proved by the Security
Register of such Securities or by a certificate of the Security
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 Security, the Company, the Trustee, any paying agent and
any Security Registrar may deem and treat the person in whose name such
Security shall be registered upon the books of the
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Company as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notice of ownership or
writing thereon made by anyone other than the Security 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 Security
and for all other purposes; and neither the Company nor the Trustee nor any
paying agent nor any Security Registrar shall be affected by any notice to
the contrary.
SECTION 8.04. In determining whether the holders of the requisite
aggregate principal amount of Securities of a particular series have
concurred in any direction, consent or waiver under this Indenture,
Securities of that series which are owned by the Company or any other
obligor on the Securities 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 Securities 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 Securities of such series which the Trustee actually knows are
so owned shall be so disregarded. Securities 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 Securities 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 Securities of a particular series specified in this Indenture in
connection with such action, any holder of a Security of that series which
is shown by the evidence to be included in the Securities 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 Security. Except as aforesaid, any such
action taken by the holder of any Security shall be conclusive and binding
upon such holder and upon all future holders and owners of such Security,
and of any Security 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 Security. Any action taken by
the holders of the majority or percentage in aggregate principal amount of
the Securities 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 Securities 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
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shall conform to the provisions of the Trust Indenture Act as then in
effect), without the consent of the Securityholders, for one or more of the
following purposes:
(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 Securities;
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the protection
of the holders of the Securities of all or any series as the Board of
Directors and the Trustee shall consider to be for the protection of
the holders of Securities 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
Securities 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 Securities 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 Security 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 Securities at the time outstanding,
notwithstanding any of the provisions of Section 9.02.
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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 Securities 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 Securities of that series under this Indenture; provided,
however, that no such supplemental indenture shall (i) extend the fixed
maturity of any Securities 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 Security then outstanding and affected
thereby, (ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture or reduce
the percentage of Securities, the holders of which are required to waive
any default and its consequences without the consent of the holder of each
Security then outstanding and affected thereby, or (iii) modify any
provision of Section 6.01(c) (except to increase the percentage of
principal amount of Securities required to rescind and annul any
declaration of amounts due and payable under the Securities) without the
consent of the holder of each Security 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 Securityholders
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.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the holders of Securities of any other
series.
It shall not be necessary for the consent of the Securityholders 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.
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 Securityholders of all series affected thereby as their
names and addresses appear upon the Security 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.
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SECTION 9.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article, Article Two, Article Seven or
of Article Ten, 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 Securities 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. Securities 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, Article
Two, Article Seven or of Article Ten, 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 Securities
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 Securities 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
Securities shall prevent any consolidation or merger of the Company with or
into any other Person (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 lease of the assets or other property of the
Company or its successor or successors substantially as an entirety to any
other Person (whether or not affiliated with the Company or its successor
or successors); provided that (i) immediately prior to and immediately
following any such consolidation, merger, sale, conveyance, transfer or
lease, no Event of Default shall have occurred and be continuing and (ii)
the Company is the surviving or continuing Person, or the surviving or
continuing Person that acquires the Company's assets by consolidation,
merger, sale, conveyance, transfer or lease is incorporated in the United
States of America or Canada and expressly assumes the payment and
performance of all obligations of the Company under this Indenture and the
Securities.
SECTION 10.02. (a) In case of any such consolidation, merger, sale,
conveyance, transfer or lease and upon the assumption by the successor
Person, by
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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 Securities 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 Securities pursuant to Section 2.01 to be performed by
the Company with respect to each series, such successor Person 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,
except in the case of a lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the Securities,
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 lease. For the avoidance of doubt, nothing herein
shall relieve the successor Person of liability with respect to such
provisions, the predecessor and successor Persons being jointly and
severally liable therefor. Such successor Person 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 Securities, any or all of the
Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such
successor Person, 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 Securities which previously shall have
been signed and delivered by the officers of the predecessor Company to the
Trustee for authentication, and any Securities which such successor Person
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as
though all of such Securities had been issued at the date of the execution
hereof.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or lease, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
(c) Nothing contained in this Indenture or in any of the Securities
shall prevent the Company from acquiring by purchase or otherwise all or
any part of the property of any other Person (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 lease,
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 Securities of a series theretofore
authenticated (other than any
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Securities which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.07 and Securities 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 Securities 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 (c)
the Company shall deposit or cause to be deposited with the Trustee as
trust funds the entire amount in moneys or Governmental Obligations the
principal of and interest on which, without reinvestment, is sufficient, or
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
such Securities 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 that 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, subject to compliance with
13.05, execute proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to such series.
SECTION 11.02. If at any time all such Securities of a particular
series not theretofore 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, the principal
of and interest on which, without reinvestment is sufficient, or 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
such Securities 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 Securities shall mature and
be paid. Thereafter, sections 7.06 and 11.06 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 conditions that the
Company first shall have caused to be delivered to the Trustee (i) an
Opinion of Counsel to the effect that Securityholders 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
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amount, in the same manner and at the same times as would have been the
case if such deposit and release had not occurred and (ii) the Opinion of
Counsel and Officers' Certificate required by Section 13.05.
SECTION 11.03. If, in addition to satisfying the conditions set forth
in Sections 11.01 or 11.02 (except for the requirement of the Opinion of
Counsel referred to in clause (i) of Section 11.02), the Company delivers
to the Trustee (i) 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
Securityholders of a series with respect to which a deposit has been made
in accordance with Sections 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
hereunder being deemed an "investment company" under the Investment Company
Act of 1940, as amended, (ii) the Company shall have caused to be delivered
to the Trustee the Opinion of Counsel and Officers' Certificate required by
Section 13.05 and (iii) no event or condition shall exist that would
prevent the Company from making payments of the principal of (and premium,
if any) or interest on the Securities on the date of such deposit or at any
time during the period ending on the ninety-first day after the date of
such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period), 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 Securities 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 Securities of a
particular series that are not applied but remain unclaimed by the holders
of such Securities for at least two years after the date upon which the
principal of (and premium, if any) or interest on such Securities shall
have respectively become due and payable, shall, upon written notice from
the Company, be repaid
47
<PAGE>
to the Company 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 Securities 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 Security, 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 Securities 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 Securities 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 Securities.
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.
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.
48
<PAGE>
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
Securities 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: Vice
President and Treasurer. Any notice, election, request or demand by the
Company or any Securityholder 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, Attention: Corporate
Trustee, Administration Department. Except as otherwise expressly provided
herein, any notice by the Company or the Trustee to any Securityholder
shall be deemed to have been sufficiently given, for all purposes, if
deposited first-class postage prepaid in a post office letter box addressed
to the Securityholder as the Securityholder's name and address appears upon
the Security Register.
SECTION 13.04. This Indenture and each Security shall, pursuant to
Section 5-1401 of the New York General Obligations Law, 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 (other than Section
5-1401 of the New York General Obligations Law).
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. 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
Security or the date of redemption of any Security shall not be a Business
49
<PAGE>
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 13.07. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by
operation of Section 318(c) of the Trust Indenture Act, such imposed duties
shall control.
SECTION 13.08. 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 13.9. In case any one or more of the provisions contained in
this Indenture or in the Securities 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 Securities, but this Indenture and
such Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 13.10. The Company will have the right at all times without
the consent of the Securityholders 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 of any such
assignment, the Company will remain primarily 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.
The Chase Manhattan Bank, 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, all as of the day and year first above written.
PACIFICORP
By:
--------------------------------
Its:
----------------------------
Attest:
By:
-------------------------------
Its:
---------------------------
50
<PAGE>
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------------
Its:
----------------------------
Attest:
By:
-------------------------------
Its:
---------------------------
51
STOEL RIVES LLP
---------------
ATTORNEYS
Standard Insurance Center
900 SW Fifth Avenue, Suite 2300
Portland, Oregon 97204-1268
Telephone (503) 224-3380
Fax (503) 220-2480
TDD (503) 221-1045
July 29, 1996
PacifiCorp
700 NE Multnomah, Suite 1600
Portland, OR 97232
Ladies and Gentlemen:
We are acting as counsel to PacifiCorp, an Oregon corporation (the
"Company"), in connection with the proposed issuance and sale by the
Company from time to time of not to exceed $853,491,250 in aggregate
offering price of Common Stock ("Common Stock"), No Par Serial Preferred
Stock ("Preferred Stock"), First Mortgage Bonds ("Bonds") to be issued
pursuant to the Mortgage and Deed of Trust, dated as of January 9, 1989,
between the Company and Morgan Guaranty Trust Company of New York (The
Chase Manhattan Bank (formerly Chemical Bank), successor Trustee), as
amended and supplemented (the "Mortgage") and Unsecured Debt Securities
("Unsecured Debt Securities") to be issued pursuant to an indenture between
the Company and The Bank of New York, as Trustee, as amended and
supplemented (the "Unsecured Indenture"), all as contemplated by the
Registration Statement on Form S-3 (the "Registration Statement") about to
be filed by the Company with the Securities and Exchange Commission for the
registration of the Common Stock, Preferred Stock, Bonds and Unsecured Debt
Securities under the Securities Act of 1933 (the "Act").
In connection with the foregoing, we are of the opinion that:
(a) All action necessary to make valid the proposed issuance of the
Common Stock by the Company will have been taken when:
1. The Registration Statement, as it may be amended, shall have
become effective;
2. Appropriate orders authorizing the issuance of the Common
Stock 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, the Public Service
Commission of Wyoming and an appropriate notice filing shall
have been made with the Washington Utilities and
Transportation Commission;
<PAGE>
PacifiCorp
July 29, 1996
Page 2
3. The Finance Committee or the Pricing Committee of the
Company's Board of Directors shall have duly adopted
appropriate resolutions approving the per share price and
other terms of the sale of the Common Stock in accordance
with the resolutions adopted by the Company's Board of
Directors authorizing the issuance and sale of the Common
Stock; and
4. The Common Stock shall have been appropriately issued 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 Common Stock will have been duly issued and will be validly
outstanding and all shares thereof will be fully paid and
nonassessable.
(c) All action necessary to make valid the proposed issuance of the
Preferred Stock by the Company will have been taken when:
1. The Registration Statement, as it may be amended, shall have
become effective;
2. Appropriate orders authorizing the issuance of the Preferred
Stock 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, the Public Service
Commission of Wyoming and an appropriate notice filing shall
have been made with the Washington Utilities and
Transportation Commission;
3. The Company's Board of Directors, pursuant to authority
vested in it under the Company's Second Restated Articles of
Incorporation, as amended, or the Finance Committee or the
Pricing Committee of the Company's Board of Directors, shall
have duly adopted appropriate resolutions establishing one
or more series of Preferred Stock, fixing certain of the
terms thereof, approving the per share price and other terms
<PAGE>
PacifiCorp
July 29, 1996
Page 3
of the sale of the Preferred Stock in accordance with the
resolutions adopted by the Company's Board of Directors
authorizing the issuance and sale of the Preferred Stock and
authorizing or ratifying such other corporate acts as may be
necessary in connection with the issuance and sale of the
Preferred Stock, and articles of amendment to the Company's
Second Restated Articles of Incorporation, as amended,
complying with the provisions of the Oregon Business
Corporation Act shall have been filed with the office of the
Secretary of State of the State of Oregon; and
4. The Preferred Stock shall have been appropriately issued and
delivered for the consideration contemplated by, and
otherwise in conformity with, the acts, proceedings and
documents referred to above; and
(d) When the steps set forth in paragraph (c) shall have been taken,
the Preferred Stock will have been duly issued and will be
validly outstanding and all shares thereof will be fully paid and
nonassessable.
(e) All action necessary to make valid the proposed issuance of the
Bonds by the Company will have been taken when:
1. The Registration Statement, as it may be amended, shall have
become effective;
2. The Mortgage shall have been qualified under the Trust
Indenture Act of 1939, as amended;
3. Appropriate orders authorizing the issuance of the Bonds 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, the Public Service Commission of Wyoming
and an appropriate notice filing shall have been made with
the Washington Utilities and Transportation Commission;
<PAGE>
PacifiCorp
July 29, 1996
Page 4
4. The Finance Committee or the Pricing Committee of the
Company's Board of Directors shall have duly adopted
appropriate resolutions establishing one or more new series
of Bonds, fixing certain of the terms thereof, authorizing
the execution and delivery of one or more supplemental
indentures with respect to the new series of Bonds,
authorizing the execution and delivery of the Bonds and
authorizing or ratifying such other corporate acts as may be
necessary in connection with the issuance and sale of the
Bonds;
5. One or more supplemental indentures with respect to new
series of Bonds shall have been duly executed and delivered;
and
6. The Bonds shall have been appropriately issued and delivered
for the consideration contemplated by, and otherwise in
conformity with, the acts, proceedings and documents
referred to above; and
(f) When the steps set forth in paragraph (e) shall be taken, the
Bonds 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 usury laws of
any state upon the enforceability of rights of the holders of the
Bonds; and
(g) All action necessary to make valid the proposed issuance of the
Unsecured Debt Securities by the Company will have been taken
when:
1. The Registration Statement, as it may be amended, shall have
become effective;
2. The Unsecured Indenture shall have been qualified under the
Trust Indenture Act of 1939, as amended;
<PAGE>
PacifiCorp
July 29, 1996
Page 5
3. Appropriate orders authorizing the issuance of the Unsecured
Debt Securities 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 and an appropriate notice filing shall
have been made with the Washington Utilities and
Transportation Commission;
4. The Finance Committee or the Pricing Committee of the
Company's Board of Directors shall have duly adopted
appropriate resolutions establishing one or more series of
Unsecured Debt Securities, fixing certain of the terms
thereof, authorizing the execution and delivery of the
Unsecured Debt Securities and authorizing or ratifying such
other corporate acts as may be necessary in connection with
the issuance and sale of the Unsecured Debt Securities;
5. The Unsecured Debt Securities 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.
(h) When the steps set forth in paragraph (g) shall have been taken,
the Unsecured Debt Securities 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 usury laws of any state upon the
enforceability of rights of the holders of the Unsecured Debt
Securities.
We hereby authorize and consent to the use of this opinion as Exhibit
5 of 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
<PAGE>
PacifiCorp
July 29, 1996
Page 6
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 LLP
July 29, 1996
PacifiCorp
700 NE Multnomah
Portland, Oregon
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited
interim financial information of PacifiCorp and subsidiaries for the period
ended March 31, 1996 and 1995, as indicated in our report dated April 29,
1996; because we did not perform an audit, we expressed no opinion on that
information.
We are aware that our report referred to above, which is included in your
Quarterly Report on Form 10-Q for the quarter ended March 31, 1996, is
being used in this Registration Statement.
We also are aware that the aforementioned report, pursuant to Rule 436(c)
under the Securities Act of 1933, is not considered a part of the
Registration Statement prepared or certified by an accountant or a report
prepared or certified by an accountant within the meaning of Sections 7 and
11 of that Act.
DELOITTE & TOUCHE LLP
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
PacifiCorp:
We consent to the incorporation by reference in this Registration Statement
of PacifiCorp on Form S-3 of our report dated February 13, 1996 (which
expresses an unqualified opinion and includes an explanatory paragraph
relating to the change in the Company's method of accounting for income
taxes and other postretirement benefits) incorporated by reference in the
Annual Report on Form 10-K of PacifiCorp for the year ended December 31,
1995 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
July 25, 1996
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Frederick W. Buckman and Richard T. O'Brien, and each of them,
his or her true and lawful attorneys and agents, with full power of
substitution and resubstitution for him or her and in his or her name,
place and stead, in any and all capacities, to sign one or more Form S-3
Registration Statements under The Securities Act of 1933, prepared in
connection with the issuance of up to $950,000,000 of securities of
PacifiCorp in the form of Common Stock, Preferred Stock, First Mortgage and
Collateral Trust Bonds and/or Other Debt Securities, 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 or she might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them,
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: February 14, 1996
KATHRYN A. BRAUN
-----------------------------------
Kathryn A. Braun
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Frederick W. Buckman and Richard T. O'Brien, and each of them,
his or her true and lawful attorneys and agents, with full power of
substitution and resubstitution for him or her and in his or her name,
place and stead, in any and all capacities, to sign one or more Form S-3
Registration Statements under The Securities Act of 1933, prepared in
connection with the issuance of up to $950,000,000 of securities of
PacifiCorp in the form of Common Stock, Preferred Stock, First Mortgage and
Collateral Trust Bonds and/or Other Debt Securities, 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 or she might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them,
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: February 14, 1996
FREDERICK W. BUCKMAN
-----------------------------------
Frederick W. Buckman
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Frederick W. Buckman and Richard T. O'Brien, and each of them,
his or her true and lawful attorneys and agents, with full power of
substitution and resubstitution for him or her and in his or her name,
place and stead, in any and all capacities, to sign one or more Form S-3
Registration Statements under The Securities Act of 1933, prepared in
connection with the issuance of up to $950,000,000 of securities of
PacifiCorp in the form of Common Stock, Preferred Stock, First Mortgage and
Collateral Trust Bonds and/or Other Debt Securities, 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 or she might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them,
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: February 14, 1996
C. TODD CONOVER
-----------------------------------
C. Todd Conover
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Frederick W. Buckman and Richard T. O'Brien, and each of them,
his or her true and lawful attorneys and agents, with full power of
substitution and resubstitution for him or her and in his or her name,
place and stead, in any and all capacities, to sign one or more Form S-3
Registration Statements under The Securities Act of 1933, prepared in
connection with the issuance of up to $950,000,000 of securities of
PacifiCorp in the form of Common Stock, Preferred Stock, First Mortgage and
Collateral Trust Bonds and/or Other Debt Securities, 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 or she might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them,
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: February 14, 1996
NOLAN E. KARRAS
-----------------------------------
Nolan E. Karras
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Frederick W. Buckman and Richard T. O'Brien, and each of them,
his or her true and lawful attorneys and agents, with full power of
substitution and resubstitution for him or her and in his or her name,
place and stead, in any and all capacities, to sign one or more Form S-3
Registration Statements under The Securities Act of 1933, prepared in
connection with the issuance of up to $950,000,000 of securities of
PacifiCorp in the form of Common Stock, Preferred Stock, First Mortgage and
Collateral Trust Bonds and/or Other Debt Securities, 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 or she might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them,
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: February 14, 1996
KEITH R. MCKENNON
-----------------------------------
Keith R. McKennon
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Frederick W. Buckman and Richard T. O'Brien, and each of them,
his or her true and lawful attorneys and agents, with full power of
substitution and resubstitution for him or her and in his or her name,
place and stead, in any and all capacities, to sign one or more Form S-3
Registration Statements under The Securities Act of 1933, prepared in
connection with the issuance of up to $950,000,000 of securities of
PacifiCorp in the form of Common Stock, Preferred Stock, First Mortgage and
Collateral Trust Bonds and/or Other Debt Securities, 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 or she might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them,
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: February 14, 1996
ROBERT G. MILLER
-----------------------------------
Robert G. Miller
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Frederick W. Buckman and Richard T. O'Brien, and each of them,
his or her true and lawful attorneys and agents, with full power of
substitution and resubstitution for him or her and in his or her name,
place and stead, in any and all capacities, to sign one or more Form S-3
Registration Statements under The Securities Act of 1933, prepared in
connection with the issuance of up to $950,000,000 of securities of
PacifiCorp in the form of Common Stock, Preferred Stock, First Mortgage and
Collateral Trust Bonds and/or Other Debt Securities, 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 or she might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them,
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: February 14, 1996
VERL R. TOPHAM
-----------------------------------
Verl R. Topham
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Frederick W. Buckman and Richard T. O'Brien, and each of them,
his or her true and lawful attorneys and agents, with full power of
substitution and resubstitution for him or her and in his or her name,
place and stead, in any and all capacities, to sign one or more Form S-3
Registration Statements under The Securities Act of 1933, prepared in
connection with the issuance of up to $950,000,000 of securities of
PacifiCorp in the form of Common Stock, Preferred Stock, First Mortgage and
Collateral Trust Bonds and/or Other Debt Securities, 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 or she might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them,
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: February 14, 1996
DON M. WHEELER
-----------------------------------
Don M. Wheeler
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Frederick W. Buckman and Richard T. O'Brien, and each of them,
his or her true and lawful attorneys and agents, with full power of
substitution and resubstitution for him or her and in his or her name,
place and stead, in any and all capacities, to sign one or more Form S-3
Registration Statements under The Securities Act of 1933, prepared in
connection with the issuance of up to $950,000,000 of securities of
PacifiCorp in the form of Common Stock, Preferred Stock, First Mortgage and
Collateral Trust Bonds and/or Other Debt Securities, 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 or she might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them,
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: February 14, 1996
NANCY WILGENBUSCH
-----------------------------------
Nancy Wilgenbusch
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Frederick W. Buckman and Richard T. O'Brien, and each of them,
his or her true and lawful attorneys and agents, with full power of
substitution and resubstitution for him or her and in his or her name,
place and stead, in any and all capacities, to sign one or more Form S-3
Registration Statements under The Securities Act of 1933, prepared in
connection with the issuance of up to $950,000,000 of securities of
PacifiCorp in the form of Common Stock, Preferred Stock, First Mortgage and
Collateral Trust Bonds and/or Other Debt Securities, 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 or she might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them,
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: February 14, 1996
PETER I. WOLD
-----------------------------------
Peter I. Wold
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes
and appoints Frederick W. Buckman and Richard T. O'Brien, and each of them,
his or her true and lawful attorneys and agents, with full power of
substitution and resubstitution for him or her and in his or her name,
place and stead, in any and all capacities, to sign one or more Form S-3
Registration Statements under The Securities Act of 1933, prepared in
connection with the issuance of up to $950,000,000 of securities of
PacifiCorp in the form of Common Stock, Preferred Stock, First Mortgage and
Collateral Trust Bonds and/or Other Debt Securities, 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 or she might or could do in person, hereby
ratifying and confirming all that said attorneys and agents or any of them,
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Dated: February 14, 1996
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.)
700 NE Multnomah
Suite 1600
Portland, Oregon 97232-4116
(Address of principal executive offices) (Zip code)
----------------------
Unsecured Debt Securities
(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 the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(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.)
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 25th day of July, 1996.
THE BANK OF NEW YORK
By: NANCY B. GILL
-------------------------------
Name: NANCY B. GILL
Title: ASSISTANT TREASURER
<PAGE>
Exhibit 7
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 March 31,
1996, 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 depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,461,550
Interest-bearing balances .......... 835,563
Securities:
Held-to-maturity securities ........ 802,064
Available-for-sale securities ...... 2,051,263
Federal funds sold in domestic offices of the bank:
Federal funds sold ................... 3,885,475
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................27,820,159
LESS: Allowance for loan and
lease losses ..............509,817
LESS: Allocated transfer risk
reserve......................1,000
Loans and leases, net of unearned
income, allowance, and reserve 27,309,342
Assets held in trading accounts ...... 837,118
Premises and fixed assets (including
capitalized leases) ................ 614,567
Other real estate owned .............. 51,631
Investments in unconsolidated
subsidiaries and associated
companies .......................... 225,158
Customers' liability to this bank on
acceptances outstanding ............ 800,375
Intangible assets .................... 436,668
Other assets ......................... 1,247,908
-----------
Total assets ......................... $41,558,682
===========
LIABILITIES
Deposits:
In domestic offices ................ $18,851,327
Noninterest-bearing .......7,102,645
Interest-bearing .........11,748,682
<PAGE>
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 10,965,604
Noninterest-bearing ..........37,855
Interest-bearing .........10,927,749
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,224,886
Securities sold under agreements
to repurchase .................... 29,728
Demand notes issued to the U.S.
Treasury ........................... 118,870
Trading liabilities .................. 673,944
Other borrowed money:
With original maturity of one year
or less .......................... 2,713,248
With original maturity of more than
one year ......................... 20,780
Bank's liability on acceptances exe-
cuted and outstanding .............. 803,292
Subordinated notes and debentures .... 1,022,860
Other liabilities .................... 1,590,564
-----------
Total liabilities .................... 38,015,103
-----------
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 2,078,197
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ 3,197
Cumulative foreign currency transla-
tion adjustments .................. ( 5,765)
-----------
Total equity capital ................ 3,543,579
-----------
Total liabilities and equity
capital ........................... $41,558,682
===========
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.
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
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.)
700 N.E. MULTNOMAH, SUITE 1600
PORTLAND, OREGON 97232-4116
(Address of principal executive offices) (Zip Code)
-------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
-------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
New York State Banking Department, State House, Albany, New
York 12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C.,
20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
2
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit 1 to
Form T-1 filed in connection with Registration Statement No. 33-50010,
which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 33-84460,
which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or
examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939
the Trustee, Chemical Bank, 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 12TH
day of JULY, 1996.
CHEMICAL BANK
By GLENN G. MCKEEVER
-------------------------------------
Glenn G. McKeever
Senior Trust Officer
3
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1996, 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 MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................. $ 3,391
Interest-bearing balances ......................... 2,075
Securities: ...........................................
Held to maturity securities............................. 3,607
Available for sale securities........................... 29,029
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold ................................ 1,264
Securities purchased under agreements to resell ... 354
Loans and lease financing receivables:
Loans and leases, net of unearned income... $73,216
Less: Allowance for loan and lease losses.. 1,854
Less: Allocated transfer risk reserve ..... 104
------
Loans and leases, net of unearned income,
allowance, and reserve ............................ 71,258
Trading Assets ......................................... 25,919
Premises and fixed assets (including capitalized
leases)............................................ 1,337
Other real estate owned ................................ 30
Investments in unconsolidated subsidiaries and
associated companies............................... 187
Customer's liability to this bank on acceptances
outstanding ....................................... 1,082
Intangible assets ...................................... 419
Other assets ........................................... 7,406
--------
TOTAL ASSETS ........................................... $147,358
========
4
<PAGE>
LIABILITIES
Deposits
In domestic offices ............................... $ 45,786
Noninterest-bearing ....................... $14,972
Interest-bearing .......................... 30,814
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ......................................... 36,550
Noninterest-bearing ....................... $ 202
Interest-bearing .......................... 36,348
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 IBF's
Federal funds purchased ........................... 11,412
Securities sold under agreements to repurchase .... 2,444
Demand notes issued to the U.S. Treasury ............... 699
Trading liabilities .................................... 19,998
Other Borrowed money:
With a remaining maturity of one year or less ..... 11,305
With a remaining maturity of more than one year ... 130
Mortgage indebtedness and obligations under capitalized
leases ............................................ 13
Bank's liability on acceptances executed and outstanding 1,089
Subordinated notes and debentures ...................... 3,411
Other liabilities ...................................... 6,778
TOTAL LIABILITIES ...................................... 139,615
-------
EQUITY CAPITAL
Common stock ........................................... 620
Surplus ................................................ 4,664
Undivided profits and capital reserves ................. 3,058
Net unrealized holding gains (Losses)
on available-for-sale securities ....................... (607)
Cumulative foreign currency translation adjustments .... 8
TOTAL EQUITY CAPITAL ................................... 7,743
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .......................... $147,358
========
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true to the best
of my knowledge and belief.
JOSEPH L. SCLAFANI
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 appropriate
Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
THOMAS G. LABRECQUE )
5
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
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.)
700 N.E. MULTNOMAH, SUITE 1600
PORTLAND, OREGON 97232-4116
(Address of principal executive offices) (Zip Code)
-------------------------------------------
FIRST MORGAGE BONDS
(Title of the indenture securities)
-------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
New York State Banking Department, State House, Albany, New
York 12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C.,
20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
2
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit 1 to
Form T-1 filed in connection with Registration Statement No. 33-50010,
which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 33-84460,
which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or
examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939
the Trustee, Chemical Bank, 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 12TH
day of JULY, 1996.
CHEMICAL BANK
By GLENN G. MCKEEVER
-------------------------------------
Glenn G. McKeever
Senior Trust Officer
3
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1996, 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 MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................. $ 3,391
Interest-bearing balances ......................... 2,075
Securities: ...........................................
Held to maturity securities............................. 3,607
Available for sale securities........................... 29,029
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold ................................ 1,264
Securities purchased under agreements to resell ... 354
Loans and lease financing receivables:
Loans and leases, net of unearned income... $73,216
Less: Allowance for loan and lease losses.. 1,854
Less: Allocated transfer risk reserve ..... 104
------
Loans and leases, net of unearned income,
allowance, and reserve ............................ 71,258
Trading Assets ......................................... 25,919
Premises and fixed assets (including capitalized
leases)............................................ 1,337
Other real estate owned ................................ 30
Investments in unconsolidated subsidiaries and
associated companies............................... 187
Customer's liability to this bank on acceptances
outstanding ....................................... 1,082
Intangible assets ...................................... 419
Other assets ........................................... 7,406
--------
TOTAL ASSETS ........................................... $147,358
========
4
<PAGE>
LIABILITIES
Deposits
In domestic offices ............................... $ 45,786
Noninterest-bearing ....................... $14,972
Interest-bearing .......................... 30,814
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ......................................... 36,550
Noninterest-bearing ....................... $ 202
Interest-bearing .......................... 36,348
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 IBF's
Federal funds purchased ........................... 11,412
Securities sold under agreements to repurchase .... 2,444
Demand notes issued to the U.S. Treasury ............... 699
Trading liabilities .................................... 19,998
Other Borrowed money:
With a remaining maturity of one year or less ..... 11,305
With a remaining maturity of more than one year ... 130
Mortgage indebtedness and obligations under capitalized
leases ............................................ 13
Bank's liability on acceptances executed and outstanding 1,089
Subordinated notes and debentures ...................... 3,411
Other liabilities ...................................... 6,778
TOTAL LIABILITIES ...................................... 139,615
-------
EQUITY CAPITAL
Common stock ........................................... 620
Surplus ................................................ 4,664
Undivided profits and capital reserves ................. 3,058
Net unrealized holding gains (Losses)
on available-for-sale securities ....................... (607)
Cumulative foreign currency translation adjustments .... 8
TOTAL EQUITY CAPITAL ................................... 7,743
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .......................... $147,358
========
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true to the best
of my knowledge and belief.
JOSEPH L. SCLAFANI
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 appropriate
Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
THOMAS G. LABRECQUE )
5
